SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 46447/99 by Dimitrija DJIDROVSKI against the Former Yugoslav Republic of Macedonia

The European Court of Human Rights (First Section), sitting on 11 October 2001 as a Chamber composed of

Mr C.L. Rozakis , President , Mr A.B. Baka , Mr P. Lorenzen , Mrs M. Tsatsa-Nikolovska , Mr E. Levits , Mr A. Kovler,

Mr V. Zagrebelsky , judges , and Mr E. Fribergh , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 1 September 1998 and registered on 1 March 1999,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is a national of the Former Yugoslav Republic of Macedonia, born in 1923 and living in Skopje. He is represented before the Court by Mr Dimitar Veselinski, a retired lawyer living in Skopje.

The facts of the case, as submitted by the applicant, may be summarised as follows.

A. Particular circumstances of the case

1. Background

In former Yugoslavia, the citizens used to pay a tax for housing. On the basis of the accumulated funds the State constructed “socially owned” apartments which were then rented to individuals at legally fixed rates.

The Former Yugoslav Army was the single army on the territory of the Former Yugoslavia governed by laws which were applicable throughout former Yugoslavia. The applicant, as an officer of the former Yugoslav Army, paid high monthly contributions from his salary to the Yugoslav Army for the construction of army apartments. All army servicemen were entitled to live in army apartments as tenants.

On 28 August 1968 the applicant ceased to be an active officer of the Yugoslav Army under an early retirement scheme. At that time, he lived in Belgrade, as a tenant in an apartment which belonged to the army. On an unspecified date the applicant, having found a job in Skopje, sought to obtain the tenancy of an army apartment there. In December 1979, under an agreement between the Yugoslav Army and the Macedonian Council of Ministers, the Socialist Republic of Macedonia (at that time a member of the Yugoslav Federation) obtained the possession of the applicant's army apartment in Belgrade in exchange for an apartment in Skopje which remained the property of the Socialist Republic of Macedonia but was to be used by the Yugoslav Army. In July 1980 the applicant moved in the apartment in Skopje.

On 29 December 1990 the Federal Assembly of Former Yugoslavia enacted a Law on Housing of the Army Servicemen (Закон за станбено обезбедување во ЈНА) (“the Z.S.О.J.N.A.”) according to which army servicemen, current and retired, could purchase apartments in which they lived with a price adjustment for the amount of the paid contributions for the construction of army apartments and for the development of the construction land. Section 26 provides that the same purchase conditions apply to apartments which do not belong to the army, as it was the case of the applicant. According to the regulations issued by the Yugoslav Federal Ministry, the price difference was to be paid by the federal army (see relevant domestic law).

Following the break-up of Yugoslavia and a referendum held on 8 September 1991, the Former Yugoslav Republic of Macedonia declared independence. On 17 November 1991 it adopted its Constitution (Устав) and the Constitutional Law for the Implementation of the Constitution (Уставен Закона за спроведување на Уставот) under which the laws from former Yugoslavia remained in force, except for the laws regulating the organisation and competence of the former Yugoslav federal organs. On 21 February 1992 the Macedonian President and the General of the Yugoslav Army concluded an agreement for the withdrawal of the Yugoslav army from the Macedonian territory.

On 28 February 1992 the Macedonian Government concluded an Agreement for Settlement of Claims and Obligations in Respect of Real Property (Спогодба за правата и обврските во врска со примопредажбата на недвижностите на територија на Република Македонија) (“the S.P.O.V.P.N.T.R.M.”) with the Yugoslav Ministry of Defence. According to this agreement the Macedonian Government took over all the obligations of the Yugoslav Army in respect of the apartments owned by it on the Macedonian territory, including the obligation to sell those apartments with a price reduction. The Macedonian Government in 1992 and 1994 enacted regulations implementing this agreement. In 1992 the Macedonian Government enacted a Regulation on the Terms of Purchase of the Apartments Obtained by Succession from the Yugoslav Army (Уредба за продажба на државниот стамбен фонд наследен од ЈНА) (“the U.P.D.S.F.N.J.A.”) according to which present and former army servicemen living in apartments owned by the Macedonian Ministry of Defence could purchase them under the Z.S.О.J.N.A..

From the Ministry of Defence's decision of 12 June 1992 it appears that the Ministry exchanged the title of its apartments which were inhabited by civilians with the title of the apartments owned by the Housing Fund (“ПУИГ”) which were inhabited by servicemen. Thereby, the servicemen were able to exercise the right under the Z.S.O.J.N.A. and to purchase the apartments at a reduced price. However, this exchange was limited and concerned only six apartments owned by the Housing Fund and twenty owned by the Ministry. No details were provided as to the criteria concerning the exchange.

On 17 February 1993 the amended version of the 1990 Law on the Sale of Socially Owned Apartments (Закон за продажба на станови во општествена сопственост) (“Z.P.S.O.S.”) which entitled the tenants to purchase the apartments on credit and at a beneficial price was promulgated in the Official Gazette. Unlike the Z.S.О.J.N.A., the law did not provide for a price adjustment for the amount of the paid contributions for the construction of “socially owned” apartments and for development of the construction land, despite the fact that the tenants had also paid them.

On 26 June 1996 the Constitutional Court abrogated the Z.S.O.J.N.A. without retroactive effect and the respective Government's regulations on the ground that they had been contrary to the 1991 Constitution. In particular, it stated that: a) the Yugoslav Army, its “housing fund” and the “social ownership” no longer existed; b) the 1991 Constitution had abolished all the privileges enjoyed by the army servicemen; and c) the Z.S.O.J.N.A. had created an unequal treatment in comparison to the citizens who were entitled to purchase their apartments under the Z.P.S.O.S.. The S.P.O.V.P.N.T.R.M. was not mentioned in the Constitutional Court's decision.

2. The applicant's request to purchase the apartment in Skopje

Between 1992 and 1994, the applicant submitted several requests under the Z.S.О.J.N.A. and the U.P.D.S.F.N.J.A. to the Macedonian Ministry of Defence to purchase the apartment in Skopje where he had been living since 1980 as a tenant. The Ministry of Defence informed him, and seven other servicemen of the former Yugoslav Army, that the examination of their requests had been postponed due to some formalities.

On 20 October 1993 the applicant and fifteen other persons asked the Constitutional Court to examine the compatibility of the Z.P.S.O.S. and the relevant regulations issued by the Ministry of Defence with the Z.S.O.J.N.A. (see the relevant domestic law). On 29 December 1993 this was refused by the Constitutional Court.

On 6 February 1995 the applicant submitted another request to purchase the apartment to the President of the Republic who transmitted it to the Macedonian Ministry of Defence.

On 22 March 1995 the Ministry of Defence informed the applicant that his request to purchase the apartment had been dismissed on the ground that the U.P.D.S.F.N.J.A did not apply to apartments other than those which belonged to the Yugoslav Army. In particular, the Ministry stressed that Section 2 § 2 of the 1992 Regulation on the Sale of Apartments for which the Republic has Responsibilities and Rights (Одлука за продажба на становите на кои права, должности и одговорности во поглед на располагањето има Републиката) (“O.P.S.P.D.O.R.”) provided that the U.P.D.S.F.N.J.A. did not apply to apartments not owned by the Macedonian Ministry of Defence. The Ministry argued that on 21 September 1994 the Council of Ministers had taken a similar position in respect of this issue. The applicant would have had the right to purchase the apartment under the U.P.D.S.F.N.J.A. only if it had concerned an apartment owned by the said Ministry.

On 16 February 1995 the applicant instituted proceedings before the Municipal Court (Општински суд) against the Ministry of Defence, requesting that the apartment be sold to him at an adjusted price in accordance with the 1990 Z.S.О.J.N.A.. He also invoked Articles 4 and 5 of the Constitutional Law on the Implementation of the Constitution.

On 25 April 1995 the court granted the applicant's request. The court stated, inter alia, that the applicant, as an army officer, had the right to purchase the apartment at an adjusted price. In particular, the purchase price should be reduced by the re-assessed amount of the monthly contributions which the applicant had paid to the Federal Ministry of Defence for the construction of apartments and for the construction land planning. The Municipal Court found that the Macedonian Ministry of Defence was under an obligation to pay the price difference for the apartment.

The Macedonian Ministry of Defence appealed against this decision on grounds that in accordance with a Government Decision the Z.S.О.J.N.A. only applied to apartments owned by the Macedonian Army. On 1 February 1996 the Appellate Court (Окружен суд) upheld the decision of the lower court on the ground that the applicant, as a former officer of the Yugoslav Army had paid contributions for the construction of army apartments and, therefore, was entitled to purchase an apartment at an adjusted price under the Z.S.O.J.N.A.. The court held, inter alia, that the lower court had reasoned correctly when it had connected the benefit of purchasing an apartment at an adjusted price to the status of the applicant as a former army officer who had been paying contributions and not whether the apartment belonged to the former Yugoslav army or not.

Upon the Ministry of Defence's appeal on points of law (ревизија), on 18 December 1997 the Supreme Court (Врховен суд) quashed the lower courts' judgements and dismissed the applicant's request to purchase the apartment at a reduced price.

The Supreme Court noted that in accordance with Article 5 § 1 of the Constitutional Law on the Implementation of the Constitution of the Former Yugoslav Republic of Macedonia the federal laws of the former Yugoslavia remained in force as Macedonian laws provided that they were harmonised with the Constitution. The powers which were previously exercised by the federal organs were allocated to the bodies of the Former Yugoslav Republic of Macedonia. The Z.S.O.J.N.A. remained in force as Macedonian law.

The Supreme Court found that under the Z.S.O.J.N.A. it was the Yugoslav army to make up for the price difference for the adjustment of the prices of the apartments which were not owned by the Yugoslav army. However, on 17 November 1991 the Former Yugoslav Republic of Macedonia enacted its Constitution and became an independent State. Since then there was no Yugoslav Army nor was there its housing fund on the territory of the Former Yugoslav Republic of Macedonia. Therefore, the applicant could not have the price for his apartment reduced as there had been no Yugoslav Army to cover the price difference.

The court did not mention at all the decision of the Constitutional Court nor it mentioned the S.P.O.V.P.N.T.R.M..

The applicant was served with the decision on 4 March 1998.

B. Relevant domestic law

1. 1991 Constitution

Article 110, as far as relevant, provides as follows:

“The Constitutional Court of Macedonia:

...

3) safeguards the freedoms and rights of the individuals and citizens concerning the freedom of communication, conscience, thought and action, and the prohibition of discrimination among citizens on the grounds of sex, race, religion or, national, social or political affiliation;

...”

2. Rules of the Constitutional Court

Section 12 provides that any citizen can institute proceedings before the Constitutional Court for the assessment of the conformity of laws and regulations with the Constitution.

Section 51 provides that a person who claims to be a victim of a violation of one of the rights set out in Article 110 § 3 of the Constitution shall have the right to file an application with the Constitutional Court.

3. 1991 Constitutional Law on Implementation of the Constitution (Уставен закон за спроведување на Уставот на Република Македонија)

Article 4 provides that all issues of succession arising out of the break-up of Yugoslavia shall be regulated by way of treaties with the other former republics. The succession issues following the break-up of the Former Yugoslavia are still not resolved.

Article 5 §§ 1 and 4 provides that the existing federal laws of the former Yugoslavia shall be in force in the Former Yugoslav Republic of Macedonia with the exception of laws regulating the organisation and competence of the Yugoslav federal organs.

Article 6 provides that all federal laws which are inconsistent with the Macedonian Constitution shall be amended accordingly within one year from the day when the Constitution was promulgated.

4. 1990 Law on Housing of the Army Servicemen (Закон за станбено обезбедување во ЈНА) enacted by the Federal Assembly of Former Yugoslavia (“the Z.S.O.J.N.A.”)

Section 1 provides that this Law regulates the housing of present and former Yugoslav Army servicemen and their families.

Section 21 § 1 provides that the purchase price for an apartment owned by the Yugoslav Army shall be determined on the basis of the apartment's re-assessed construction value, its quality, equipment, location and other similar factors. The price thus determined shall be reduced by the amortisation of the apartment, but not more than 50% of the total amount of amortisation.

Section 21 § 2 provides that when an apartment is purchased by an active or retired army serviceman, the price shall be reduced by the adjusted (re-assessed) amount of the monthly contributions paid by the servicemen for construction of army apartments and construction land planning.

Section 26 provides that when an army serviceman mentioned in Section 21 § 2 wishes to purchase an apartment which is not owned by the army, the former Yugoslav army shall make up for the price difference between the adjusted and the normal price.

5. Agreement for Settlement of Claims and Obligations in Respect of Real Property (Спогодба за правата и обврските во врска со примопредажбата на недвижностите на територија на Република Македонија) of 28 February 1992 (“the S.P.O.V.P.N.T.R.M.”)

According to Section 2 § 2 of that agreement, concluded between the Macedonian Ministry of Defence and the former Yugoslav Army, army apartments should be sold to army servicemen under the conditions set forth in the 1990 former Yugoslav Law on the Housing of the Army Servicemen (“the Z.S.O.J.N.A.”). Section 9 of the said agreement provides that the former Yugoslav Army shall not have any right to impose further obligations on the Macedonian Ministry of Defence after the signing of the agreement. Section 10 provides that all other rights and obligations which the former Yugoslav Army had on the territory of the Former Yugoslav Republic of Macedonia until 28 February 1992 in connection with real property, housing fund and business premises owned by it shall be transferred to the Macedonian Ministry of Defence.

6. 1992 Law on Defence

Section 134 of the Law on Defence (Закон за одбрана) provides that real property that was owned by the former Yugoslav Ministry of Defence on the territory of the Former Yugoslav Republic of Macedonia shall become the property of the Former Yugoslav Republic of Macedonia.

7. Code of Civil Procedure

Article 381 § 1 of the Code of Civil Procedure (Закон за парнична постапка) provides that when the Supreme Court (Врховен суд) finds that the substantive provisions of a law are wrongly applied by the lower courts, it shall grant the appeal on points of law (ревизија) and deliver a judgement on the merits.

COMPLAINTS

1. The applicant complains under Article 1 of Protocol No. 1 to the Convention that the decisions of the Ministry of Defence and of the Supreme Court deprived him of the right to purchase an apartment with a price adjustment.

2. The applicant invokes Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 stating that he was discriminated against in comparison to other former Yugoslav Army servicemen.

3. The applicant also complains under Article 6 § 1 of the Convention about the alleged unfairness and the outcome of the proceedings before the Supreme Court. He states that they had political connotations and that the judges were biased and acted to preserve the property of the Ministry of Defence.

THE LAW

1. The applicant complained under Article 1 of Protocol No. 1 to the Convention that the decisions of the Ministry of Defence and of the Supreme Court deprived him of the right to purchase an apartment with a price adjustment. The applicant also invoked Article 14 of the Convention stating that he was discriminated against in comparison to other former Yugoslav Army servicemen.

Article 1 of Protocol No. 1 provides as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

Article 14 provides as follows:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Government raised an objection concerning the applicant's complaint that he had been discriminated against in comparison to other former Yugoslav Army servicemen who had been allowed to purchase the apartments at a reduced price, as he had not submitted an individual application to the Constitutional Court in this regard.

The applicant replied that on 20 October 1993 he and fifteen other persons had asked the Constitutional Court to examine the compatibility of the Z.P.S.O.S. and other relevant regulations with the Z.S.O.J.N.A., but that this request had been dismissed on 29 December 1993.

The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be made subsequently at Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see, among many other authorities, the Yasa v. Turkey judgment of 2 September 1998, Reports of Judgments and Decisions 1998-VI, p. 2431, § 71).

The Court notes that Article 110 § 3 of the Constitution provides for restricted grounds to file an individual application with the Constitutional Court, and that the Government did not supply any judicial decisions which would prove that such an application in similar cases was an effective domestic remedy. In these circumstances, the Court finds that the applicant was not under a duty to file an individual application with the Constitutional Court. It further notes that on 20 October 1993 the applicant raised his complaint in substance before the Constitutional Court.

Therefore, the Court rejects the Government's objection raised under Article 35 § 1.

The Government submitted that Article 1 of Protocol No. 1 to the Convention was not applicable to the present case. It could not be considered that the applicant had had a “legitimate expectation” of purchasing an apartment at a reduced price on the ground that he had paid monthly contributions for the construction of the military apartments and for the land planing. These contributions had been paid by all the citizens of the former Yugoslavia on the basis of solidarity and most of them had never had the privilege to live in “socially or army owned apartments” and to purchase them.

The prices of goods subject to sale in commercial activities had not come within the scope of Article 1 of Protocol No. 1 to the Convention. The State did not have any obligation, under this Article, to assist a private person to acquire goods at a reduced price.

Taking into consideration the fact that the sale of the apartment had involved contractual relationship between the applicant and the State and that the only issue to settle in the instant case had been the issue of the price, the Government considered that Article 1 of Protocol No. 1 was not applicable to the facts of the case. At any rate, the applicant had been entitled under the Z.P.S.O.S. to purchase the apartment where he had been living as a tenant.

The Government submitted that the Former Yugoslav Republic of Macedonia, as an independent State had been free to accept only those federal laws which were indispensable for the functioning of the State. The Z.S.O.J.N.A., a law of the former federation, had been abrogated by a decision of the Constitutional Court for being incompatible with the 1991 Constitution. The Government regulations issued in connection with the terms for sale of the apartments transferred by the former Yugoslav army had also been abrogated.

The Z.S.O.J.N.A. had not been applicable in the applicant's case. Although the applicant had been a former army serviceman, the Z.S.O.J.N.A. had not imposed any obligations on the Government to sell to him the apartment at a priced reduced for the amount that he had paid for the construction of the military apartments and land planning, as his apartment had not been owned by the former Yugoslav Army.

The Government further submitted that the applicant had freely accepted the exchange of the apartments as he had found a job in Skopje as a civil pilot, thereby he had voluntarily accepted the change in the ownership and the different statutory rules on ownership resulting from that.

The applicant maintained that Article 1 of Protocol No. 1 was applicable. As an army serviceman he had had to allocate 4.5-6% from his salary for the construction of army apartments whereas the civilians had had to allocate only 2-4% for the construction of “socially owned apartments”. In addition, 50 % of his monthly rent had been paid to the civil Local Housing Unit (SIZ). Therefore, he had had a “legitimate expectation” to purchase the apartment at a reduced price.

The applicant affirmed that he had been deprived of his right to purchase the apartment at a reduced price. He could not have reasonably foreseen that the Socialist Federal Republic of Yugoslavia (SFRY) would fall apart and that he would be deprived of the right to purchase the apartment at a reduced price, unlike other former servicemen who had exercised this right.

The applicant submitted that there had been no difference between the apartments which used to be owned by the Former Yugoslav Army and the apartments which used to be owned by the Council of Ministers of the Socialist Republic of Macedonia, as they now belonged to a single State Housing Fund owned by the Government of the Former Yugoslav Republic of Macedonia. Whether the person in question had been a serviceman or not had been the only ground to entitle a person to purchase an apartment from this single State-owned fund at a reduced price.

The applicant stated that according to the rules on conflict of laws the applicable law was the one which had been more beneficial for the party in the proceedings. In his case, there being a conflict between the Z.P.S.O.S. and the Z.S.O.J.N.A. the latter should have prevailed.

The applicant further stated that since there had been a valid law governing his rights in regard of the purchase of the apartment, i.e., the Z.S.O.J.N.A., he could not have been deprived of this right on the basis of the Government's regulations.

The applicant observed that the Constitutional Law on Implementation of the Constitution had provided for harmonisation of all federal laws with the 1991 Constitution within a year. However, the Z.S.O.J.N.A. had been abrogated not earlier than 1996, after 7,800 apartments had been sold to the army servicemen.

The applicant argued that he had been discriminated against in comparison to some other former army servicemen who had purchased the apartments at a reduced price, although they had not been owned by the Former Yugoslav Army. In particular, the titles of some of these apartments, where the former army servicemen were tenants, had been transferred to the Macedonian Ministry of Defence by Government decision and later purchased by their tenants, former servicemen, at a reduced price.

Having examined the complaints, the Court finds that they raise serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. The complaints cannot, therefore, be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other grounds for declaring them inadmissible have been established.

2. The applicant complained under Article 6 § 1 about the alleged unfairness and the outcome of the proceedings before the Supreme Court. In particular, they had political connotations, the judges were biased and acted so as to preserve the property of the Ministry of Defence.

Article 6 § 1, as far as relevant, provides as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal...”

In the light of all the material in its possession and insofar as the applicant's complaints about the alleged unfairness and the outcome have been substantiated, the Court finds that they do not disclose any appearance of a violation of the Convention. The Court recalls in particular that its task when examining a complaint about fairness under Article 6 of the Convention is not to adjudicate on the dispute which was the subject - matter of the domestic proceedings, but to assess whether the proceedings were fair within the meaning of that provision (the Helle v. Finland judgment of 19 December 1997, Reports of Judgments and Decisions 1997 - viii, p.2928, § 53). The Court further observes that the applicant has not substantiated his allegations that the judges were influenced by the Government.

It follows that the complaints are manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and therefore must be rejected in accordance with Article 35 § 4.

For these reasons, the Court, unanimously,

Declares admissible, without prejudging the merits, the applicant's complaints under Article 1 of Protocol No. 1, taken alone and in conjunction with Article 14 of the Convention;

Declares inadmissible the remainder of the application.

Erik Fribergh Christos Rozakis Registrar President