Lexploria

FIFTH SECTION

DECISION

Application no . 67618/09 Stevan STEVANČEVIĆ against Bosnia and Herzegovina

The European Court of Human Rights (Fifth Section), sitting on 10 January 2017 as a Chamber composed of:

Erik Møse, President , Angelika Nußberger , Ganna Yudkivska , André Potocki, Faris Vehabović , Síofra O ’ Leary, Carlo Ranzoni , judges , and Milan Blaško , Deputy Section Registrar ,

Having regard to the above application lodged on 22 October 2009,

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

1. The applicant, Mr Stevan Stevančević , is a Bosnian and Serbian national, who was born in 1945 and lives in Igalo , Montenegro. He was represented before the Court by Mr G. Latinović , a lawyer practising in Igalo .

2. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Agent at the time, Ms M. Mijić .

3. The Serbian Government , having been informed of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), indicated that they did not wish to exercise that right.

A. Relevant background

4. The applicant was an officer of the JNA, the armed forces of the former Socialist Federal Republic of Yugoslavia. The present case concerns his attempt to regain possession of his pre-war flat in Sarajevo.

5. The detailed background concerning socially owned flats, military flats and the involvement of foreign armed forces in the 1992-95 war in Bosnia and Herzegovina is provided in Đokić v. Bosnia and Herzegovina , no. 6518/04 , § § 5-17, 27 May 2010 and Mago and Others v. Bosnia and Herzegovina , nos. 12959/05 et al . , § § 5-8, 3 May 2012.

B. The circumstances of the case

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

7. In 1984 the applicant was allocated an occupancy right to a military flat in Sarajevo.

8 . On 13 February 1992 he bought that flat under the terms of the Military Flats Act 1990 and paid the full purchase price in the amount of 595,066 Yugoslav dinars (approximately 7,067 German marks (DEM) at the time).

9. When the JNA formally withdrew from Bosnia and Herzegovina on 19 May 1992, the applicant continued his military career in the VJ [1] forces and left Sarajevo. His military service was terminated in 1999.

1. Restitution proceedings

10. During the 1992-95 war in Bosnia and Herzegovina the flats of those who had fled were declared “abandoned” and allocated to new occupants (see Mago and Others , cited above, § 53). On 7 September 1998 the applicant applied for the restitution of his flat to the competent administrative authority in the Sarajevo Canton.

11. Following one remittal on procedural grounds, on 14 November 2002 his application was rejected pursuant to section 3a of the Restitution of Flats Act 1998. On 28 July 2003 the competent Ministry of the Sarajevo Canton upheld that decision.

12. On 25 September 2006 the Sarajevo Cantonal Court (“the Cantonal Court”), following an application for judicial review, upheld the second-instance decision of 28 July 2003.

13. On 10 June 2009 the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”) rejected the applicant ’ s constitutional appeal and upheld the impugned decisions.

2. Proceedings before the Human Rights Chamber and the Human Rights Commission

14. On 11 February 2001 the applicant complained to the Human Rights Chamber (a domestic human-rights body set up under Annex 6 to the Dayton Peace Agreement) about his inability to repossess his pre-war flat. He relied on Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention.

15 . On 12 May 2005 the Human Rights Commission ( the legal successor of the Human Rights Chamber ) found a violation of Article 6 of the Convention on account of the length of the restitution proceedings and awarded the applicant 1,000 convertible marks (BAM; approximately 500 euros (EUR)) for non-pecuniary damage in this connection. As regards the complaint under Article 1 of Protocol No. 1, the Commission concluded that the interference with the applicant ’ s right to the peaceful enjoyment of his possessions had been justified. However, it ordered the Government of the Federation of Bosnia and Herzegovina to secure the applicant ’ s right to compensation for his pre-war flat envisaged under section 39e of the Privatisation of Flats Act 1997, without further delay and at the latest within three months from the delivery of that decision.

16. On 5 July 2005 the government of the Federation of Bosnia and Herzegovina requested the applicant to provide his contact and bank account details in order to pay the awarded compensation. The applicant provided those details.

17. On 28 January 2006 the applicant appealed to the Constitutional Court against the decision of the Human Rights Commission of 12 May 2005. On 14 March 2006 the Constitutional Court declared that it lacked jurisdiction to examine the case.

3. Civil proceedings concerning the validity of a purchase contract

18. On 5 July 2004 the applicant initiated proceedings before the Sarajevo Municipal Court (“the Municipal Court”) seekin g to establish the validity of the purchase contract of 13 February 1992 (see paragraph 8 above) and to register his title to the flat in the land register.

19. On 19 June 2005 the Municipal Court declared the purchase contract legally valid. However, it rejected the applicant ’ s claim to have his title registered. Under the Privatisation of Flats Act 1997 those who served in foreign armed forces after the 1992-95 war, like the applicant, were not entitled to repossess their pre-war military flats and to register their title, but were entitled to compensation. On 19 November 2008 the Cantonal Court upheld that judgment.

C. The circumstances of the case as presented by the Government

20. The Government did not dispute the facts submitted by the applicant. However, they provided additional information as follows.

21 . On 20 April 2007 the applicant received BAM 42,085.04 (approximately EUR 21,496.24) in compensation for his pre-war flat in accordance with section 39e of the Privatisation of Flats Act 1997 as ordered by the Human Rights Commission (see paragraph 15 above). The amount was transferred to his bank account in Montenegro.

D. Relevant domestic law and practice

22. The relevant domestic law and practice were outlined in Aleksić v. Bosnia and Herzegovina (no. 38233/05, §§ 16-18, 3 February 2015).

COMPLAINTS

23. Relying on Article 1 of Protocol No. 1 to the Convention, the applicant complained about his inability to regain possession of his pre-war flat. He further alleged that the impugned situation amounted to an unnecessary interference with the right to respect for his home enshrined in Article 8 of the Convention. Lastly, the applicant complained under Article 6 of the Convention about the outcome of the restitution proceedings.

THE LAW

24. The Government submitted that the applicant had failed to provide all the facts relevant to his complaints. In particular, he had omitted to inform the Court about the compensation he had received for his pre-war flat. The Government suggested, therefore, that the applicant had abused his right of application, and that accordingly, his application should be declared inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention. The Government further objected that the applicant had not complied with the six-month time-limit laid down in Article 35 § 1 of the Convention. The final decision concerning his complaints was given by the Human Rights Commission on 12 May 2005 and the application was introduced on 22 October 2009.

25. The applicant submitted that he had first learnt of the payment of the compensation from the Government ’ s observations. He then contacted his bank which confirmed that the amount of BAM 42,085.04 had been transferred to his account on 20 April 2007. As regards the Government ’ s objection that the application was out of time, the applicant submitted that the final decision in his case was the Constitutional Court ’ s decision of 10 June 2009.

26. The Court recalls that according to Rule 47 § 7 of the Rules of Court applicants shall keep the Court informed of all circumstances relevant to the application. An application may be rejected as abusive under Article 35 § 3 of the Convention if, among other reasons, it was knowingly based on untrue facts (see, among other authorities, Keretchashvili v. Georgia ( dec. ), no. 5667/02, 2 May 2006; Drijfhout v. the Netherlands ( dec. ), no. 51721/09, 22 February 2011; and Puusep v. Estonia ( dec. ), no. 67648/10, 7 January 2014). Incomplete and therefore misleading information may also amount to abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information (see Predescu v. Romania , no. 21447/03, §§ 25 and 26, 2 December 2008 and Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014). Furthermore, the Court reiterates that it cannot be its task to deal with a succession of ill-founded and querulous complaints or with otherwise manifestly abusive conduct of applicants or their authorised representatives, which creates gratuitous work for the Court, incompatible with its real functions under the Convention (see The Georgian Labour Party v. Georgia ( dec. ), no. 9103/04, 22 May 2007, and Petrović v. Serbia ( dec. ), nos. 56551/11 et al., 18 October 2011).

27. Turning to the present case, the Court notes that on 12 May 2005 the Human Rights Commission examined the merits of the applicant ’ s complaints and found a violation of Article 6 of the Convention on account of the length of the restitution proceedings. The applicant was awarded BAM 1,000 for non-pecuniary damage in this connection. While the Commission held that there had been no violation of the applicant ’ s right under Article 1 of Protocol No. 1 to the Convention, it nonetheless ordered the government of the Federation of Bosnia and Herzegovina to secure his right to compensation for his pre-war flat in accordance with the relevant legislation. Shortly thereafter, the federal government requested the applicant to provide his contact and bank account details for the purpose of enforcement of the decision of 12 May 2005. On 20 April 2007 compensation in the amount of BAM 42,085.04 was transferred to the applicant ’ s bank account in Montenegro.

28. In his application lodged on 22 October 2009 the applicant complained about his inability to regain possession of his pre-war flat, while more than two years before lodging the application he had received compensation for that flat. The Court notes that the compensation paid to the applicant was significantly higher than the amount he had actually paid for the flat (see paragraphs 8 and 21 above). In that respect, the compensation was adequate for any pecuniary loss the applicant sustained on account of his inability to regain possession of that flat. In his response to the Government ’ s observations the applicant claimed that he was not aware that the compensation had been paid. If that be the case, the applicant was nonetheless aware of the decision of the Human Rights Commission of 12 May 2005. The Court notes that he did not indicate any reason why he believed that that decision would not be enforced. Neither the applicant nor his representative, a legal professional, seem to have verified whether the compensation had been paid to the account in Montenegro the details of which had been provided by the applicant to the federal government before bringing the case before this Court. The Court notes that it seems highly improbable, given the sum involved, that the applicant neither checked his account nor was aware that such a sum of money had been transferred to the latter.

29. The Court thus considers that the conduct of the applicant was incompatible with the purpose of the right of individual application as provided for in the Convention, and significantly impeded the proper functioning of the Court. In addition, lawyers must understand that, having due regard to the Court ’ s duty to examine allegations of human rights violations, they must show a high level of professional prudence and meaningful cooperation with the Court by sparing it the introduction of unmeritorious complaints and, both before proceedings have been instituted and thereafter, they must inquire diligently into all the details of the case, meticulously abide by all the relevant rules of procedure and must urge their clients to do the same. Otherwise, the willful or negligent misuse of the Court ’ s resources may undermine the credibility of lawyers ’ work in the eyes of the Court and even, if it occurs systematically, may result in particular individual lawyers being banned from representing applicants under Rule 36 § 4 (b) of the Rules of Court (see also Petrović , cited above; Bekauri v. Georgia (preliminary objection), no. 14102/02 , § 24, 10 April 2012 ; and Buzinger v. Slovakia ( dec. ), no. 32133/10, § 24, 16 June 2015).

30. In the light of the foregoing, the Court considers that the Government ’ s objection is well-founded and the present application constitutes an abuse of the right of individual application within the meaning of Article 35 § 3 (a) in fine of the Convention . It must therefore be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 2 February 2017 .

Milan Blaško Erik Møse Deputy Registrar President

[1] The VJ forces, the armed forces of the Federal Republic of Yugoslavia, were established on 20 May 1992. In 2006 the Federal Republic of Yugoslavia was succeeded by Serbia.

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STEVANČEVIĆ v. BOSNIA AND HERZEGOVINA

STEVANČEVIĆ v. BOSNIA AND HERZEGOVINA

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