SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 45658/99 by Dimitar VESELINSKI against the Former Yugoslav Republic of Macedonia

The European Court of Human Rights ( Second Section ), sitting on 30 March 2000 as a Chamber composed of

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

Mr A. Kovler, judges , and Mr E. Fribergh , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 29 June 1998 and registered on 29 January 1999,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Macedonian national, born in 1924 and living in Skopje .

A. Particular circumstances of the case

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

a. Background

In former Yugoslavia, the citizens used to pay a housing tax. With these accumulated funds the State constructed “socially owned” apartments which were then rented to individuals at legally fixed rates. The army servicemen had to pay higher monthly contributions from their salary to the Yugoslav Army for the construction of army apartments in which they were entitled to live as tenants.

The applicant, as an army serviceman, used to live until 1982 as a tenant in an apartment owned by the former Yugoslav army in Skopje . Once he started working for the Macedonian Secretary of Defence, he sought to obtain a bigger apartment. On 3 June 1982 the Governing Council of the Socialistic Republic of Macedonia ( Извршен совет ) issued a decision by which it rented to the applicant a bigger apartment in its possession. The applicant gave up his previously rented apartment which remained the property of the former Yugoslav Army. In 1985 the applicant retired and continued living in that apartment.

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) (“Z.S.О.S.”), according to which army servicemen, current and retired, could purchase apartments in which they lived with a price reduction for the amount of the paid contributions for the construction of army apartments and for development of the construction land. Section 26 provides that the same purchase conditions apply to apartments which do not belong to the army, as in the applicant’s case. According to regulations issued by the Yugoslav Federal Ministry, the price difference was to be paid by the federal army (see the Relevant domestic law).

Following the fall of Yugoslavia and a referendum held on 8 September 1991, the Former Yugoslav Republic of Macedonia declared independence and on 17 November 1991 it adopted its Constitution ( Устав ).

On 21 February 1992 the Macedonian President and the General of the Yugoslav Army concluded an agreement for 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) with the Yugoslav Ministry of Defence. According to this agreement the Macedonian Ministry of Defence took over all the obligations of the Yugoslav Army in respect of army apartments, including the obligation to sell these apartments with a price reduction. On 15 April 1992 the Macedonian Government enacted Regulation on the Terms of Purchase of the state owned Apartments and Premises Obtained from the Yugoslav Army ( Уредба за начинот и условите за продажба на становите и деловниот фонд на ЈНА што се во државна сопственост на Република Македонија). This Regulation only governs the terms of purchase by the servicemen, of the apartments which had been previously owned by the Former Yugoslav Army. It does not make any reference to purchase of apartments, which were not owned by the army by the former servicemen.

b. The applicant’s request to purchase his rented apartment

On 23 March 1993 the applicant requested the Macedonian Ministry of Defence to allow him to purchase the apartment owned by the Macedonian Government at a reduced price or to give him another apartment which used to be owned by the Former Yugoslav Army. On an unspecified date the applicant asked the Ministry of Defence to speed up the proceedings. On 4 December 1993 the Ministry informed him that it had been waiting for the Council of Ministers to settle the issue.

On 4 December 1993 the applicant instituted proceedings before the Skopje Municipal Court ( Општински суд ) against the Former Yugoslav Republic of Macedonia , requesting that the apartment be sold to him at a reduced price in accordance with section 21(2) of the 1990 Z.S.О.S. On 15 March 1994 the court granted the applicant’s request. The court held, inter alia , that the applicant, as a retired army serviceman, was entitled under sections 21(2) and 26 of the Z.S.О.S to purchase the apartment at a reduced price. The court stated in particular that the purchase price should be reduced by the re-evaluated amount of the monthly contributions which the applicant had paid to the Federal Ministry of Defence for the construction of apartments and for development of construction land.

The Attorney-General acting for the Former Yugoslav Republic of Macedonia appealed against the above decision on the ground that there was no formal agreement between the Federal Army and, at that time, the Macedonian Governing Council for an exchange of the apartments and that the applicant had given up the apartment owned by the army for a bigger apartment owned by the Governing Council. Therefore, he had accepted that the apartment in question would be subject to a different legal regime. It further stated that the Z.S.О.S had been applicable only to the apartments owned by the former Yugoslav Army which had later become property of the Macedonian Government and not to other apartments. On 31 March 1995 the Appellate Court ( Окружен суд ) dismissed the appeal on the grounds that the decision of 3 June 1982 evidenced that an exchange of the right to use the apartments between the former federal army and the Macedonian Governing Council had taken place; that that applicant, as a former officer of the Yugoslav Army had paid contributions for the construction of army apartments and was therefore entitled to purchase an apartment at a reduced price under sections 21(2) and 26 of the Z.S.О.S.; and that section 26 of the Z.S.О.S had explicitly regulated the cases of purchase of an apartment by an army serviceman that had not been owned by the army.

On 4 May 1995 the Attorney-Genera lodged an appeal on points of law with the Supreme Court ( Врховен суд ) in which it submitted, inter alia , that since the day of independence it had been for the Former Yugoslav Republic of Macedonia to regulate the use and purchase of the apartments owned by the former Yugoslav army and that the agreement which had been concluded with the army could not have been applicable to apartments not owned by the said army. In 1992 the Council of Ministers enacted a regulation which had made clear that the Z.S.O.S. applied only to sale-purchase agreements for the apartments previously owned by the former Yugoslav Army.

On 16 October 1997 the Supreme Court granted the appeal on points of law and dismissed the applicant’s request to purchase the apartment at a reduced price. It found that the 1990 Z.S.O.S. had provided for more beneficial conditions for the sale of apartments to the army servicemen, and that it had governed the relations and status of the former Yugoslav army and its housing fund, both of which had ceased to exist. The court held, inter alia , that as the Former Yugoslav Republic of Macedonia was not a legal successor of the former Yugoslav Army, it was under no obligation whatsoever to cover for the price difference. In addition, the new Macedonian Constitution had abolished special privileges of the army servicemen.

The applicant was served with the decision on 16 March 1998.

B. Relevant domestic law

a) 1990 Law on Housing of the Army’s Servicemen ( Закон за станбено обезбедување во ЈНА) enacted by the Federal Assembly of Former Yugoslavia

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-valorised 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 servicemen, the purchase price shall be reduced by the adjusted (re-evaluated) amount of the monthly contributions paid by the servicemen for construction of army apartments and development of construction land.

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 army shall pay to the owner of the apartment the price difference between the reduced and the normal purchase price.

On 19 July 1996 the Constitutional Court declared the Z.S.O.S. unconstitutional and null and void.

b) 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

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 (Z.S.O.S.). 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 concerning real property owned by it shall be transferred to the Macedonian Ministry of Defence.

c) 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 .

d) Law on the Sale of Socially Owned Apartments ( Закон за продажба на станови во општествена сопственост ) (“Z.P.S.O.S.”)

In 1993 the Macedonian Parliament adopted the Z.P.S.O.S., which provided that the tenants of “socially owned” apartments could buy them on credit and under a beneficial price. It appears that in principle the applicant is entitled to buy the apartment in Skopje under this law, but at a price which is higher than that which he would have to pay had he been allowed to purchase the apartment under the special rules for army servicemen.

COMPLAINTS

1. The applicant complains that, as a result of the Supreme Court’s decision providing that the Former Yugoslav Republic of Macedonia was not a successor of the former Yugoslav Army and therefore not under an obligation to pay the price difference for the purchase of his apartment, he has been a victim of a breach of Article 1 of Protocol No. 1 to the Convention.

2. The applicant also complains about unfairness and the outcome of the proceedings before the Supreme Court. He states, in particular, that the Supreme Court Justices were influenced by the Executive.

THE LAW

1. As regards the applicant’s complaint under Article 1 of the Protocol No. 1 to the Convention, the Court considers that it cannot, on the basis of the case file, determine its admissibility and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. As to the applicant’s complaint under Article 6 § 1 that the Supreme Court was influenced by the Executive, the Court recalls that in the Campbell and Fell v. UK judgement the Court indicated the elements which it takes into account when assessing a court’s independence, which are: the manner of appointment of its members and duration of their term of office, the existence of guarantees against outside pressure and the question whether the body presents an appearance of independence (judgement of 28 June 1984, Series A-80, p. 40, § 78).

The Supreme Court is the highest court in the Former Yugoslav Republic of Macedonia . The Supreme Court Justices are elected by the Parliament for life. They can only be disciplined by the Republic Judicial Council, which is a body independent from the Government. The applicant’s case was heard by a panel of five Justices of the Supreme Court which held their deliberations in private. Furthermore, before the Court the applicant has not substantiated his allegation that the justices were influenced by the Executive.

As to the applicant’s complaint under Article 6 § 1 about unfairness and the outcome of the proceedings before the Supreme Court, the Court recalls that it is not within the province of the Court to substitute its own assessment of the facts for that of the national courts. The Court’s task is to ascertain whether the proceedings in their entirety, including the way in which evidence was permitted, were “fair” within the meaning of Article 6 § 1 ( Dombo Beheer B.V. v. the Netherlands, judgement of 27 October 1993, § 31). The Court notes that in the instant case, the applicant was given sufficient opportunity to come forward with his arguments and that these arguments, while duly taken into account by the domestic courts, were nevertheless rejected on the basis of a reasoning which appears consistent and void of any arbitrariness.

The Court finds therefore that the applicant’s complaints concerning the alleged breach of his right under Article 6 § 1 of the Convention 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,

DECIDES TO ADJOURN the examination of the applicant’s complaint about the alleged violation of Article 1 Protocol No. 1.

DECLARES INADMISSIBLE the remainder of the application.

Erik Fribergh Christos Rozakis Registrar President