Communicated on 17 November 2020 Published on 7 December 2020

FOURTH SECTION

Application no. 28416/19 Esad FEJZAGIĆ against Bosnia and Herzegovina lodged on 20 May 2019

SUBJECT MATTER OF THE CASE

The application concerns a flat in Ferhadija , in the heart of Sarajevo. The applicant is a co-owner of the flat. The family S moved into the flat in 1946 or 1947. They were subsequently allocated an occupancy right on it. An occupancy right, once allocated, entitled the occupancy right holder to permanent, lifelong use of the flat against the payment of a small fee. When occupancy right holders died, their rights transferred, as a matter of right, to their surviving spouses or members of their family households who were also using the flat. Occupancy rights could be cancelled only in court proceedings on limited grounds, the most important of which was failure by the occupancy right holders to physically use their flats for their own housing needs for a continuous period of at least six months, without justified grounds. Consequently, when the applicant ’ s family bought the flat in 1970, the prospect of moving into it was theoretical at best. They were entitled only to a symbolic rent. In 2000 the concept of occupancy rights was abandoned. Those who had an occupancy right on a socially owned flat (practically all flats were under the regime of “social ownership”) have been entitled to purchase them under very favourable terms. In contrast, those who had an occupancy right on a privately owned flat, as in the present case, have not been entitled to buy them. From 2000 until 2015 (when the Flat Lease Act 2015 [1] entered into force), they were entitled to continue using them under almost identical conditions, without being obliged to pay any rent. The Flat Lease Act 2015 regulated the status of the privately owned flats burdened with an occupancy right in the Sarajevo Canton. The former “occupancy right holders” became, by virtue of law, the “protected tenants”. Pursuant to that Act, the protected tenants are entitled to continue using the flats until the local authorities allocate them a suitable replacement flat. When protected tenants die, their rights transfer, as a matter of right, to their surviving spouses or members of their family households who were using the flat on 6 December 2000 (when the concept of occupancy rights was abandoned). Lastly, the protected tenants are obliged to pay a regulated rent. The applicant pursued civil proceedings against the family S claiming a fair rent or their eviction. While acknowledging that the flat constituted the applicant ’ s “possessions” within the m eaning of Article 1 of Protocol No. 1 to the Convention, the domestic courts rejected the claim. They relied, among other grounds, on the fact that the family S had been using the flat, as their home, for decades; that the flat had already been burdened with an occupancy right when the applicant ’ s family had bought it; that there were no legal grounds to impose a higher rent on the family S; and that the civil court could not deal with the applicant ’ s rights vis-à-vis the relevant authorities since the applicant had pursued his case against the family S only. The final domestic decision was rendered by the Constitutional Court on 23 October 2018 and served on the applican t on 13 December 2018. The applicant compla ins under Article 1 of Protocol No. 1 that he has never been able to charge a fair rent.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, was the civil action for damages against the Sarajevo Canton, which is responsible for all matters that affect housing policy in its territory, an effective remedy within the meaning of this provision in respect of the applicant ’ s complaint under Article 1 of Protocol No. 1? The parties are required to provide the relevant domestic case-law in that regard.

2. Has a disproportionate and excessive individual burden been placed on the applicant in violation of Article 1 of Protocol No. 1 (see, for instance, Mellacher and Others v. Austria , 19 December 1989, Series A no. 169; Hutten- Czapska v. Poland [GC], no. 35014/97, ECHR 2006 ‑ VIII; Łącz v. Poland ( dec. ), no. 22665/02, 23 June 2009; Nobel v. the Netherlands ( dec. ), no. 27126/11 and 3 other applications, 2 July 2013; Bittó and Others v. Slovakia , no. 30255/09, 28 January 2014; Berger-Krall and Others v. Slovenia , no. 14717/04, 12 June 2014; Statileo v. Croatia , no. 12027/10, 10 July 2014; Anthony Aquilina v. Malta , no. 3851/12, 11 December 2014; and Kasmi v. Albania , no. 1175/06, 23 June 2020)?

3. How many flats were there in Sarajevo in 1945? How many of them were nationalised or confiscated and how many of them were allocated to a third person while remaining privately owned until 1974? On the basis of which criteria the then authorities decided which flats would be nationalised or confiscated and which would remain privately owned? The parties are requested to provide the relevant legislation from that period.

4. In 2000, when the concept of occupancy rights was abandoned, how many privately owned flats were still encumbered with an occupancy right in Sarajevo? How many of such flats are there today?

5. When exactly did the family S move into the flat at issue and on what grounds? When were they allocated an occupancy right on it? Why did the applicant ’ s family buy the flat in 1970, given that it was encumbered with an occupancy right? As regards the price paid by the applicant ’ s family (that is, 30,000 Yugoslav dinars), what was the value of the Yugoslav dinar to the German mark in January 1970? What were the average salary and the average pension in January 1970?

6. Have the applicant ’ s family had any expenses in respect of the flat at issue since 1970 (for example, maintenance costs, condominium fees, taxes, repairs, or any other costs)? How much have the applicant ’ s family earned from the flat by way of rent since 1970? The parties are required to indicate the rental amount paid to the applicant ’ s family for each year since 1970.

7. What has been the level of rent paid by tenants in State-owned flats in the Sarajevo Canton since 2002 (the category of tenants described in section 3(1)(c) and (d) of the Flat Lease Act 2015 ( Zakon o zakupu stana , published in the Official Gazette of the Sarajevo Canton no. 24/15))? If tenants in State-owned flats pay more than protected tenants in privately owned flats, what is the reason for that?

8. What is the mechanism for the allocation of suitable replacement flats to protected tenants in privately owned flats in the Sarajevo Canton? The parties are requested to provide the relevant legislation.

9. How many suitable replacement flats have so far been allocated to protected tenants in privately owned flats in the Sarajevo Canton? What is the status of the application for such a flat lodged by the family S in 2008? Is the Sarajevo Canton obliged to allocate such a flat to the family S, in view of the fact that section 2(2) of the Management of Housing (Amendments) Act 2008 ( Zakon o izmjenama i dopunama Zakona o vraćanju , dodjeli i prodaji stanova , published in the Official Gazette of the Federation of Bosnia and Herzegovina no. 2/08) was revoked by the Constitutional Court of the Federation of Bosnia and Herzegovina on 24 June 2008? If the proceedings initiated by the family S in 2008 are still pending, do they have an effective domestic remedy enabling them to speed up the proceedings? The parties are requested to provide the relevant domestic case-law in that connection.

10. Have the applicant and the family S concluded a contract, as required by sections 6 and 10 of the Flat Lease Act 2015? If not, what was the reason for this failure? If the family S have refused to conclude a rent contract, has the applicant lodged an action for their eviction on that ground? If not, what was the reason for him omitting to do so? If the applicant has refused the conclusion of the rent contract, has he been prosecuted pursuant to section 31 of the Flat Lease Act 2015? If not, what was the reason for omitting to do so?

11. How much should the family S be paying by way of rent pursuant to section 12 of the Flat Lease Act 2015? Are they actually paying that amount? If not, has the applicant lodged an action for their eviction on that ground?

12. What has been the estimated market rent obtainable from the flat at issue for each year since 2002? If the family S would have to pay a market rent, would they be entitled to any housing benefits? Are there any housing benefits for indigent tenants in the Sarajevo Canton?

[1] Zakon o zakupu stana , published in the Official Gazette of the Sarajevo Canton no. 24/15.