JNA apartments

A significant part of the case law of the Human Rights Chamber – and, after the dissolution of this institution, of the Human Rights Commission within the BiH Constitutional Court and of the BiH Constitutional Court – relates to the applications lodged by (former) JNA military personnel. In 1991, pursuant to the federal Law on Securing Housing for the JNA,²³⁷⁸ the JNA started transforming military apartments, houses and land, which it had at its disposal (approximately 16,000 in BiH), and which were socially-owned, into apartments in private ownership (privatisation) in favour of its members. The majority of buyers of such apartments had already lived for years in such apartments on the basis of an occupancy right. Accordingly, prior to the beginning of the war a large number of contracts on the purchase of apartments were entered into with the JNA, and in some cases the purchase price had been paid already. In the subsequent period the Government of the Socialist Republic of BiH prohibited the further sale of socially-owned property,²³⁷⁹ as the JNA lost the legitimacy to sell such apartments after BiH had gained independence.²³⁸⁰ Administrative authorities and courts delayed the procedures of concluding contracts on purchase which had begun. Besides, all the property of the SFRY, including that belonging to the JNA in the territory of BiH, became property of the Republic of BiH, and all socially-owned property was transformed into state-owned property. In February 1995, all administrative authorities and courts, pursuant to the decree of the Presidency of the Republic of BiH with legal force,²³⁸¹ terminated all procedures of purchase of apartments that had commenced. In December 1995, all contracts on the purchase of apartments, also pursuant to the presidential decree with legal force,²³⁸² were retroactively declared null and void (this decree was voted for in the form of law in 1996).²³⁸³ Some applicants were threatened with eviction,²³⁸⁴ or eviction had already been enforced.²³⁸⁵ The Human Rights Chamber confirmed that all former JNA military persons acquired ownership rights if they had concluded a valid and legal contract on the purchase of apartments prior to the entry into force of the presidential decree. Retroactive cancellation of such contracts was in contravention of the ECHR.²³⁸⁶ Damaged persons should not have been obliged, pursuant to the legal regulations on abandoned apartments, to leave apartments, nor could they have been prevented from repossessing the mentioned apartments if they had been abandoned.²³⁸⁷

The legal situation changed at the beginning of 1998.²³⁸⁸ In order for one to repossess an apartment, pursuant to Article 3.a of the Law on the Cessation of the Application of the Law on Abandoned Apartments, it was stipulated that an applicant for repossession of an apartment must be in possession of BiH citizenship as of 30 April 1991, and that he/she must not have been a member of the JNA after the given date. On the contrary, such person would lose his/ her status as a refugee or displaced person, unless the applicant gained such a status outside the SFRY before 14 December 1995, whereby after acquiring such a status one could not be a JNA member and could not have other occupancy or similar rights outside BiH. The Human Rights Chamber held that the requirements described above, citizenship and non-affiliation with the JNA, were in contravention of the ECHR.²³⁸⁹

The legal situation changed again thereafter, under the pressure of the OHR in agreement with the Federation of BiH Government. On the one hand, conditions for the recognition of contracts on the purchase of JNA apartments were changed.²³⁹⁰ Only a person who had a valid contract on the purchase of an apartment and who had paid in full the price for the apartment could be recognised as an owner of the apartment.²³⁹¹ Nevertheless, recovery of JNA apartments was still connected to the conditions prescribed in Article 3.a of the Law on the Cessation of the Application of the Law on Abandoned Apartments. Only during 2004 were such conditions discarded.²³⁹² Under the regulations from 2004, conditions ruling out the possibility for repossession of a military apartment were as follows: possession of an occupancy or similar right in the territory of the former SFRY (paragraph 1); service in a foreign army after 14 December 1995 (paragraph 2);²³⁹³ or existence of a contract on the purchase of respective apartment from the “post-war” occupant (paragraph 3). The condition referred to in paragraph 3 has never been the subject of consideration in terms of its conformity with the standards referred to in Annex 4 or 6 to the Dayton Peace Agreement. Therefore, there is no case law related to this paragraph. On the other hand, the Human Rights Commission within the BiH Constitutional Court held that the condition referred to in paragraph 2 was brought in line with the ECHR.²³⁹⁴ Namely, the state has a legitimate right to defend and impose on citizens the obligation to be loyal to their state (this principle arises from the principle of the sovereignty of a state), which will be violated or threatened if a person serves in the army of a foreign state. In such a case, the state has the right not to restore the possession of an apartment to the applicant, and to pay adequate damages to the applicant. When it comes to paragraph 3, the Human Rights Commission within the BiH Constitutional Court considered that these conditions were contrary to the ECHR, as they were in contravention of the principle of proportionality of an interference with property rights.²³⁹⁵

Article 3.a of the Law on the Cessation of the Application of the Law on Abandoned Apartments was amended again in the summer of 2003. A former JNA member could repossess the apartment if he was not in a foreign army after 14 December 1995 (paragraph 1), or if he acquired refugee status outside the former SFRY before 14 December 1995. However, a condition whereby a person must not acquire another occupancy or similar right in the territory outside BiH was still applicable. The BiH Constitutional Court declared as constitutional the entire Article 3.a, in its form from 2003.²³⁹⁶

What can one conclude? A balanced solution – even if not always completely in conformity with the standards laid down in the ECHR²³⁹⁷ – must be sought, unfortunately, within the tense relations which are the result of the right to return, on the one hand, and the social sensitivity towards the members of the opponent military forces, on the other. That is a painstaking matter which requires, in addition to the intervention of the highest courts, a creative role and influence of the international community embodied, primarily, in the persona of the High Representative. By then, the courts would have to establish that in many cases of preventing one from acquiring the right of ownership over the so-called JNA apartments, or from repossessing them, the property rights and/ or the right to home were violated, solely or in connection with the prohibition of discrimination in enjoying the mentioned rights.