Court decisions and, previously, administrative acts, dismissing the appellant’s claim for the repossession of apartment on the grounds that he had not concluded an agreement on the use of apartment and could not therefore be considered an occupancy right holder, unjustifiably prevented the repossession of apartment to the appellant – a refugee from Bosnia and Herzegovina, who had been, up until 30 April 1991 (date set by property laws), on the basis of the ruling on the allocation of apartment, in factual possession of apartment. As a result, the appellant’s right to respect for home under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the right to peaceful enjoyment of property under Article 1 of Protocol No. 1 to the European Convention, guaranteed by Article II of the Constitution of Bosnia and Herzegovina, in particular Article II(5) of the Constitution (“Refugees and displaced persons”) were violated.
• Decision No. U 14/00 of 4 May 2001, published in the Official Gazette of Bosnia and Herzegovina, 33/01
Authorities may interfere with the right to respect for home if the following three conditions are fulfilled: first, interference must be in accordance with the national law, i.e. the law must be available and it must not be arbitrary, second, interference must have a legitimate goal, and third, interference must be proportionate to the goal sought to be achieved. If established that the interference with the exercise of the right was “in accordance with the law”, the next step is to establish whether it was justified. Establishment of such justification is done by way of a test comprised of two parts: a) establishing whether the interference has legitimate goal and b) whether appropriate balance has been struck between the interests of the applicants and the interests of the society (the so-called test of proportionality).
• Decision on Admissibility and Merits No. U 26/03 of 30 June 2004, paragraph 30, published in the Official Gazette of Bosnia and Herzegovina, 38/04; contentious proceedings for the eviction of an unlawful occupant of apartment
The interference of authority with the appellant’s right to home is in accordance with the law, in the event when the appellant was a lessee of a military apartment on the basis of a concluded agreement on lease. Namely, he was not able to exhaust the subject matter ownership-related authorizations from the mentioned agreement, that is, he did not have the occupancy right over the apartment, nor did he possess the ruling on the use of apartment, which constituted the minimum of ownership authorization related to the disputed apartment, on which the well-foundedness of the request for the repossession of the apartment was based.
• Decision on Admissibility and Merits No. AP 418/04 of 22 April 2005, paragraph 26, published in the Official Gazette of Bosnia and Herzegovina, 40/05; the repossession of apartment on the basis of lease agreement, JNA apartment; there is no violation of Article 8 of the European Convention and Article II(3)(f) of the Constitution of BiH
The interference with the right to home is in accordance with the law and is “a necessary measure in a democratic society” in the event when the agreement on the use of apartment ceased to be in effect ex lege, that is it was annulled by the application of the Law on the Cessation of the Application of the Law on Abandoned Apartments.
• Decision on Admissibility and Merits No. AP 455/04 of 12 April 2005, paragraph 26, published in the Official Gazette of Bosnia and Herzegovina, 22/06; the repossession of apartment; there is no violation of Article 8 of the European Convention and Article II(3)(f) of the Constitution of BiH
The omission of the public authorities to proceed in accordance with the appellant’s request for the repossession of apartment in the period, which represents “a reasonable time limit” under Article 6 of the European Convention, “brought about or at least enabled a situation” whereby the appellant was prevented from enjoying his home for a prolonged period of time, for over seven years, thereby violating their positive obligation under Article 8 of the European Convention.
• Decision on Admissibility and Merits No. AP 1070/05 of 9 February 2006, paragraph 68, published in the Official Gazette of Bosnia and Herzegovina, 45/06; proceedings related to the repossession of apartment to the pre-war occupancy right holder
It follows unambiguously from the case-file that the appellant had moved out of the disputed apartment on the basis of the ruling issued by the competent municipal body, which ordered that a building where the apartment was located be pulled down. It follows from this that the challenged decisions of the ordinary courts not granting the appellant’s request for establishment of her occupancy right over the respective apartment did not prevent the appellant from using her accommodation, i.e. home. Therefore, no interference with her enjoyment of the right to respect for home took place.
• Decision on the Merits No. AP 703/05 of 12 April 2006, paragraph 49, published in the Official Gazette of Bosnia and Herzegovina, 77/06
In the process of transfer of the occupancy right from a deceased occupancy right holder to a granddaughter whose “home” is the said apartment, the application of the provision of Article 2 of the Law on Amendments to the Law on Housing Relations, which narrowed the circle of possible members of family household through by eliminating grandchildren, after the entry into force of the Law on Striking out Articles in the Law on Amendments to the Law on Housing Relations whereby the mentioned Article was stricken out, constitutes arbitrary application of the law and does not constitute “interference” on the basis of the law. Therefore, this concerns the violation of the right to respect for home under Article II(3)(f) of the Constitution of Bosnia and Herzegovina and Article 8 of the European Convention.
• Decision on the Merits No. U 49/03 of 27 May 2006, paragraph 44, published in the Official Gazette of Bosnia and Herzegovina, 7/07; administrative proceedings for the transfer of occupancy right
When it comes to the issue of whether the disputed facility may be considered the appellant’s “home” within the meaning of Article 8 of the European Convention, the Constitutional Court finds that it was indisputably determined in the proceedings that the appellant had used the facility in question for a number of years, from which he had been evicted, as he alleged, on 19 November 2007. In this connection, the facility in question constitutes the appellant’s home. The next question to be considered is whether the challenged decisions amounted to the interference with the appellant’s right and whether the interference was justified, i.e. whether it had a legitimate aim. The Constitutional Court finds that the appellant is of the opinion that his right to home was violated by the fact that he had spent a major part of his life in that facility, that he renovated it and adapted it to his need, that it was his home regardless of its construction features and that the facility in question was confiscated from him, which was the reason why he ended up in the street. The Constitutional Court reiterates that the appellant requested the court to determine that he acquired the right of ownership over the facility in question, the compensation for the demolition of the facility in question and to secure for him an alternative apartment, which was refused by the ordinary courts. The Constitutional Court further reiterates that the appellant filed a submission wherein he alleged that he had been evicted from the facility in question on 19 November 2007, and wherein he neither alleged nor submitted decisions based on which he was evicted. Even if he had submitted it, the Constitutional Court could not assess whether they would be admissible at all. At any rate, the decisions in question interfered in no way with the appellant’s right to home.
• Decision on Admissibility and Merits No. AP 2094/09 of 28 September 2012, paragraph 53, published in the Official Gazette of Bosnia and Herzegovina, 102/12; auxiliary facility located next to the housing barracks on the socially-owned land
The Constitutional Court notes that the appellant’s right to home is neither denied nor restricted by the impugned decision, i.e. by the finding that the inheritance statement at issue had no legal effect on the plaintiff in the part necessary to satisfy his claim, including the appellant’s obligation to allow the settlement of that claim by selling 1/8 of the apartment in question. Namely, the appellant, as a co-owner of the apartment in question, still enjoys all the rights deriving from that status, that is, she is free to use it and to dispose of it, in proportion to her co-ownership, even after the possible sale of 1/8 of the apartment in question. Therefore, the impugned decision [establishing that the A.M.’s statement of inheritance, assigning his ¼ share of the inheritance to the appellant (mother), had no legal effect on the plaintiff in the part necessary to satisfy his claim against A.M., and that the appellant was required to allow the settlement of the mentioned claim by selling of 1/8 of the apartment in Banja Luka] did not interfere with the appellant’s right to a home.
• Decision on the merits No. AP 3796/18 of 17 December 2019, paragraph 53, published in the Official Gazette of Bosnia and Herzegovina, 1/20; refutation of the inheritance statement, a creditor whose claim falls due has the right to challenge the debtor’s legal action taken to his detriment, there is no violation of Article 8 of the European Convention and Article II(3)(f) of the Constitution of BiH or Article 1 of Protocol No. 1 to the European Convention and Articles II(3)(k) of the Constitution of BiH
