The interference with the appellant’s home, reflected in the loss of the specific appellant’s right due to the missed deadline (the right to request the eviction of the second defendant from the apartment at issue), as well as the right of the second defendant to be protected from eviction on the grounds of years-long unlawful use of the disputed apartment, as no request for her eviction had been filed within the deadline prescribed by law, is proportionate to the legitimate goal sought to be achieved, that being the introduction of legal discipline into mutual relations between physical and legal persons, as well as legalization of years-long factual relation, which, after the lapse of a certain period of time, ought to become a legal relation.
• Decision on the Merits No. AP 1049/05 of 14 March 2003, paragraphs 45 and 46, published in the Official Gazette of Bosnia and Herzegovina, 59/06; missing the deadline for requesting the eviction of unlawful user
The Constitutional Court holds that a differing interpretation and application of the amended Article 6 paragraph 2 of the Law on Housing Relations would be incorrect and would not lead to a legitimate goal and would result in putting the appellant, as a member of a family household, in an unequal position with regards to exercising the right to apartment.
• Decision on Admissibility and Merits No. U 160/03 of 23 July 2004, paragraph 30, published in the Official Gazette of Bosnia and Herzegovina, 43/04; the transfer of occupancy right to grandchildren in the Republika Srpska; a violation of Article 8 of the European Convention and Article II(3)(f) of the Constitution of BiH established
The interest of the owner of apartment to use one’s apartment cannot have priority over the interest of a refugee who returned to one’s home to continue using the disputed apartment as one’s own and to restitute the condition as it had been when the appellant had to leave her home due to the war circumstances.
• Decision on Admissibility and Merits No. AP 21/03 of 22 September 2004, paragraph 40, published in the Official Gazette of Bosnia and Herzegovina, 54/04
The interest of the defendant to dispose of the disputed apartment as an official apartment for resolving housing needs of its employees cannot have priority over the appellant’s interest to exercise her rights on the apartment she had used with her family for eight years (on the basis of the ruling on the allocation of apartment) prior to the onset of war circumstances and to which she intends to return and to live in it with her family on a permanent basis.
• Decision on the Merits No. AP 663/04 of 13 October 2005, paragraph 30, published in the Official Gazette of Bosnia and Herzegovina, 86/05; exercising the right to apartment; a violation of Article 8 of the European Convention and Article II(3)(f) of the Constitution of BiH established
In the event when the appellant failed to file a timely request for the repossession of apartment over which he had had the occupancy right, and has been in possession of the disputed apartment for almost three years along with his ill wife, whereby all of their movables were in the apartment and the disputed apartment being restored by them, the appellant showed unambiguous wish and intention to continue living with his family in the disputed apartment. Therefore, the interference with the appellant’s right to respect for his home was not proportionate to the legitimate goal.
• Decision on the Merits No. AP 964/04 of 3 December 2005, paragraph 31, published in the Official Gazette of Bosnia and Herzegovina, 20/06
In the event when the ordinary courts dismiss the request of the appellant for his occupancy right to be constituted on the apartment he has used on the basis of the agreement on life-long support with the deceased occupancy right holder, such interference with the appellant’s home is based on the law and it is in compliance with the principle of proportionality, i.e. the requirement for a fair balance between the general interest of the community and respect for the right of an individual.
• Decision on the Merits No. AP 587/05 of 12 April 2006, paragraph 47, published in the Official Gazette of Bosnia and Herzegovina, 77/06; the challenged decisions are declaratory decisions which did not order the appellant to move out of the apartment at issue, and accordingly there was no interference with her home
A decision dismissing the appellant’s request for asylum and ordering him to leave the territory of Bosnia and Herzegovina for a period of 4 years is not proportionate to the goal sought to be achieved, namely the protection of immigration policy and economic welfare of the country and is necessary in a democratic society.
• Decision on Admissibility and Merits No. AP 1788/05 of 20 September 2006, paragraph 63, published in the Official Gazette of Bosnia and Herzegovina, 9/07; the expulsion of an alien and the right to family life, there is no violation of Article 8 of the European Convention and Article II(3)(f) of the Constitution of BiH
There is a reasonable relation between the interference and the legitimate goal in cases where the persons participating in the armies of foreign states are not allowed to repossess apartments (see Decision of the Commission for Human Rights no. CH/00/5152 of 6 July 2005), i.e. a view that persons who failed to show their loyalty for their country cannot enjoy equal protection as those who did (see Decision of the Commission for Human Rights no. CH/98/874 of 8 February 2005).
• Decision on Admissibility and Merits No. AP 2044/05 of 20 September 2006, paragraph 29, published in the Official Gazette of Bosnia and Herzegovina, 34/07; JNA apartment; there is no violation of Article 8 of the European Convention and Article II(3)(f) of the Constitution of BiH;
• Decision on Admissibility and Merits No. AP 1512/06 of 3 April 2008, paragraph 40, published in the Official Gazette of Bosnia and Herzegovina, 41/08; JNA apartment; there is no violation of Article 8 of the European Convention and Article II(3)(f) of the Constitution of BiH
The interest in canceling co-occupancy relations in a new ownership structure over the entire housing fund and the interest of the plaintiff – counter defendant to expand his occupancy to the disputed apartment and thereby use the 117 m² apartment are not proportionate to the measure according to which the appellant must leave the disputed apartment regarding which she had concluded a bona fide agreement on the use, which was retroactively annulled and in which she has lived with her family since 1989.
• Decision on Admissibility and Merits No. AP 1498/05 of 12 September 2006, paragraph 41, published in the Official Gazette of Bosnia and Herzegovina, 7/07; co-occupancy; a violation of Article 8 of the European Convention and Article II(3)(f) of the Constitution of BiH established
By enacting the Law on the Sale of Apartments with Occupancy Right (Official Gazette of the Federation of Bosnia and Herzegovina, 27/97, 11/98, 22/99, 27/99, 7/00, 25/01, 61/01, 15/02 and 54/04) the conditions and terms were laid down for selling apartments with occupancy right and their transformation from social into private ownership, owing to which the issues related to the use of housing premises lose their public and legal character and become primarily the issues of private and legal character. Therefore, the privatization of apartments results in the loss of a legitimate goal, namely in the failure to establish co-occupancy relations and settlement of the existing ones for the purpose of more rational use of the housing premises, that existed at the time of the enactment of the law. The Constitutional Court, therefore, concludes that the mentioned measures do not have the legitimate goal and cannot be considered necessary in a democratic society for any purpose referred to in Article 8 paragraph 2 of the European Convention.
• Decision on Admissibility and Merits No. AP 1498/05 of 12 September 2006, paragraph 73, published in the Official Gazette of Bosnia and Herzegovina, 7/07; co-occupancy; a violation of Article 8 of the European Convention and Article II(3)(f) of the Constitution of BiH established
In the present case where the appellant’s communication with the outside world was restricted solely to contacts with his defense attorney, whereby this restriction applied during a limited time limit and in connection with the purpose and reasons for which the detention was imposed as prescribed by law, there was no violation of the reasonable relationship of proportionality between the protection of the legitimate goal that is sought to be achieved, on the one hand, and the protection of the appellant’s right to private and family life, on the other hand.
• Decision on Admissibility and Merits No. AP 3263/08 of 3 July 2009, paragraph 37, published in the Official Gazette of Bosnia and Herzegovina, 82/09; the ban on visits and telephone contacts with other persons except with the defense attorney during the detention; there is no violation of Article 8 of the European Convention and Article II(3)(f) of the Constitution of BiH
The Constitutional Court concludes that there is a violation of the right to home under Article II(3)(f) of the Constitution of Bosnia and Herzegovina and Article 8 of the European Convention, because the ordinary courts, in adopting the challenged decisions, failed to carry out an appropriate analysis as required by the standards of the European Court established through the case-law of that court regarding the striking of a fair balance between the right referred to in Article 8 of the European Convention and Article 10 of the European Convention.
• Decision on Admissibility and Merits No. AP 2043/12 of 22 December 2015, paragraph 40, published in the Official Gazette of Bosnia and Herzegovina, 10/16; the compensation for damage for the injury to reputation, slander; a violation of Article 8 of the European Convention and Article II(3)(f) of the Constitution of BiH
