Excursus: The occupancy right in Bosnia and Herzegovina

The case-law of the BiH Constitutional Court, Human Rights Chamber and the Human Rights Commission within the BiH Constitutional Court relating to the “occupancy right” deals with three large legal fields. The first field concerns the application of the Law on Housing Relations.¹⁵⁷⁸ Despite the fact that this Law has been in force for a long time, its interpretation and application in practice cause a lot of difficulties. They are mostly the consequence of the fact that a lot of occupants of socially-owned property and the members of their households are refugees or displaced persons, i.e., they abandoned their property. Taking this into account, it is important to draw a distinction between this Law and the so-called property laws adopted in accordance with Annex 7 to the Dayton Peace Agreement. The remaining two fields concern the application of the aforementioned property laws and repossession of property of internally displaced persons and refugees.

The problems arising in the application of these rights relate to the particularities of the property laws according to Annex 7 of the Dayton Peace Agreement comparing to the Law on Housing Relations. The property laws apply exclusively in case of return of internally displaced persons and refugees, i.e., the claims for repossession of property within the meaning of Article 8 of the ECHR. Furthermore, the laws provide for particular institutional frameworks and procedures.¹⁵⁷⁹ Thus, it may happen that a claim is not justified according to the Law on Housing Relations but it is justified according to the property laws adopted in accordance with Annex 7 of the Dayton Peace Agreement, since the substantive legal solutions are different.

The following review and analysis of the Law on Housing Relations concerns solely Article 8 of the ECHR. A further analysis of this Law, particularly the impact of the war on the occupancy right and property relations, development of the mechanism of the occupancy right and other significant issues are presented in the part of this Commentary relating to the property right.¹⁵⁸⁰