The lawfulness of interference

Any interference with the right to home must be based on the law in order to be justified. The requirement “in accordance with the law” primarily refers to the national legal system¹⁵⁴⁶ but it also includes the examination of the standards under ECHR.¹⁵⁴⁷ Therefore, the necessity to regulate the interference with the right to home imposes by law certain qualitative requirements on the legal basis, i.e., it must be harmonised with the principle of the rule of law, which is explicitly mentioned in the Preamble of the ECHR. The national law must secure to the individual the protection against the arbitrary interference of the public authority with his/her rights under Article 8 of the ECHR.¹⁵⁴⁸

Lawful interference with the right to home is in accordance with the meaning of the terms of the ECHR if the following requirements are met: (a) the interference has to be in accordance with the domestic or international law; (b) the relevant law must be accessible so that the individual can be easily informed about its contents; and (c) the law must be formulated with reasonable precision and clarity so as to allow the individual to adapt his actions according to the law.¹⁵⁴⁹

The accessibility of the legal act is assessed, inter alia, according to the residence of the persons who might be affected by the legal act.

Therefore, publication of the 1995 Decision on the Cessation of War of the Presidency of the RBiH only on the bulletin board of the building of the Presidency in Sarajevo could not suffice to render the act in question accessible. The time-limits in question (a seven-day time-limit applying to persons living within the borders of the country and a fifteen-day time-limit applying to persons living abroad), which run from the date when the decision on the cessation of the state of war was published and within which the occupancy right holders could request repossession of their apartments, were not “accessible”.¹⁵⁵⁰ It is not acceptable that a law should deprive persons permanently of their rights if they do not fulfil a wholly unreasonable condition, such as the time-limit referred to, which could not possibly be fulfilled by the vast majority of those affected. Therefore, this Law does not meet the requirements of the rule of law in a democratic society.¹⁵⁵¹

If the law provides for abstract conditions for enforcement of a legal act, and if it does not secure to the individual clear and precise instruments to act upon, the individual cannot comply with the law so that such a legal act does not meet the qualitative requirements.¹⁵⁵² The eviction of a person without giving him/ her at least one opportunity to see the conclusion on the eviction in order to be informed on the legal basis for adopting the conclusion is also unlawful.¹⁵⁵³

The cases where the competent authorities take measures by referring to the law which in legally formal terms does not exist or fail to decide the claims or legal remedies, or fail to take a decision within the time limits stipulated by the law amount to unlawfulness.¹⁵⁵⁴ Moreover, failing to act upon the decision on interim measures, whereby the Human Rights Chamber has forbidden the eviction even if the case relates to the unlawful occupant, is also unlawful; otherwise, the eviction, without decision on interim measure, would be lawful.¹⁵⁵⁵ Therefore, compliance with the decision of the Human Rights Chamber on interim measures has priority over the challenged act on eviction.

If there is a legal basis in accordance with the BiH Constitution, then it must be observed. Therefore, failure to comply with the relevant provisions while searching an apartment and confiscating private belongings against the affected party’s will are not in accordance with this constitutional right, since the requirements of “lawfulness” relating to the interference with this constitutional right have not been met.¹⁵⁵⁶

The problem that often arises in practice is the temporal applicability of the legal basis for taking a decision because the laws were previously amended, often at various administrative and territorial levels during the period of armed conflict and thereafter. Taking into account the length of certain administrative and judicial proceedings, the cases where the legal basis for making decisions had changed several times during the proceedings were not rare. The same applies to the appellate proceedings. In such cases, the competent authority – either administrative or judicial – must apply the legal basis which was applicable at the moment of taking the first-instance decision or appellate decision, not the one which was applicable at the moment of instituting the proceedings or the occurring fact. There is no need to follow this conclusion if the legislature regulates explicitly and through transitional provisions the application of former law provisions to the pending proceedings. Another exception is the case where the competent authority has the task to decide which regulation was legally applicable at a moment in the past,¹⁵⁵⁷and not to take a decision in accordance with the existing legal solutions.

The explained principles do not apply to the administrative judicial proceedings and disputes. In particular, the administrative courts have the obligation to examine whether the administrative authorities correctly applied the law at the moment of taking a decision. The same applies to the constitutional judiciary.¹⁵⁵⁸