The legitimate aim and necessity in a democratic society

Either in cases relating to interference with the right under Article 8 of the ECHR or in cases relating to the failure to meet the positive obligations of protection, the public authority has the obligation to strike a fair balance between the interests of the individual and the general interest of the society, i.e., the State.¹⁵⁵⁹

Therefore, in a case relating to the allocation of the right to use the abandoned property, the Constitutional Court emphasised that the interference initially served a legitimate aim in accordance with the meaning of Article 8, paragraph 2 of the Convention. The relevant aim was the protection of the rights of others, i.e., the rights of persons who were forced to leave their homes because of the war. Indeed, the armed conflict in Bosnia and Herzegovina caused mass movements of the population and created a great number of housing problems. Many apartments and houses were abandoned or destroyed, or the inhabitants were forcefully evicted. Empty homes were immediately taken over by others. The authorities, at the time, of the Republic of Bosnia and Herzegovina enacted a law which temporarily solved the housing problems caused by the great number of refugees. However, if a person has not been able to realise his rights to repossess his property five years after the end of armed conflict, the “interference”, which initially could have been justified and in compliance with the principle of “necessity”, can no longer, five years after the end of the armed conflict, represent a necessary “interference in a democratic society” with the person’s right to return to his home.¹⁵⁶⁰ The competent authorities violated its discretionary right in weighing out the current occupant’s interest in staying in the apartment and that of the person claiming the repossession of the apartment, since the legally prescribed requirement of necessity to protect the vulnerable categories of population has not been met and the claim for repossession of the apartment was filed by a possible “returnee”, where the return of internally displaced persons and refuges is one of the primary constitutional objectives.¹⁵⁶¹ Moreover, it is irrelevant whether the court decision is relied upon on the applicable legal basis. Also, the legitimate aim does not exist either where the administrative authority attempts, with the aim to allocate the apartment to a person, to enforce the eviction of the person who occupied the apartment and to declare it abandoned although there is no legal basis for establishing that the apartment is abandoned.¹⁵⁶²

Given the shortage of alternative accommodation, which renders the process of property return more difficult, the eviction from an apartment is in accordance with Article 8 of the ECHR even if the occupant of the apartment is not evicted in order to make it possible for the former occupant of the apartment to repossess it but in order to declare the apartment alternative accommodation for a third person provided that there is the possibility of allocating an alternative accommodation to the current occupant and that he/ she can pursue a legal remedy in order to explain the reasons why he/she needs to have alternative accommodation or to continue with the occupation of the current apartment. Given the shortage of housing units, it is permitted only in exceptional cases, within the meaning of Article 8 of the ECHR, that the person to be evicted cannot be heard in the procedure before the competent authority, and that his/her appeal against the first-instance act did not have suspensive effect.¹⁵⁶³

As to the cases relating to the contracts on exchange of apartments, which were concluded during the armed conflict, the Human Rights Chamber admitted that it would be legitimate and necessary to provide a prompt and simple procedure for property return in order to achieve one of the central objectives of the Dayton Peace Agreement: providing the return of refugees and displaced.¹⁵⁶⁴ However, the Human Rights Chamber established that there was a violation of Article 8 of the ECHR if the competent authorities failed to take into consideration the civil procedure for establishing the lawful occupant/ owner of property or if they failed to decide requests for interim measures but, instead, they enforced the conclusion on eviction. Such a manner of conduct lacks the fair balance between the interests of the current and pre-war occupant of property (the returnees), which was struck in the law itself, and de facto deprives the current user of property of any possibility of legal protection in the enforcement procedure.¹⁵⁶⁵ Even where the law itself did provide for the possibility of suspending the procedure for property return, including the conclusion on eviction from the apartment/property (which was the case in the Federation of BiH for a long period of time), the administrative authorities were obliged, by directly applying the ECHR, to wait for a court decision on the validity of the contract on exchange of apartments.¹⁵⁶⁶ In order to protect the rights of other persons in a democratic society, the former occupant, i.e., the former possessor who received a final and binding decision of the CRPC, is not necessarily in a better position in the enforcement procedure than one (within the procedural possibilities provided for by the Law on the Cessation of the Application of the Law on Abandoned Property) who initiated the alternative national administrative procedure. In particular, in the first case, the suspension of the procedure for repossession of exchanged property is at the discretion of the first-instance court (which usually fails to take such decision) which deals with the preliminary issue relating to the procedure for repossession – the validity of the contract on exchange. In the second case, the suspension of the procedure for repossession of property is automatic.¹⁵⁶⁷ Therefore, the eviction of the current occupant of property before the final decision on the validity of contract on exchange may be “necessary in a democratic society for protection of other persons” even if the issue relates to the users registered as owners in land books. From the point of view of classic civil law, that this result is a little peculiar follows from the constellation which gives priority to the repossession of property of internally displaced persons and refugees over the procedural rights of the current possessors and owners. The consistency of giving priority to the interests of a certain group of citizens with rights under Article 6 of the ECHR partially relies on the fact that the majority of proceedings relating to the property repossession, together with their legal substantive basis, is provided for by Annex 7 of the Dayton Peace Agreement, in which case the BiH Constitutional Court and Human Rights Chamber are excluded from the control of procedure and decisions and legal substantive solutions as long as the CRPC exists.¹⁵⁶⁸

Relying on the case-law of the European Court of Human Rights relating to the protection of lawful demonstrations from violence by counter demonstrators, the Human Rights Chamber did not find any justified reason for the fact that the police forces did not give assistance to the judicial officers for more than two years to enforce the conclusion on eviction of certain persons, since a group of people prevented and did not allow the eviction. Although a delay in taking action for reasons of public order protection is justified in some circumstances, the authorities have the obligation and responsibility to carry out the enforcement regardless of the attempts of people to unlawfully obstruct the enforcement. The fact that the competent authorities were passive in prosecuting the persons who unlawfully prevented the enforcement of a final and enforceable legal act can be mentioned in support of the conclusion on violation of the State’s positive obligations.¹⁵⁶⁹

According to the BiH Constitutional Court, the allocation of occupancy rights to either of divorced spouses in accordance with Article 20 of the Law on Housing Relations – Revised Text (Official Gazette of the SRBiH, Nos. 14/84, 12/87 and 36/89 and OG of RS, Nos. 19/93 and 22/93) and their physical separation are pursuant to the public and legitimate interest, which is necessary for the protection of health and morals, and for the protection of the rights and freedoms of others.¹⁵⁷⁰ A joint living after divorce and under such circumstances could provoke further harm and damages. The State is not interested in such living arrangements and, therefore, it does not support it. Moreover, such an unbearable situation in a house or apartment would have undesirable consequences on the children. Finally, every person has a right to live in a peaceful, safe and pleasant atmosphere respecting, as far as the circumstance of every particular case can allow, his/her dignity.¹⁵⁷¹ The Constitutional Court accepts that in the situation where an apartment is not able to be divided into two smaller habitable units whereby the owner of the apartment is also unable to offer two smaller apartments instead of the former spouses’ single apartment, then the eviction from the apartment combined with providing this person with a temporary accommodation represents the most adequate measure.¹⁵⁷²

Just like in the case of the allocation of the right to occupy civilian apartments, the temporary allocation of the apartments owned by the former Yugoslav People’s Army (JNA) to the soldiers and families of war veterans was necessary in the post-war period in order to resolve the problem of the acute shortage of housing resources. After the armed conflict ended and after the cessation of the state of war had been declared, such activities were not “necessary” any more in a democratic society. Therefore, the measures preventing the former members of the JNA from repossessing their apartments were not “adequate” relating to the aim sought to be achieved. The officers of the JNA can also be considered as refugees and displaced persons. Therefore, one of the main objectives of the Constitution – the return of refugees and displaced persons¹⁵⁷³ – applies to this group of people. However, if the affected party (an officer of the JNA) resolved his housing problem meanwhile and outside Bosnia and Herzegovina by acquiring the occupancy right over another socially owned apartment, the repossession of the apartment is no longer justified, since the State has a public interest in resolving the shortage of housing resources.¹⁵⁷⁴ Furthermore, all officers cannot be considered refugees and displaced persons; for example, those who have remained in the service of the JNA after 19 May 1995 (in case of apartments with occupancy right) and after 14 December 1995 (in case of privately owned property). In particular, these persons have remained active in the service of the armed forces of foreign states after the date prescribed by the law. “Deprivation of their possessions” in terms of the impossibility to repossess the property (without compensation in the case of a socially owned apartment with occupancy right, i.e., with certain compensation in case of private property, is proportional to the aim sought to be achieved, which is the protection of the principle of loyalty expressed by the members of military forces to their own country.¹⁵⁷⁵ However, if an affected party did not remain active in the service of military forces of foreign countries after the date prescribed by the law (14 December 1995), such a person cannot be considered a disloyal citizen, the result of which is the fact that the public interest in the return of that person is given preference over the shortage of housing resources problem of its own soldiers.¹⁵⁷⁶ It is also allowed, within the meaning of the principle of proportionality, to connect the repossession of property – the JNA apartments – to BiH citizenship or to make it conditional upon BIH citizenship.¹⁵⁷⁷

From the point of view of constitutional conformity, the public authority must in such circumstances carefully weigh out the confronted particular interests of certain groups, which also relates to the public interest of the State, taking particular account of the standards with regards to the constitutional rights and freedoms and constitutional principles. If the State, either the legislature or administrative authorities, observes its discretionary right, i.e., its margin of appreciation, from the constitutional point of view, then there should not be objections to the law or decision taken by the administrative authority.