The scope of protection

Article 8, paragraph 1 of the ECHR provides that everyone has the right to respect for his/her home. The notion of home comprises both rented property, a home owned as private property,¹⁵⁰⁴ and the so-called property for a specific purpose.¹⁵⁰⁵ Both the Constitutional Court and Human Rights Chamber broadly interpreted the term “home” so that the protection provided for by Article 8 of the ECHR covers not only the existing formal occupancy right but also the de facto occupancy right.¹⁵⁰⁶ In the case where the apartment is divided into two parts, each co-tenant has the right to respect for his home in his part of the apartment.¹⁵⁰⁷ The scope of protection of Article 8 of the ECHR covers business premises too if they are used to earn the family living.¹⁵⁰⁸ Therefore, a lawyer’s office may be covered by the protection of Article 8, paragraph 1 of the ECHR.¹⁵⁰⁹

Despite the broad definition of this right (“the right to home”, not the “right to protect his/her home”), Article II.3(f) of the BiH Constitution does not provide wider protection than Article 8 of the ECHR, since Article II.3 of the BiH Constitution solely provides for the list of rights protected by that Article.¹⁵¹⁰

What is decisive for the character of “home” within the meaning of Article 8 of the ECHR is that the person ab initio intends to use certain premises so as to establish his/her “home”. The use does not necessarily have to last for a certain period of time but it must be on a regular basis.¹⁵¹¹ This applies not only to the occupancy right holder but also to the members of his/her household if they want to refer to the protection of the right to home.¹⁵¹² The existence of a legal norm in order to use and be in possession of a “home” is not necessary but this fact must be relevant when examining whether the interference with the right to home is justified.¹⁵¹³

Such a view corresponds to the practice of the bodies of the ECHR. In fact, they adopted the view that first of all Article 8 of the ECHR imposes an obligation on the State to secure to every person the protection of the right to life in his/her home, and that the protection of property and possession of the premises in which someone’s home is placed is of secondary importance.¹⁵¹⁴ Therefore, this constitutional right primarily protects the factual relationship between a person and premises, and that relationship is to be established in each individual case.¹⁵¹⁵

At the beginning, the BiH Constitutional Court took a different view. In particular, in its previous decisions the BiH Constitutional Court was of the opinion that protection under Article 8 of the ECHR could not be guaranteed if the case related to an unlawful use of “home”.¹⁵¹⁶ This view was rectified in Case No. U 26/03, wherein the Court concluded that the unlawful use of certain premises which took place subsequently did not make obstacles to the application of Article 8.¹⁵¹⁷ After that case, the BiH Constitutional Court fully joined the case- law of the Human Rights Chamber and the Human Rights Commission within the BiH Constitutional Court which held that the unlawful use of home is not a requirement for protection under Article 8 of the ECHR.¹⁵¹⁸ Moreover, an unlawful occupant of a socially owned apartment, who abandoned it due to the war conditions, has the right to repossess that property according to the case-law of the BiH Constitutional Court.¹⁵¹⁹ Divorce, voluntary or involuntary abandonment of an apartment do not lead to the loss of the “home” character within the meaning of Article 8.¹⁵²⁰ This interpretation – in the context of expulsions during the armed conflict in Bosnia and Herzegovina – corresponds to the intent which the Framer of the Constitution wanted to achieve by applying Article II.5 of the BiH Constitution and the whole Annex 7 of the Dayton Peace Agreement, which guarantees the right to return of refugees and displaced persons.¹⁵²¹ This is the reason why returnees retained sufficient ties with the property which they wanted to repossess in order for that property to be considered their “home”.¹⁵²² However, if the injured party abandoned the property voluntarily, the only thing which that party has to do in order to be covered by the protection of the right to home is not to allege that it is the place of his/her origin, or to allege that his/her ancestors lived there, or that they were interred there, or that he/she has a close relationship with the property. Moreover, even the mere intention of a person to live in the future in a certain place does not make a property “home” within the meaning of Article 8 of the ECHR.¹⁵²³ If an occupancy right holder gives the apartment on lease but he/she keeps the premises for temporary use, he/she will not necessarily lose his/her relationship with that apartment as his/her “home” under Article 8 of the ECHR.¹⁵²⁴

Article 8 of the ECHR imposes positive obligations on the State to protect the individual against the unlawful interference of third persons with the safeguarded sphere of his/her right to “home”.¹⁵²⁵ Moreover, it is necessary to strike a fair balance between the general interest, on the one hand, and the interests of the individual, on the other hand. In weighing up the mentioned interests, the aims mentioned in Article 8, paragraph 2 also have certain relevance.¹⁵²⁶ This element of the constitutional right to home requires effective mechanisms for implementation of the laws which entitle the individual to repossess his/her apartment within a time limit;¹⁵²⁷ moreover, adequate instruments must be available in order to make it possible for the individual to defend himself/herself against unlawful interference with his/her right to home by third persons. This primarily includes the possibility of obtaining an enforceable decision against the person that interferes with the right to “home”¹⁵²⁸ and enforcing such a decision in compliance with the legal procedure.¹⁵²⁹ The public authorities’ failure to protect the individual and his/her right to home against the interference by third persons violates Article 8 of the ECHR in the same manner in which the State takes measures whereby it unlawfully or unjustifiably interferes with this right.¹⁵³⁰

It is important to take into account the aim of protection of public order and security. In certain circumstances, that aim may lead to a situation in which the protection of the exercise of the right to home is postponed for a certain period of time due to, for example, the impossibility of removing resistance by the unlawful occupant of the property without jeopardizing public order and security. However, the State has the obligation to resolve such situations and, just like in the case of the positive obligation relating to the protection of lawful demonstrations from violence by counter demonstrators, to take adequate, reasonable and effective steps to remove obstacles to the exercise of the right to home.¹⁵³¹

Neither Article 8 of the ECHR nor Article II.3(f) of the BiH Constitution, nor Article 17 of the International Covenant on Civil and Political Rights entitle the individual to request that a “home” be allocated to him/her or to obtain a home with certain features (e.g., the size of the apartment). On the other hand, the individual is entitled to request the State to protect him/her against unjustified or unlawful interference with the existing right to home.¹⁵³² However, the right to request the allocation of an adequate apartment could be derived from Article 11 of the International Covenant on Economic, Social and Cultural Rights, constituting a part of substantive constitutional law (Annex 1 to the BiH Constitution). In the case in question, the BiH Constitutional Court could not establish the violation of this right, since the positive obligations arising from this Covenant are generally ill-defined, particularly those referred to in Article 11, which are unspecified.¹⁵³³