Right to return as a special individual right

By safeguarding the special right to return, which was supplemented by obligations to protect the Signatory Parties to Annex 7 of Dayton Peace Agreement, Article II.5 of the BiH Constitution – in conjunction with Annex 7 to the Dayton Peace Agreement – exceeds the usual international-legal standards which, in principle, guarantee or regulate only the internal freedom of movement of citizens, as well as the right of every person to return to his/ her home country after abandoning it, meaning that these standards guarantee the right of return to war prisoners or protected persons.²⁴⁶⁶ The Constitutional Court has in several instances placed an emphasis on the special significance of return as a basic goal within the Dayton context and within the fight against ethnic cleansing and the neutralisation of its effects. Article II.5 of the BiH Constitution, in conjunction with Article XII.3 of Annex 7 to the Dayton Peace Agreement,²⁴⁶⁷ has clarified that “in the context of the General Framework Agreement, the goal of elimination of [the] effects and traces of ethnic cleansing is considered to be so important that in some cases it [effects] the validity of legal transactions which would otherwise satisfy the requirements of civil law”.²⁴⁶⁸ Article II.5 of the BiH Constitution reflects a special situation in Bosnia and Herzegovina which occurred due to the events of the war and reflects the decisiveness of the Framer of the Constitution to re-establish “a multiethnic and multicultural society” in Bosnia and Herzegovina.²⁴⁶⁹ In the beginning, the Constitutional Court of BiH did not recognise any additional elements in the right of return under Article II.5 of the BiH Constitution that were not already contained within the regular standards of human rights and freedoms (such as the right to property, freedom of movement, prohibition of torture and inhuman treatment, the right to a home, etc).²⁴⁷⁰ However, in its subsequent decisions the Constitutional Court placed an emphasis on the constitutional status of the right to return and acknowledged the constitutional obligation of the State to “re-establish [the] status quo ante”.²⁴⁷¹ In addition to the special right to the repossession of property or ownership over real properties, Article II.5 of the BiH Constitution stipulates for refugees and displaced persons “a general right of return to [their] homes of origin”.²⁴⁷² The principle of compliance with the right to return will be jeopardized if a returnee is not given the possibility to re-establish his/her pre-war employment status in the place of return.²⁴⁷³