The right to home under Article 8 of the European Convention offers protection from unjustified interference with the existing home, but it does not give the right to larger or better home.
• Decision No. U 22/01 of 1 September 2001, paragraph 24, published in the Official Gazette of Bosnia and Herzegovina, 33/01; the right to adequate accommodation; there is no violation of Article 8 of the European Convention and Article II/3.f) of the Constitution of BiH
In order to establish whether the present case concerns a violation of Article 8 of the European Convention, first it is necessary to establish whether the disputed apartment was the appellant’s “home” within the meaning of Article 8 paragraph 1 of the European Convention and whether the measures the appellant refers to relate to “the interference” of public authorities with the respect for such “home”. Second, for “the interference” to be justified, it must be “in accordance with the law”. This condition of lawfulness, in accordance with the meaning of the term European Convention, comprises several elements: (a) the interference must be based on national or international law; (b) the law concerned must be appropriately available so that an individual is appropriately informed of the circumstances of the law that can be applied to the case at issue, and (c) the law must be phrased with appropriate accuracy and clarity so as to allow an individual to adjust to it one’s actions accordingly (see the European Court of Human Rights, Sunday Times v. The United Kingdom, judgment of 26 April 1979, series A, No. 30, paragraph 49
• Decision on Admissibility and Merits No. AP 380/04 of 26 April 2005, paragraph 20, published in the Official Gazette of Bosnia and Herzegovina, 40/05; the transfer of occupancy right to a child; there is no violation of Article 8 of the European Convention and Article II(3)(f) of the Constitution of BiH;
• Decision on Admissibility and Merits No. AP 1812/05 of 8 July 2006, paragraph 32, published in the Official Gazette of Bosnia and Herzegovina, 87/06; apartments occupied on the basis of occupancy right
The Constitutional Court concludes that there is a violation of the appellant’s right to respect for home, privacy and family life, since the warrant of the Court of BiH, based on which the search was conducted, lacked a minimum of specification in terms of the existence of reasons suggesting that there exists a likelihood that someone (perpetrator or accomplice) or something (the traces of a criminal offence or objects relevant to the proceedings) would be found with the appellant, which clearly stems from the contents of the provisions of the Criminal Procedure Code and represents a guarantee of justification for issuing a search warrant.
• Decision on Admissibility and Merits No. AP 2120/09 of 26 May 2012, paragraph 45, published in the Official Gazette of Bosnia and Herzegovina, 59/12; apartment search; there is a violation of Article 8 of the European Convention and Article II(3)
• of the Constitution of BiH
The Constitutional Court concludes that there is no violation of the appellant’s right to private life and correspondence under Article II(3)(f) of the Constitution of Bosnia and Herzegovina and Article 8 of the European Convention, when the appellant, pursuant to Article 119(3) of the Criminal Procedure Code of BIH, was informed of the completion of special investigative actions immediately after the court discontinued such actions, i.e. when the Prosecutor’s Office of BiH proposed to the court to order detention against her; and when the Court of BiH made it possible to the public to see the record of the entire hearing for ordering detention, because it held that the interest of the public to be informed about this case prevailed over the appellant’s right to the protection of right under Article 8 of the European Convention; because both types of interference were “in in accordance with the law” and “necessary in a democratic society” within the meaning of Article 8(2) of the European Convention.
• Decision on Admissibility and Merits No. AP 1758/15 of 30 June 2015, paragraph 123, published in the Official Gazette of Bosnia and Herzegovina, 58/15; criminal proceedings; there is no violation of Article 8 of the European Convention and Article II(3)(f) of the Constitution of BiH
There is no violation of the appellant’s right to respect for private and family life, home and correspondence under Article II(3)(f) of the Constitution of Bosnia and Herzegovina and Article 8 of the European Convention in situations where the members of the appellant’s immediate family, legal spouse and children born in and out of marriage, and where the lawyer is allowed to visit him (in prison), and where the prohibition on visits by the mothers of his children with whom the appellant is married under Islamic law does not raise the issue of violations of the right to family life as the Family Law does not prescribe or acknowledge such family ties.
• Decision on Admissibility and Merits No. AP 377/16 of 20 April 2016, paragraph 43, published in the Official Gazette of Bosnia and Herzegovina, 36/16; criminal proceedings; there is no violation of Article 8 of the European Convention and II(3)(f) of the Constitution of BiH
With regard to the appellants’ allegations of violation of the “right to a healthy environment and work environment” and harmful consequences of the disputed emissions, the Constitutional Court primarily points out that, although there is no explicit right referred to in the European Convention to a clean and quiet environment, a situation where an individual is directly and seriously affected by noise or other forms of pollution may arise under Article 8 of the Convention (see, Hatton et al. v. the United Kingdom, judgment of 2 October 2001, Application no. 36022/97, paragraph 96; López Ostra v. Spain, judgment of 9 December 1994, Series A No. 303-C). The Constitutional Court also states that the essential purpose of Article 8 of the European Convention is to protect individuals from arbitrary interference with their rights guaranteed by this Article (see, the European Court of Human Rights, Kroon v. The Netherlands, judgment of 27 October 1994, Series A, 297-C and the Constitutional Court, Decision on Admissibility and Merits No. AP 1100/04 of 17 November 2005, paragraph 24, published in the Official Gazette of BiH, 22/06). “Home” is, according to the case-law of the European Court, a place, a physically defined space, where private and family life develops. An individual has the right to respect for his/her home, which means, as the Court has pointed out, not only the right to a specific physical space, but also to the peaceful enjoyment of that space. Therefore, violations of the right to respect for home are not limited to the physical prevention in the peaceful enjoyment of the home, such as for example, unauthorized entry into a person’s home, but also include those that are not specific or physical, such as noise, emissions, odours or other forms of interference, which prevent a person from enjoying the comfort of their home (see Hatton, cited above). Therefore, bearing in mind the notion of “home” and the fact that the appellants are legal persons, the Constitutional Court considers that the facts presented in this case cannot in any way justify the allegation that there has been a violation of the right to home referred to in Article II(3)(f) of the Constitution Bosnia and Herzegovina and Article 8 of the European Convention (see, European Court, Decision on Admissibility, Greenpeace EV and Others v. Germany, Application No. 18215/06).
• Decision on Admissibility and Merits No. AP 1512/17 of 10 April 2019, paragraph 32; harmful emissions, concept of “home” and legal person, right to a healthy life and work environment; there is no violation of Article 8 of the European Convention and II(3)(f) of the Constitution of BiH
With regard to the appellants’ allegations that the challenged decisions violated their right to a home, which is guaranteed by Article II(3)(f) of the Constitution of Bosnia and Herzegovina and Article 8 of the European Convention, the Constitutional Court emphasizes that the primary objective of Article 8 of the European Convention is to protect individuals from arbitrary interference of authorities with their rights guaranteed by Article 8 of the European Convention (see, the European Court, Kron v. the Netherlands, judgment of 27 October 1994, Series A, 297-C, para 31). In this regard, given the undisputed circumstances regarding the conduct of the police officers - that before entering the appellant’s home where the door was opened and where the light came from, they knocked on the window and introduced themselves as police, and that they entered their home after the first appellant had told them to enter, that they did not use any force at entry and that the event in dispute lasted briefly and that they eventually apologized for mistake, the Constitutional Court considered that the presented facts in no way could justify the claim that there is a violation of the said right protected by the Constitution of Bosnia and Herzegovina and the European Convention. Therefore, the Constitutional Court finds that the appellants’ allegations of violation of the right to home under Article II(3)(f) of the Constitution of Bosnia and Herzegovina and Article 8 of the European Convention are unfounded.
• Decision on Admissibility and Merits No. AP 1100/17 of 10 April 2019, paragraph 34; search of the house by mistake; there is no violation of Article 8 of the European Convention and II(3)(f) of the Constitution of BiH
