Guarantees of the institutions

In Case No. U 5/98-II, in relation to the right to property, the BiH Constitutional Court elaborates for the first time on the legal mechanism of institutional guarantees.⁴⁷¹ According to the Preamble, by protecting private ownership, one aspires to the common good and economic development, and to the advancement of the market economy.⁴⁷² In addition, the right to property is protected by Article II of the BiH Constitution, and, therefore, it does not constitute only the subjective right of defence of an individual but it also constitutes the institutional guarantee as a condition for the functional market economy.⁴⁷³ This positive obligation of Bosnia and Herzegovina and the Entities should be specified by adequate legal framework.⁴⁷⁴ According to the jurisprudence of the German Federal Constitutional Court (BVerfG), the institutional guarantee for property prohibits exemption of legal areas from the domain of private law which constitute an elementary part of each person’s activity in the property-related area protected by the Constitution, whereby effect of the right to property would be annulled or narrowed substantively.⁴⁷⁵