Legal certainty

As far as the principle of legal state is concerned, the point of issue is not related to the terms only, such as, for instance, the term “justice”, which is a pretty shapeless term from the point of view of judicial practice, but the issue is about concrete principles required for the functioning of public authority. For instance, the term legal state also implies that the state will guarantee legal certainty²⁸² to its citizens and this is an essential principle of the BiH legal system.²⁸³

Legal certainty means that each individual may rely on the meaning and predictability of positive legal regulations, as well as on the rights and obligations arising from those regulations. This primarily means that the rights and obligations of citizens cannot be regulated based on (political) statements which are not legally compulsory (e.g., memoranda of understanding), but rather by law and similar legal acts which may be reviewed.²⁸⁴ Furthermore, upon amending a law, an individual shall not be disproportionately burdened by way of revoking his previously granted legal position in a manner that is unacceptable and inappropriate. The principle of legal certainty serves the purpose of legally guaranteed consequences being assigned to a factual substrate. A disproportional burden occurs when, for instance, the rights and obligations of an individual which have existed for a long period of time are retroactively revoked or limited.²⁸⁵ Therefore, it is contrary to the Constitution, for instance, to retroactively review the agreements on sale of socially owned apartments which had been signed 12 years earlier and which the competent public prosecutor certified.²⁸⁶ Accordingly, the legal certainty of an individual is sometimes in conflict with the public interest. A regulation which retroactively restricts the acquired legal position must comply with the principle of proportionality.²⁸⁷

In view of the aforesaid, the requirement for protecting the principle of confidence in the continued existence of legal regulations, based on which the rights and authorities have been created for the future, does not only apply to general legal acts (legislation). A judicial institution and jurisprudence (judicial practice) are to be consistent despite the fact that the courts are not formally bounded by former decisions. Therefore, the courts shall always follow the consistent practice of the ECHR.²⁸⁸ Accordingly, a citizen must also be given a possibility to expect the courts to take identical decisions in regards to identical problems in situations where the law does not provide for a certain margin of appreciation. And vice versa: if the courts enjoy a certain margin of appreciation (Germ. Ermessenspielraum), for instance, in pronouncing criminal sanctions,²⁸⁹ the independence of the judiciary must be observed. That is to say, decisions that have been made possible by law and adopted based on a judicial valuable judgment (Wertungsentscheidungen) are not to be subjected to assessment by the Constitutional Court.

Differential legal treatment requires reasonable justification. The same rule applies even to a challenged decision which is lawful and consistent with the constitution but is different in relation to other persons being in the same situation, because no one has the right to seek equality in unjustified treatment. Hence, there is no right to equal treatment if a measure/standard which is to be assessed, either as equal or unequal, is unlawful. Otherwise, legal certainty and the obligation of equal treatment would require the states to repeat unlawful actions. The said principles face the limits of another essential postulate of a legal state, which means that a lawful action of the state (rule of law) is required even when such an action would lead to unequal treatment of identical cases and to legal uncertainty.²⁹⁰ The principle of legal certainty does not protect confidence in a continued unlawful activity.

An allegation that the Constitutional Court applies unequal treatment in identical cases may be a reason for renewal of procedure in order to review the decisions of the Constitutional Court; the same rule applies even when the Constitutional Court changes its judicial practice upon publication of the challenged decision.²⁹¹ The consequence of this act is that a party that lost the case in the proceedings before the Constitutional Court is entitled to a renewal of the proceedings if the Constitutional Court subsequently revises its interpretation of regulations that used to be relevant to the decision in question or if it adopts some other decision which is a precedent.

In case U 49/03 (Decision on Merits of 26 August 2004) before the Constitutional Court, the appellant sought a transfer of an occupancy right from her grandfather who had died on 7 June 1999. In the last instance of ordinary judiciary, the RS Supreme Court dismissed her request with the argument that she, as a granddaughter, does not belong to the circle of persons entitled to seek the transfer of occupancy rights. Namely, based on the amended legal regulations that were in force from 1993 to 28 October 1999, the grandchildren of occupancy right holders were not entitled to the transfer of the said right.²⁹² The Constitutional Court first upheld the decision of the RS Supreme Court and then reasoned that the appellant, according to the then applicable laws, did not have the protected status of an owner,²⁹³ neither could the mentioned apartment be considered a home within the meaning of Article 8 of ECHR.²⁹⁴ At some later point the Constitutional Court granted the renewal of proceedings requested by the appellant since the Court, in the meantime, changed its jurisprudence in similar cases. The changed jurisprudence of the Constitutional Court, for the purpose of protecting legal certainty, required the renewal of proceedings – as argued by the Constitutional Court.²⁹⁵ In its Decision on the Merits of 26 May 2006, which followed afterwards, the Court established that there was a violation of the appellant’s right to protection of the apartment within the meaning of Article 8 of the ECHR. Unlike the ECHR, the RS Supreme Court took only positive-legal provisions into consideration, which concern the transfer of occupancy rights and, in doing so, the Court overlooked the standards of Article 8 of ECHR.²⁹⁶ Contrary to the aforementioned, the Human Rights Commission within the Constitutional Court of BiH considers that grandchildren are entitled to an occupancy right to which their grandmothers and grandfathers were originally entitled if at the moment of adoption of the final administrative decision (in the second judicial instance) the right to the transfer of the occupancy right had legally existed and provided that the relevant legal solution is not of discriminatory nature.²⁹⁷

Legal certainty requires consistency and prohibits retroactive limitation of rights. At the same time, legal certainty means that certain requirements must be met with respect to the quality of law, which must be accessible, predictable and assessable. In this regard, while pointing to the recent jurisprudence of the ECtHR,²⁹⁸ the Human Rights Commission within the Constitutional Court of BiH, in Case No. CH/03/14880²⁹⁹ draws a conclusion that the law must be, first of all, sufficiently understandable. A citizen must be in a position to conclude, based on the law, how he should behave, so that his conduct is in accordance with the regulations applicable to the case in dispute. Secondly, a norm is not considered a law within the meaning of the ECHR if it is not sufficiently and precisely defined so that a citizen may adjust his conduct accordingly: a citizen must be able – to the extent corresponding to the relevant circumstances and, if necessary, with appropriate professional advice – to predict the consequences of his actions. Of course, an absolute and precise predictability is not what is required when it comes to the consequences of the application of law. Namely, while a possibility to predict the legal consequences is desirable, an exaggerated rigidity of law would close the road to interpretations that are adjusted to the changed circumstances. Accordingly, most of the laws should be formulated by means of terms that are more or less indefinite, and whose application and interpretation is a matter of judicial practice.

Legal certainty is a prerequisite for effective legal protection. The courts should have an active role since their lack of action would cause uncertainty among the citizens when it comes to the scope and limits of their rights.³⁰⁰ An effective legal protection means that it is not allowed to conduct several parallel proceedings with respect to the same case. For instance, given the fact that Annex 7 to the GFAP envisages mechanisms for return of abandoned property, then, as far as the same case is concerned, the parallel proceedings before the Entity authorities should not be conducted³⁰¹ (violation of principle litis pendentio).

However, the rights of an individual may be subject to limitations for the purpose of protecting legal certainty. These limitations primarily include statutory time-limits.³⁰²

In the opinion of the Constitutional Court, the postulate of legal certainty requires that proceedings be postponed until, in the process of abstract control (review) of norms conducted before the Constitutional Court in accordance with Article VI.3(a) of the BiH Constitution, a decision is taken on the constitutionality of a law granting immunity to the defendant.³⁰³

Furthermore, legal certainty requires that the proceedings of finding a legal solution be prescribed and it also requires a consistent (Bestandskraft) completion of the proceedings. An exception to this rule is renewal of proceedings, which is to be treated in restrictive terms and, for instance, when it comes to evidence, the proceedings should be renewed only when new evidence arises, the so-called nova reperta. If the proceeding is unlawfully reinitiated and if an injured party is revoked of his previously granted rights, the violation of legal certainty occurs.³⁰⁴ A similar case is when an individual is granted a certain right and all available legal remedies challenging that right have been exhausted, and then, by application of an inadmissible legal remedy (this concerns the revision procedure), that right becomes the subject of a challenge again. In this case, an injured party should have confidence in the consistency of the law. If the party is revoked of that right in proceedings using inadmissible legal remedies, that would amount to a violation of the injured party’s right to have confidence in legal certainty that should be actually protected.³⁰⁵ The right acquired by a legally binding decision is protected to the same extent from retroactive revocation through a law. The principle of legal certainty obliges competent bodies to enforce a legally binding judgment.³⁰⁶