Human rights and freedoms: protection, restriction and justification of interference

Violations of human rights and freedoms are examined in three steps.⁴⁶¹ The first step to be investigated is whether a certain life situation falls under the protection of some of the fundamental human rights and freedoms, such as, for instance, whether an apartment to which one has the rights to constitutes “home” within the meaning of Article 8 of the ECHR,⁴⁶² whether an occupancy right constitutes “ownership” as referred to in the ECHR,⁴⁶³ or whether a certain statement falls within the scope of protection of the freedom of expression.⁴⁶⁴ The next step is whether these protected rights have been, possibly, interfered with, for instance, if the courts prevented repossession of an apartment. Last of all is to investigate whether an interference was justified, and it will be justified only if provided for by law, if a legal measure in a democratic society is necessary for the sake of a certain – and, under the ECHR, justified – goal and if it fulfils the requirement of proportionality.

The principle of an obligation of interfering with human rights and freedoms on the basis of the law (Gesetzesvorbehalt) first requires the existence of a legal basis for the restriction of some protected fundamental human right and freedom. It is within the competence of the legislature to exhaustively regulate conditions for restrictions, so that an individual can anticipate the consequences of his/her own actions in the circumstances which correspond, to a sufficient degree, to an individual case.⁴⁶⁵ In addition, the law must be generally accessible in an appropriate manner.⁴⁶⁶ On the basis of the principle of hierarchy of norms⁴⁶⁷ it arises that the very law which serves as a legal basis for the restriction of some fundamental human rights and freedoms must be brought in line with the law of higher status. Therefore, it is necessary to check whether the disputable legal basis has been brought in line with the BiH Constitution and the ECHR in substantive terms.⁴⁶⁸ It goes without saying that the application of the legal basis must be lawful. If mistakes occur during the application and interpretation of the legal basis, then the restriction of the fundamental human rights and freedoms is not based on the relevant law and is thereby contrary to the ECHR and the BiH Constitution. Naturally, from the doctrine of the third instance of the Human Rights Chamber, i.e., from the doctrine of self-restriction of the BiH Constitutional Court (as they are not courts of cassation), certain restrictions arise in relation to the points of reference applied while reviewing decisions of the lower instance courts.⁴⁶⁹ Areas relating to the essence of some fundamental human rights and freedoms must be regulated by the very legislature. The legislature has no right to delegate those areas to the executive branch, i.e., to the administrative bodies, for them to regulate it within the scope of the right to enact ordinance.⁴⁷⁰