Indirect “third effect” (Drittwirkung) of human rights and freedoms

The BiH Constitutional Court, in Case No. U 39/01, for the first time explicitly referred to the effect of human rights and freedoms on the rights of third persons (the principle of “third effect” of human rights and freedoms, which was developed in the German Constitutional School entitled “Drittwirkung”). The reasoning of the mentioned decision states that the human rights and freedoms in principle are related to the protection of an individual from unjustified restrictions of the respective rights and freedoms imposed by the state, although they could occasionally affect the relation among private, physical and legal persons.⁴⁹⁰ It is therefore insignificant in the present case whether the employment, concerning the appellant and the employer, is of private or public and legal nature (i.e., whether the state or a private legal entity carries passive responsibility for disciplinary sanction against the employee). In any case, if the applicability of the right to freedom of expression in a disciplinary procedure is confirmed, the courts should consider that right in interpretation and application of corresponding disciplinary regulations.⁴⁹¹ In the present case, it would require striking a balance between the appellant’s free expression of opinion, on the one hand, and the personal integrity of co- workers and clients, on the other, in order to show significance of a human right or freedom in a democratic society.⁴⁹² Naturally the Court eventually came to a conclusion that the area of protection of the human right has not even been interfered with in the present case, so that the Court did not have to take into account the freedom of expression of opinion.

In legal disputes between the private law entities who have standing to sue in relation to human rights and freedoms, all state bodies have the obligation, while applying and interpreting the ordinary positive regulations, to take into account, to a sufficient degree, the fields of application of certain human rights and freedoms and to weigh out among themselves different positions of human rights and freedoms, as the human rights of all persons should be protected in the same manner. The BiH Constitutional Court concretely examines whether the courts, while applying and interpreting relevant legal regulations, in accordance with Article II.6 of the BiH Constitution, had considered to a sufficient degree the scope and range of human rights and freedoms.⁴⁹³ Human rights and freedoms are objective values applicable to all areas of the law, so that not a single civil-law regulation should oppose the system of values of the fundamental human rights and freedoms, and it has to be interpreted in compliance with the spirit of the respective system.⁴⁹⁴

Conversely, human rights and freedoms do not directly affect other rights, although the BiH Constitutional Court, in its Decision No. U 8/99, perhaps gives such an impression. Namely, in that case the Constitutional Court had the task to adopt a decision on the appeal of a woman who had been expelled from her apartment during the armed conflict and who now wanted to return to her apartment. Indeed, the courts found that the present occupant did not have the right of ownership over the said apartment, but they did not consider themselves competent to order eviction, as that was the competence of the housing/administrative institutions. The BiH Constitutional Court granted the appellant’s appeal providing the following arguments:

“On the basis of the judgment of the Supreme Court of the Republika Srpska and the ruling of the County Court, as well as the judgment of the Basic Court, it undoubtedly follows that a one-room apartment in Banja Luka, […] had been used by Mrs. H. M., the occupancy right holder since 7 February 1980 on the basis of the contract on the use of apartment, up until 28 August 1995, when the defendant S. V., by using force, had forced her out of the apartment, thereby making it impossible for her to continue living there. This type of conduct constitutes a violation of the right […] of peaceful use of ownership within the meaning of Article 1 of Protocol No. 1 to the Convention, because the appellant’s right to possession of apartment had been forcibly denied.”

One could get the impression here that the defendant (a private person) was directly responsible for the violations of the appellant’s human rights, by having forcibly gained possession of the apartment. Nevertheless, a question arises whether the BiH Constitutional Court, in the mentioned decision, wanted to expand the effect of the fundamental human rights to a relation between private persons. This formulation could be justified rather as a lapse. One could presume so also on the basis of the reasoning that follows below:

“Since such conduct has continued to this day, the courts were obliged (given that the BiH Constitution had entered into force on 14 December 1995), in deliberating on the present case, to take into account the provisions of Article II.2, 3(e), (f) and (k) of the BiH Constitution and to bear in mind the protection of the fundamental human rights and freedoms, and to apply, thereby giving them priority over all other law, the provisions of Articles 6, paragraph 1 and Article 8, paragraph 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and Article 1 of Protocol No. 1 to the Convention. Failure to apply them brought about failure to offer court protection of fundamental human rights and freedoms provided for in the Constitution and thereby prevented the appellant’s return to the respective apartment. […].”

Yet, if one takes a better look at the Decision No. U 8/99, it will be seen that it does not concern the establishment of direct effect of human rights, because the obligation of illegal possessor to vacate the apartment is not derived directly from human rights here; his obligation certainly stems from ordinary positive regulations. What is more, in the present case the appellant’s human rights do not affect even indirectly the legal position of the illegal possessor, for instance, through interpretation of regulations in accordance with the BiH Constitution. Nevertheless, constitutional rights of access to a court and adoption of a court decision impact the interpretation of the ordinary positive regulations. Namely, the courts referred – just as they did in parallel appeals that the BiH Constitutional Court deliberated on (see, for instance, U 24/00) – to the alleged primary competence of the housing bodies, and not the courts. Still, the BiH Constitutional Court rejected this interpretation of the relevant regulations, suggesting that the appellant’s human rights and freedoms were violated by the refusal to issue an order for eviction of the illegal occupant.⁴⁹⁵ The right of access to a court and decision-making body, therefore, instruct that Article 30 in conjunction with Article 10 of the Law on Housing Relations be interpreted so that the courts must immediately order eviction from the illegally usurped apartment. In addition to the effect on ordinary positive regulations (Ausstrahlungswirkung), the positive obligation of the state to offer protection of human rights and freedoms (staatliche Schutzpflicht) may have perhaps played a role here.⁴⁹⁶ The courts were obliged to protect the appellant from an illegal limitation of her living environment, protected by human rights and freedoms, which was enforced by the illegal possessor, and, for that purpose, to ensure on their own that substantive regulations be complied with, without referring to the competence of administrative bodies while doing so.

Contrary to this, the decision in Case No. U 15/99 was probably adopted on the basis of the indirect effect of the human rights and freedoms of the returnees under Article II.5 of the BiH Constitution in conjunction with Article XII.3 of Annex 7 to the GFAP. The Court, naturally, forewent making a precise dogmatic- based decision. In Case No. U 15/99⁴⁹⁷ it was established that the authorities had allocated the appellant’s house in Prijedor to a refugee family in the summer of 1995, and had requested from the appellant to leave her house, which she did. This situation lasted for several months after the end of the armed conflict, and the appellant continued living in the same town. After her house had been allocated to the refugees, probably expecting that she would have to leave her place permanently, the appellant exchanged her house for a house half the size of her house on the Croatian island of Brač. The contract of exchange was made in the presence of a lawyer, and in September 1995 the contract was confirmed by the Basic Court in Prijedor. It was undisputed that the contracting party had not used any threats. However, it was not possible to establish undoubtedly whether and to what extent the appellant had been exposed to threats in the form of anonymous calls during the war and up until the conclusion of the contract. Thanks to, among other things, the honesty of the refugee family to whom the house had been allocated, the appellant returned to her house after the armed conflict. In March 1996 the appellant tried to have the contract of exchange of the real property cancelled in court, as she asserted that she had not entered into the contract voluntarily, but under threat. At the time of the conclusion of the contract the armed conflict was still raging. And being a Croat in Prijedor, where Serbs were dominant, as she stated, she felt as if she were under threat and forced to enter into a contract. The lower courts considered the contract valid and ordered the appellant to leave the house. The appellant filed an appeal with the BiH Constitutional Court for the violation of the right to property, home and a fair trial. She held that the ordinary courts failed to consider the wartime circumstances to a sufficient degree.

The BiH Constitutional Court first established that after selling a house, the former owner, in principle, cannot refer to the right of ownership or to the right to a home in relation to the sold house.⁴⁹⁸ Indeed, such protection is gone only if the transfer of ownership was legally valid. The voluntary nature of the transfer may, among other things, be questionable if the ownership was transferred in a situation in which the seller was in a difficult position or under strong pressure, or was in serious danger. These aspects must be taken into account when assessing the issue as to whether the seller had lawfully transferred his/her rights to another person. The BiH Constitutional Court did not find that it was proven that the appellant was in actual danger, or that the buyer of the house or a third person had forced her to enter into a contract of exchange for the real property.⁴⁹⁹ Admittedly, in assessing the transfer of ownership⁵⁰⁰ one must take into account other circumstances, e.g., that the appellant had already lived for 60 years in the house which she had inherited from her father,⁵⁰¹ and for that reason, she must have had a particular attachment to the house. There are no indications that under normal circumstances she would want to leave her house in order to live somewhere far away, in a place to which she has no attachments. Besides, the facility which she received in exchange was an unfinished summer house which she had not seen prior to the exchange. Also, the house in Brač was of a lower value than her house in Prijedor, so that the exchange, from an economic point of view, was probably unfavourable for the appellant. Therefore it appears that the transfer was unusual (abnormal transaction) and that it would not have occurred in normal circumstances. The transfer had occurred during the armed conflict, at a time when the appellant, as a Croat (in an area mainly populated by Serbs), had been exposed to substantial difficulties and when, according to her own allegations, she had feared for her life.⁵⁰² The buyer was, without question, aware of the fact that the appellant was in a difficult situation, and that that was the reason for which she was prepared to do the exchange.

Therefore the Constitutional Court was convinced that the appellant had entered into the contract of exchange of real property owing to her vulnerability. Namely, as a member of an ethnic minority, she had lived during a time when an ethnic cleansing policy had been conducted throughout Bosnia and Herzegovina.⁵⁰³ The contract did not reflect the will of the appellant under the normal circumstances. One may assume that the buyer, at least in general, was aware of the reasons which made the appellant decide to have the exchange. Making such an assessment, the BiH Constitutional Court took into account the objectives of the GFAP and of the BiH Constitution; it was necessary to remove the consequences of the cases of ethnic cleansing which had taken place during the war.⁵⁰⁴ The important objective which, among other things, was to be achieved, in view of Article II.5 of the BiH Constitution, was the return of refugees and displaced persons to their homeland and their previous homes. In accordance with Article XII.3 of Annex 7 to the GFAP, the Commission for Refugees and Displaced Persons does not recognise as valid the unlawful transfers of ownership of property. This includes all transfers of ownership conducted under coercion, or as a favour in return for obtaining permission to leave the area, or for the issuance of other documents, or transfers of ownership which were otherwise related to ethnic cleansing.⁵⁰⁵ In the opinion of the BiH Constitutional Court, redressing the consequences of ethnic cleansing, within the context of the GFAP objectives, had such a priority that in certain cases it affected legal businesses that had been legally valid and which, in other circumstances, would have been in accordance with the standards of private law. Therefore the enforcement of the contract of exchange of real property is contrary to the appellant’s right to residence and the right to property.⁵⁰⁶ The BiH Constitutional Court quashed the decisions of the lower courts and established that the contract of exchange of real property was null and void.

During deliberations the BiH Constitutional Court was certainly aware of the fact that the appeal was on the borderline between private and constitutional law. That is the reason why it offered a reasoning by which it was not called upon to examine the appeal pursuant to the Law on Obligations; on the contrary, the Court held that it was called upon to establish whether the decisions of the lower courts had violated the BiH Constitution, in particular Article 8 of the ECHR and Article 1 of Additional Protocol No. 1 to the ECHR.⁵⁰⁷ Naturally, the dogmatic link between human rights and freedoms and the ordinary positive regulations is not clearly visible. This explains the behaviour of the three judges who were against the adopted decision, as they did not hold that the Court was competent to examine the application and interpretation of the relevant regulations of the civil law.⁵⁰⁸ What is more, Judge Popović considered that the decision adopted by the majority of judges was contradictory if, on the one hand, it did not take into account as a standard the positive regulations, although it did review the final challenged judgment adopted by lower courts precisely on the basis of such ordinary positive regulations. He further held that the BiH Constitutional Court assigned to itself a position of an ordinary court, which has not been provided for by the BiH Constitution.⁵⁰⁹ This manner of operation, in his opinion, does not hold ground in the jurisprudence of the European Court in Strasbourg either.

A separate opinion is based on an erroneous presumption of sharp distinction between the ordinary and constitutional law. This separate opinion does not recognise the effect of fundamental human rights and freedoms on the interpretation and application of the ordinary law, which affects relations among private persons in the form in which it is, for example, known in the German jurisprudence or in the jurisprudence of Strasbourg.⁵¹⁰

In the judgment in Case No. AP 559/04 the Constitutional Court has a clearer reasoning – the principle of the effect of human rights and freedoms on the rights of third persons obligates the state to protect human rights and freedoms not only against state measures and activities but also to protect them against violations committed by private law legal or physical persons. With that goal in mind, the state must, apart from the obligation under Article 1 of the ECHR, act preventively in order to ensure the protection of human rights and the freedoms of an individual.⁵¹¹ This also includes the practice of efficient court protection, by means of which a citizen may exercise rights and freedoms.⁵¹² Thereby the state, of course, has a wide margin of appreciation in setting objectives and means.⁵¹³

The obligation of private law physical and legal persons, with the help of which state tasks are being carried out, must not interfere with the principle of Drittwirkung, i.e., the principle of the effect of fundamental human rights and freedoms on the rights of third persons. In carrying out its tasks through private law physical persons and legal persons the state cannot avoid the obligation of respecting fundamental rights and freedoms.⁵¹⁴