Positive obligations of protection

When it comes to the protection of the right to property, the State has positive obligations. The State must provide effective instruments making it possible for an individual to exercise his/her property rights.¹⁹⁴² If the State violates its positive obligations to protect an individual so as to make third persons respect his or her property rights, then the State interferes with his or her right to property. This is the case, for example, if the legislature fails to create legal conditions for exercising the right to property – for example, if the insurance company reimburses the invalidity pension,¹⁹⁴³ or the court establishes that the possession has been taken unlawfully, failing at the same time to order repossession.¹⁹⁴⁴ The same applies if a court declares itself incompetent,¹⁹⁴⁵ or if it unlawfully refuses to resolve a dispute res iudicata,¹⁹⁴⁶ or if the administration and the courts fail to take appropriate measures in order to help the occupant while repossessing his/her apartment which he had to leave forcibly.¹⁹⁴⁷ According to the view of the BiH Constitutional Court, this constitutes de facto deprivation of property rights.¹⁹⁴⁸ In the cases where the police did not respect positive obligations under Article 1 of Additional Protocol No. 1 to the ECHR by failing to assist the authorities enforcing the eviction, the Chamber did not find de facto deprivation of property but rather a failure to respect the ownership right falling within the scope of the first rule (the first sentence of the first paragraph).¹⁹⁴⁹ The failure of the administration and courts to comply with the time limits prescribed by the law, their general refusal to enforce legally binding decisions on return or compensation for damages, and the legislature’s prevention of enforcement of such decisions constitute interference with the right to property.¹⁹⁵⁰ If the State authorities do not prevent the population from unlawfully using private land (in the instant case: the place where a mosque was constructed and destroyed during the war) as a parking place or waste- area, they violate the positive obligations of protection of property rights.¹⁹⁵¹