Interference with the right to property in the general/public interest

If the interference is lawful within the meaning of the BiH Constitution, i.e., the ECHR, then another requirement must also be fulfilled: interference which is provided for by law must be in the legitimate public/general interest. In the Case James v. The United Kingdom, the European Court of Human Rights rejected the applicant’s request that the term “public interest” be reduced to the term “the interest of the community” and held that the subject and aim of Article 1 of Additional Protocol No.1 to the ECHR are the protection against the arbitrary, compulsory taking of property.¹⁹⁷⁰ Moreover, the public interest provided for by law cannot be applied arbitrarily.¹⁹⁷¹ The legitimate aim of deprivation in the general interest can relate to the public and private interest. In other words: a deprivation whose interests are the priority rights of third persons can be considered in some cases as a deprivation in the general interest. The priority rights of individuals are not more significant than the priority rights of third persons or the public, i.e., the general interest of a community.¹⁹⁷² If there is a legitimate interest at the moment of making a decision but it ceases to exist at a later point, this usually entails the fact that there is no justification of intervention in basic rights any more.¹⁹⁷³ This means that it becomes legitimate to prove that an interference with the right to property is unconstitutional if a law, which was formally in force, has become obsolete based on the fact that its existence is no longer justified due to a change in the factual and legal circumstances.

The notion of a legitimate aim in the general interest should be defined in each individual case. When it comes to this term, the Human Rights Chamber has referred to the case-law of the European Court of Human Rights, stating that the national authorities, because of their direct knowledge of their society and its needs, are in principle better suited than an international judge to appreciate what is “in the public interest”. The decision to interfere with the right to property involves consideration of political, economic and social issues on which opinions within a democratic society may reasonably differ widely. Therefore, the European Court of Human Rights generally respects the decisions of the national authorities unless such decisions are manifestly without reasonable foundation.¹⁹⁷⁴ For example, an Entity’s regulation imposing a six-month time limit for the retroactive payment of a pension from the date of filing a claim passed this type of test.¹⁹⁷⁵ However, the argument relating to the directness or autonomy of national decision-making procedures (European Court of Human Rights v. competent authorities of BiH) can apply in a restricted manner and in the national legal context (the BiH Constitutional Court v. other national authorities), since the BiH Constitutional Court is geographically, politically and socially more similar to the decision-making procedures in Bosnia and Herzegovina than those of the European Court of Human Rights. However, the courts at the highest level, including the BiH Constitutional Court itself, are recommended to refrain from interfering with the competence of authorities at the lower levels, since the administration and ordinary courts within a national legal system are more familiar with any particular case.¹⁹⁷⁶

The Constitutional Court and Human Rights Chamber, in their case-law, have indicated as a priority public interest the justification of interventions aiming at mitigating the consequences of the war. However, the usual aspects of the public interest indicated in the case-law of other democratic societies and countries (such as a functional legal system, establishment of legal certainty by prescription of statute of limitations¹⁹⁷⁷ or creation of social justice through distribution of socially owned property),¹⁹⁷⁸ got meanwhile a particular role.

In the cases relating to the repossession of the JNA apartments, the Chamber confirmed that there could be a legitimate interest in equally guaranteeing the right to the purchase of apartments with an occupancy right. However, the Chamber could not recognise such a deep social imbalance between the conditions of purchase of apartments of JNA members on the one hand, and other occupancy right holders on the other hand in order to justify a declaration of retroactive invalidity of the contracts of purchase of JNA apartments.¹⁹⁷⁹ However, deprivation of an occupancy right (including the impossibility of repossessing the apartment) and the private property (through the privatisation of apartments) of the persons who were members of military forces outside the territory of Bosnia and Herzegovina after 19 May 1992 (when it comes to the occupancy right) and after 14 December 1995 (when it comes to the privatised JNA apartments) is in the general interest since it serves (a) to meet the housing needs of the members its own army, demobilised soldiers and thus the public welfare,¹⁹⁸⁰ but also (b) to protect the principle of loyalty towards its own country.¹⁹⁸¹

The State has a wide margin of appreciation to regulate the use of private property for military purposes at the time of an imminent threat of war and at wartime, since the national security and defence of a country are strong general interests.¹⁹⁸² At any rate, temporary deprivation of property for military purposes is in the public interest during wartime.¹⁹⁸³ After the war, the State’s obligations to compensate for war-related damage and to pay old foreign currency savings could not be fulfilled at once, since it would have jeopardised the macroeconomic stability of the country, its sovereignty, financial independence and banking system.¹⁹⁸⁴ In the context of the return process, the public interest is not only a prompt return of houses and apartments used for accommodation but also the business premises, since their capacity was also an important factor influencing the decision of refugees and displaced persons to return¹⁹⁸⁵ – the reason being the fact that they served often as a means of earning a living.