Lawfulness of interference with the right to property
Interference with the right to property is subject to “the conditions provided for by law […]”. The obligation of lawfulness has a central meaning within the principle of the legal state in order to justify any interventions whatsoever into the right to ownership.1952 Therefore, this principle is equally related to the deprivation de facto and deprivation de iure.1953
At any rate, every interference without legal basis is unlawful where, for example, the administration takes a lawful possession without complying with the procedure for deprivation of the right to possession provided for by the law.1954 In addition, the notion of “legal basis” covers not only the laws but also other general legal acts such as decrees and acts of public companies (statutes etc.) based on which the employer pays compensation for performed work, if such acts fulfil the standards of the ECHR (publicity, i.e., access and transparency).1955
However, an interference is unlawful even if there is a legal basis but that legal basis is not brought into line with the BiH Constitution, i.e., compatible with the ECHR. According to the ECHR, the legal basis must be accessible to the individual and formulated in a sufficiently clear manner.1956 If the aforementioned is not the case, the affected person is not able – or is able solely with appropriate advice – to behave in accordance with the law and to foresee what consequences a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring with it excessive rigidity, whereas the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions to be resolved by courts and competent authorities.1957 The use of vague terms is therefore necessary and allowed but in the event a disputable case arises there must be the possibility of review by courts.1958
As any interference with the right to property must be in accordance with the BiH Constitution and thus ECHR, the Constitutional Court and other courts and administrations are obliged to review the conformity of applicable laws with the BiH Constitution and European Court of Human Rights while examining the lawfulness of interference.1959 In this respect, not only are human rights and freedoms included in the constitutional standards but also the constitutional principle such as the legal state or separation of powers.1960 For example, the situation in which the executive power adjourns the enforcement of a legally binding judgment, either by issuing a decree or tacitly, constitutes a violation of the principle of separation of powers, since it does not have the right to interfere with the judicial power.1961 In order for the interference to be lawful, it is necessary to apply the appropriate law and to apply it correctly, not arbitrarily; this is not the case if the legal basis is not in force any longer,1962 if the law is applied wrongly or arbitrarily,1963 or if the interference is based on an incorrect law.1964
If the interference lacks legal grounds or if the legal grounds are unconstitutional, the examination of the proportionality of the interference is of no significance anyway.1965
The interference which does not take account of the decisions of the High Representative or temporary measures imposed by the Human Rights Chamber is unlawful.1966 The measures which had a legal basis at the beginning must not be in force any more if the related legal basis was abrogated subsequently. In this respect, temporary allocation of abandoned apartments to refugees based on the Law on Abandoned Apartments was probably covered by the law at the beginning. However, if the legal basis was later abolished, and all administrative, judicial and other decisions which were taken in compliance with that law were rendered ineffective, then the continuation of the allocation of apartments to third persons is without legal basis.1967 It amounts to the same situation, whether there is no legal basis or if it is abolished in a judicial decision.1968
Footnotes
CH/98/166-A&M, paragraph 82.
CH/99/2425 et al.-A&M, paragraph 127 et seq.
AP 1048/04, paragraph 28.
AP 559/04, paragraph 35.
U 74/03, paragraph 34.
CH/03/14880, paragraph 39, with reference to the ECtHR, Sunday Times v. The United Kingdom, 26 April 1979, Series A no. 38, paragraph 47 et seq.
CH/98/375 et al., paragraph 1246 et seq.
U 106/03, for more details, see “b. Obligation to submit a request”, p. 867, relating to the obligation to respect the BiH Constitution.
Compare, CH/03/13106 et al., paragraph 32 et seq.; CH/03/14880, paragraph 43.
CH/01/8110-A&M, paragraph 51 et seq., with reference to the judgment of the RS Constitutional Court in Cases U 36/96 and 49/96 of 30 March 1999. However, the adjournment of enforcement can be lawful if it is provided for by law. However, the law must strike a fair balance between the general interest and the injured party’s right to property (CH/01/8110-A&M, paragraph 54 et seq., paragraph 62).
AP 36/03, paragraph 28 et seq.
AP 740/04, paragraph 30; U 32/03, paragraph 25 et seq.
AP 625/04, paragraph 38 et seq.
CH/98/166-A&M, paragraph 82, with reference to the ECtHR, Iatridis v. Greece, 25 March 1999, Reports 1999-II, p. 97, paragraph 58.
CH/00/6134-A&M, paragraph 92 et seq.; CH/01/7701-A&M, paragraph 144.
U 14/00, paragraph 35.
CH/97/104 et al.-A&M, paragraph 138 et seq.: in that case, it was quashed by the judgment of the Constitutional Court of FBiH.