4. Provisions relating to the economic system

“Desiring to promote the general welfare and economic growth through the protection of private property and the promotion of a market economy”

In line 4 of the Preamble, the Framer of the Constitution constitute the legal and constitutional principle of general welfare, i.e., a social state (general welfare) and proclaim that the objective is economic growth and that the protection of private property and the development of a market economy are the framework for an adequate economic system, thus making a clear difference from their communist predecessors. Despite the fact that the constitutional text deals in a precise manner with certain elements, such as the legal right to property as a legal personality, this line has a decisive significance; it gives framework coordinates for social and economic policies in a new Bosnia and Herzegovina. The Constitutional Court and Commission for Human Rights within the Constitutional Court dealt with this framework several times. Accordingly, the conclusion that the Commission has drawn from line 4 is that the principle of a social state is applicable in Bosnia and Herzegovina.¹⁵⁶ The Constitutional Court has concluded in several decisions that these principles are binding upon the State.¹⁵⁷ Therefore, the State is not only obliged to protect against violations of the rights deriving from the aforesaid but it also has a positive obligation to promote and encourage the general welfare and economic growth when protecting private property and encouraging a market economy. Simultaneously, the State’s prerogative is to evaluate the best manner in which the general welfare and economic growth can be achieved, particularly if, owing to the circumstances, there are certain limitations, such as those of a financial nature.¹⁵⁸ Moreover, while making efforts to achieve the objectives described here, the State is not limited to the instruments laid down in the Preamble.¹⁵⁹ However, the prerogative of evaluation also has limits if the means used to achieve the constitutional aims are obviously counter-effective.

When dealing with difficult legal issues which could affect the property of large groups of the population, the Constitutional Court and the Commission for Human Rights within the Constitutional Court willingly refer to line 4 of the Preamble; such issues are, for example, occupancy rights of former members of Yugoslav People’s Army (JNA),¹⁶⁰ “lost” old foreign currency savings either in foreign banks¹⁶¹ or national banks¹⁶² or war reparations.¹⁶³ The constitutional principle of general welfare in those cases is used as an additional standard to the existing lines of the Preamble having a subjective character.¹⁶⁴ The general welfare thus leaves its mark on the interpretation of certain provisions relating to those fundamental rights which have an economic dimension.