There is no violation of the appellant’s right to property under Article 1 of Protocol No. 1, if the imposition of a tax had a basis in law which regulates issues concerning the public law and if its application did not place an excessive or disproportionate burden on the individual or legal person concerned.
• Decision No. U 27/01 of 28 September 2001, paragraph 29, published in the Official Gazette of Bosnia and Herzegovina, 8/02; administrative dispute, the collection of public revenues; there is no violation of Article 1 of Protocol No. 1 to the European Convention and Article II(3)(k) of the Constitution of BiH
Deprivation of property is not lawful in the situation when the competent court applies the law which, at the time of adoption of the judgment, could not be applied, i.e. was rendered ineffective.
• Decision on Admissibility and Merits No. AP 36/03 of 19 April 2004, paragraphs 28 and 29, published in the Official Gazette of Bosnia and Herzegovina, 34/04; violation of the right to property in conjunction with the right to maternity allowance
The interference with the property is not provided for by the law in case when the ordinary courts rejected the appellant’s action, since the same claim was allegedly decided although there is no objective identity of claims from the previous actions and the action which resulted in the challenged decisions.
• Decision on Admissibility and Merits No. U 32/03 of 15 June 2004, paragraph 25 et seq., published in the Official Gazette of Bosnia and Herzegovina, 40/04; civil proceedings to establish the right of ownership to the individual residential building
In the event when regular courts dismiss a claim for payment of outstanding salaries as the ownership of the defendant was transferred to the Brčko District of BiH through Order of the Supervisor, there is a violation of the appellant’s right to property as the interference with the appellant’s property is inconsistent with the law and such interference was caused by the arbitrary interpretation of the Final Award of the Arbitration Tribunal and the order of the Supervisor for Brčko District.
• Decision on Admissibility and Merits No. AP 1/05 of 18 May 2005, paragraph 35, published in the Official Gazette of Bosnia and Herzegovina, 58/08
The ordinary courts correctly found that Article 3 of the Law on the Determination and Settlement of Claims of Citizens adopted in 1997 could not be applied in the proceedings concerning the payment of the old foreign currency savings, where the appellant was obliged to pay out “old foreign currency savings to the defendants” as ordered in the court judgment in 1993.
• Decision on Admissibility and Merits No. AP 531/04 of 27 May 2005, paragraph 30, published in the Official Gazette of Bosnia and Herzegovina, 67/05; payment of the old foreign currency savings; there is no violation of Article 1 of Protocol No. 1 to the European Convention and Article II(3)(k) of the Constitution of Bosnia and Herzegovina
There is a violation of the appellant’s right to property, as a result of the erroneous application of law, since the matter falling within the scope of enforcement proceedings was decided in the contentious proceedings.
• Decision on the Merits No. AP 740/04 of 13 September 2005, paragraph 30, published in the Official Gazette of Bosnia and Herzegovina, 3/06; reimbursement of outstanding pensions, the erroneous application of law, the violation of Article 1 of Protocol No. 1 to the European Convention and Article II(3)(k) of the Constitution of BiH established
There is a violation of the right to property if the ordinary court failed to apply the relevant international bilateral agreement which should have been applied in the instant case.
• Decision on the Merits No. AP 625/04 of 23 September 2005, paragraphs 38 and 39, published in the Official Gazette of Bosnia and Herzegovina, 83/05; damage compensation (medical treatment costs) if there is a foreign element, application of international bilateral agreement; the violation of Article 1 of Protocol No. 1 to the European Convention and Article II(3)(k) of the Constitution of BiH established
Interference with the right to the appellant’s property has not been in compliance with the principle of lawfulness in case where the expropriation procedure was not conducted, and the defendant came into possession of the appellant’s plot of land.
• Decision on the Merits No. AP 1048/04 of 13 October 2005, paragraph 28, published in the Official Gazette of Bosnia and Herzegovina, 4/06
Application of Article 69(10) of the Law on Enforcement Procedure which provides for the possibility of enforcement relating to a common ownership property, in the present case, an apartment registered as the appellant’s full ownership in the Deposited Contracts Ledger, due to the obligation which does not represent an obligation jointly and severally responsible for by the spouses, constitutes interference with the appellant’s property whereby a fair balance has not been struck between the general interest demands and requirements relating to the protection of the appellant’s constitutional right to property, thus not being in accordance with the principle of legal certainty, which has amounted to the violation of the appellant’s right to property.
• Decision on Admissibility and Merits No. AP 1086/04 of 2 December 2005, paragraph 47, published in the Official Gazette of Bosnia and Herzegovina, 20/06
Interference with the appellant’s property is in accordance with the law if it is based on the legally binding court judgment, which is, in its essence, based on the company’s internal rules which have the force of a law in respect of the appellant and which meet the standards of the European Convention (transparency and clarity).
• Decision on Admissibility and Merits. No. AP 559/04 of 2 December 2005, paragraph 35, published in the Official Gazette of Bosnia and Herzegovina, 41/06; payment of the salary earned abroad, Drittwirkung effect; there is no violation of Article 1 of Protocol No. 1 to the European Convention and Article II(3)(k) of the Constitution of Bosnia and Herzegovina
The principle of legal certainty is secured by the adoption of the principle of statute of limitations with regards to claims. The state has an interest in maintaining the legal relations which lasted a certain period of time and in prescribing the time limits within which it would be possible to request court protection in case of violation of property rights and other rights.
• Decision on the Merits No. AP 1380/05 of 12 April 2006, paragraph 27, published in the Official Gazette of Bosnia and Herzegovina, 68/06; statute of limitations with regards to claims
Limitation placed on the appellant’s right to property as the consequence of the servitude right to pass across the land in favor of the plaintiff is in accordance with the law and, is in the public interest and proportionate to the aim of efficient use of land during agricultural activities so that it does not constitute an excessive burden placed on the appellant in the particular case.
• Decision on Admissibility and Merits No. AP 1292/05 of 27 June 2006, published in the Official Gazette of Bosnia and Herzegovina, 87/06; the servitude right
Depriving the appellants of their property, which was reflected in a failure to pay out the debt due to monetary and legal changes that set in after the conclusion of the contract, was in accordance with the law. Thereby, the appellants were not put in a position different from that of other parties to obligatory relationships whose dinar funds were exposed to unfavorable effects of hyperinflation and denomination in the relevant period. Thus, no personal or excessive burden was put on them in the present case.
• Decision on Admissibility and Merits, No. AP 2158/05 of 21 December 2006, paragraphs 42 and 43, published in the Official Gazette of Bosnia and Herzegovina, 34/07; failure to pay monetary debt due to monetary and legal changes that set in after the conclusion of the contract, no violation of Article 1 of Protocol No. 1 to the European Convention and Article II(3)(k) of the Constitution of Bosnia and Herzegovina established
Position of the courts which is based on relevant regulations on denomination and conversion to be applied to all claims in YU dinars, as well as to the present case, cannot be considered as arbitrary, since the Law on Central Bank of Bosnia and Herzegovina provides that convertible mark shall be a lawful means of payment in Bosnia and Herzegovina. Since lawsuits had been filed in 1990, in order to establish the amount of the appellants’ claims, it is necessary to consider all conversions of the currency and denominations thereof.
• Decision on Admissibility No. AP 271/07 of 26 June 2007, paragraph 12; appeal manifestly ill-founded
The Cantonal Court’s conclusions are inconsistent with the law whereas it concluded the article in question cannot be considered as copyrighted work, since it does not contain “originality and individuality” and since it was completed upon an order by a client and since the appellant applied already recognized methods of research to his own research. First of all, the “originality and individuality” are not the “basic elements” of a copyrighted work, as erroneously concluded by the Cantonal Court, since the law does not provide for these criteria as a condition to consider a work a copyrighted work, nor does it authorize the court to assess on its own the “originality and individuality” of professional work the court has no knowledge of, such as the forestry in the instant case. As to the fact that the research which resulted in the disputable article published in a professional magazine and its shortened version was not the appellant’s idea but it was completed by a team upon the client’s order, the Cantonal Court completely disregarded the provisions of Article 28 of the Law regulating such situation, i.e. it decided inconsistent with that provision.
• Decision on Admissibility and Merits No. AP 1223/06 of 13 September 2007, paragraph 31, published in the Official Gazette of Bosnia and Herzegovina, 86/07; copyright; the violation of Article 1 of Protocol No. 1 to the European Convention and Article II(3)(k) of the Constitution of BiH established
There is a violation of the right to property if it was established that the appellant’s claim was fully devaluated by the excessive length of the civil proceedings. Therefore, the principle of legal certainty, which includes a court decision within a reasonable time in order to avoid violating the substance of a right, has been jeopardized, and the interference with the appellant’s right to property did not meet the lawfulness requirements.
• Decision on Admissibility and Merits No. AP 2310/06 of 27 February 2008, paragraph 39, published in the Official Gazette of Bosnia and Herzegovina, 32/08; the violation of Article 1 of Protocol No. 1 to the European Convention and Article II(3)(k) of the Constitution of BiH established
Unlike the Supreme Court, the Constitutional Court holds that the appellant’s claim for compensation cannot be considered a claim for compensation for damages caused by pulling down a building but a claim for payment of equivalent value of the action composed of the defendant’s obligation to provide the appellant with the minimum housing conditions within the meaning of the Law on Housing Relations and Law on Physical Planning. The Constitutional Court therefore concludes that the challenged decisions deprived the appellant of her property that she had a legitimate expectation to acquire on the basis of relevant legal provisions, and that the challenged judgements prevented her from receiving such a compensation. Taking all this into account, the Constitutional Court reminds of the European Court’s view according to which deprivation of property without compensation is not in accordance with the European Convention (see European Court of Human Rights, James v. the United Kingdom, judgment of 21 February 1986, Series A, no. 98, paragraph 54).
• Decision on Admissibility and Merits No. AP 1000/06, of 11 March 2008, paragraph 32, published in the Official Gazette of Bosnia and Herzegovina, 32/08; the violation of Article 1 of Protocol No. 1 to the European Convention and Article II(3)(k) of the Constitution of BiH established
The appellant’s right to property has been violated by the adoption of the judgments denying him the right to purchase the apartment, since the court decision whereby that right was denied was taken by the arbitrary application of the substantive law, as the administrative authorities allocating the apartment for use have never taken a formal decision to declare the apartment for official use in accordance with Article 4(3) of the Law on Housing Relations.
• Decision on Admissibility and Merits No. AP 1255/06 of 3 April 2008, paragraph 30, published in the Official Gazette of Bosnia and Herzegovina, 44/08; occupancy right, the violation of Article 1 of Protocol No. 1 to the European Convention and Article II(3)(k) established
The Constitutional Court concludes that the principle of “lawfulness” of the challenged decision has been violated in the present case, since the ordinary court arbitrarily applied the law when it considered that the lack of accompanied regulations led to the loss of a right based on the law, which amounted to the violation of the appellant’s right to property under Article II(3)(k) and Article 1 of Protocol No. 1 to the European Convention.
• Decision on Admissibility and Merits No. AP 2609/06 of 17 April 2008, paragraph 34, published in the Official Gazette of Bosnia and Herzegovina, 49/08; holiday allowance for judges; the violation of Article 1 of Protocol No. 1 to the European Convention and Article II(3)(k) of the Constitution of BiH established
The registration of lien over the real property is allowed if the claim of creditor is determinable (individualization), although the claim at the time of registration is not certain. The manner in which the courts interpreted the provisions of Article 227 of the Law on Enforcement Procedure (Official Gazette of the FBiH no. 32/03) in conjunction with Article 251(b) of the Law on Enforcement Procedure (Official Gazette of RBiH nos. 2/92, 16/92 and 13/94), in terms that the claim must be actual and existing has been arbitrary and have led to the violation of the appellant’s right to property under Article II(3)(k) of the Constitution of Bosnia and Herzegovina and Article 1 of Protocol No. 1 to the European Convention.
• Decision on Admissibility and Merits No. AP 1274/06 of 15 January 2009, paragraph 40, published in the Official Gazette of Bosnia and Herzegovina, 28/09
The Constitutional Court concludes that the write-off of the appellant’s legal default interest rate in respect of the war period, based on Article 2(2) of the Law on the Default Interest Rate Applicable to the Unsettled Debts, was unconstitutional and, therefore, “unlawful” as the Law has modified the conditions for payment of legally binding adjudicated default interest retroactively. For these reasons, the Constitutional Court holds that Article II(3)(k) of the Constitution of Bosnia and Herzegovina and Article 1 of Protocol No. 1 to the European Convention have been violated.
• Decision on Admissibility and Merits No. AP 1311/06 of 15 January 2009, paragraph 40, published in the Official Gazette of Bosnia and Herzegovina, 20/09;
• Decision on Admissibility and Merits No. AP 2332/06 of 26 February 2009, paragraph 24, published in the Official Gazette of Bosnia and Herzegovina, 33/09
[…] Registration in the Land Registry Books by which the actual rights over the real property are acquired and which creates fiction of absolute accuracy implies an evidence of ownership and legal significance of the land registry book registration is not limited nor eliminated by the Framework Law on Privatisation or entity laws (Law on Initial Balance of Companies and Banks and Law on Initial Balance in the Process of Privatisation of the State Capital in Companies). The Constitutional Court also suggests that the registration of the right of ownership in favour of the appellants, which has a constituent character, means that the registered rights get the relevance of absolute effect (erga omnes) and not relative (inter partes) which would exist only between the contracting parties, disregarded by the decision of the Supreme Court, as well as other effects of the registration in the land registry books, such as the fiction of absolute accuracy and reliability and other principles of land law. Therefore, by disregarding clear and explicit provisions of the Law on Basic Property Relations and the Law on Land Registry Books, the Supreme Court subjected the appellants to arbitrary treatment, who upon the registration in the land registry books became the owners of the disputed real property and holders of absolute right in which the highest legal power was concentrated. Therefore, the interference with their right to property was not in accordance with the law as required by Article 1 of Protocol No. 1 to the European Convention.
• Decision on Admissibility and Merits No. AP 2157/08 of 30 May 2009, paragraph 49, published in the Official Gazette of Bosnia and Herzegovina, 82/09; arbitrary application of law, the Framework Law on Privatization; the violation of Article 1 of Protocol No. 1 to the European Convention and Article II(3)(k) of the Constitution of BiH established
The Constitutional Court concludes that there is a violation of the right to property under Article II(3)(k) of the Constitution of Bosnia and Herzegovina and Article 1 of Protocol No. 1 to the European Convention in case when the interference with the appellant’s property right is not in accordance with the law. In fact, there is a violation when the court has applied the substantive law in an arbitrary manner, concluding that only the land registry books certificate is a public document that proves the ownership right, in the situation when no prerequisites for the registration of ownership of the separate parts of the building pursuant to the Law on Land Registry have occurred, due to which, pursuant to the same law, the obligation of establishment and maintaining of the ledger of deposited contracts shall remain in effect.
• Decision on Admissibility and Merits No. AP 1274/08 of 30 May 2009; paragraph 48, published in the Official Gazette of Bosnia and Herzegovina, 73/09; the violation of Article 1 of Protocol No. 1 to the European Convention and Article II(3)(k) of the Constitution of BiH established
The Constitutional Court concludes that the first instance court awarded the appellants the penalty interest, which it did not expressly discuss, i.e. it failed to state the grounds or the reasons for its decision in the part relating to the penalty interest. The Cantonal Court took position that the appellants have the right to the default interest as of the date the suit was lodged as this concerns the periodical payments in terms of Article 279(3) of the Law on Obligations, and that it concerns a new legal position of the Supreme Court of the Federation of Bosnia and Herzegovina published in the legal bulletin. Thus it applied this legal position in its decision. The Constitutional Court holds that the reasoning of the Cantonal Court’s decision is not precise and clear enough, especially having regard to the provisions of Articles 277 and 279 of the Law on Obligations demonstrating that the default interest is awarded after the debtor’s delay. The Constitutional Court notes that salaries and other receivables based on employment status cannot be defined as periodical payments under Article 372(1) in conjunction with Article 279(3) of the Law on Obligations. The salary and some other claims arising from employment status such as, for example, the travel costs reimbursement are paid monthly, in successive calculation and continually, and some receiving such as holiday bonus, for example, are paid annually. The Constitutional Court notes that these claims arising from employment status cannot be treated as periodical payments within the scope of legal provisions regulating the issue of the “default interest on the amount of default interest” in Article 279(3) of the Law on Obligations. The salary, as well as other financial claims based on employment status are due on an exact date, and as of that date the employer is due to pay the statutory default interest as being late with fulfilling capital commitments, which is stipulated in Article 277 of the Law on Obligations.
• Decision on Admissibility and Merits No. AP 658/07 of 10 June 2009, paragraph 32, published in the Official Gazette of Bosnia and Herzegovina, 82/09; the start of default interest running to the awarded amounts based on employment status; the violation of Article 1 of Protocol No. 1 to the European Convention and Article II(3)(k) of the Constitution of BiH established
Given that it has been established in the civil proceedings that the purchase contract on the basis of which the registration was carried out in favour of the defendant does not concern the relevant real property, the Constitutional Court holds that there were no obstacles for the registration of the relevant real property in favour of the appellant with the type of right he had had before the registration of the relevant real property in favour of the defendant. For the above reasons, the Constitutional Court holds that the ordinary courts could have not dismissed the appellant’s request for registration by application of Article 28 of the Law on Land Registry (which has a general character in terms of specifying the kind of rights that may be entered into the land registers) in conjunction with Article 40 i.e. 43 of the Law. In view of the given reasons, the Constitutional Court holds that the ordinary courts have interfered with the appellant’s right to peaceful enjoyment of property by issuance of the challenged decisions through the restrictive interpretation of provisions of the Law on Land Registry and that, therefore, the violation of Article II(3)(k) of the Constitution of Bosnia and Herzegovina and Article 1 of Protocol No. 1 to the European Convention has occurred.
• Decision on Admissibility and Merits No. AP 1402/07 of 8 September 2009, paragraphs 30 and 31, published in the Official Gazette of Bosnia and Herzegovina, 85/09; the violation of Article 1 of Protocol No. 1 to the European Convention and Article II(3)(k) of the Constitution of BiH established
The decision to deprive the appellant of the apartment which was acquired by the perpetration of the criminal offence does not represent a violation of the right to property under Article II(3)(k) of the Constitution of Bosnia and Herzegovina and Article 1 of Protocol No. 1 to the European Convention, since the interference with the appellant’s property was done in the public interest and in compliance with the principle of proportionality.
• Decision on Admissibility and Merits No. AP 3388/06 of 17 March 2009, paragraph 48, published in the Official Gazette of Bosnia and Herzegovina, 50/09; forfeiture of property gain obtained by the perpetration of criminal offence; there is no violation of Article 1 of Protocol No. 1 to the European Convention and Article II(3)(k) of the Constitution of Bosnia and Herzegovina
Due to the County Court’s decision to dismiss the appellant’s lawsuit claim by application of Article 226 of the Law on Associated Labor, which is why in the particular case, which concerns the relation between the natural persons on one side and legal entity on the other side, the provisions of the given Law should be applied as they regulate the position of the legal entities in the transactions with socially owned resources and given the content and goal of the relevant Law, there was a violation of the appellant’s right to property under Article II(3)(k) of the Constitution of Bosnia and Herzegovina and Article 1 of Protocol No. 1 to the European Convention as the interference with his property has not been conducted on the basis of law.
• Decision on Admissibility and Merits No. AP 1769/08 of 13 October 2010, paragraph 28, published in the Official Gazette of Bosnia and Herzegovina, 24/11; the violation of Article 1 of Protocol No. 1 to the European Convention and Article II(3)(k) of the Constitution of BiH established
The Constitutional Court concludes that there is a violation of the right under Article II(3)(k) of the Constitution of Bosnia and Herzegovina and Article 1 of Protocol No. 1 to the 17 European Convention as the interference with that right has not been in compliance with the principle of “lawfulness”, since the regulation, which was applied, has never been publicly disclosed and equally available to all, but it was disclosed in the Official Gazette designated as “state secret”.
• Decision on Admissibility and Merits No. AP 3679/08 of 12 May 2011, paragraph 36, published in the Official Gazette of Bosnia and Herzegovina, 64/11; nullity; real property purchase; the violation of Article 1 of Protocol No. 1 to the European Convention and Article II(3)(k) of the Constitution of BiH established
The Constitutional Court concludes that there is a violation of the right to property under Article II(3)(k) of the Constitution of Bosnia and Herzegovina and Article 1 of Protocol No. 1 to the European Convention, as the ordinary court violated the principle of “lawfulness” by applying the substantive law in an arbitrary manner and by interpreting that the appellants, due to the lack of a provision in the collective agreement and Rule Book regulating the possibility to make a reduction but not a loss of the entire salary by the amount proportionate to the time the employees spent on strike within the meaning of Article 9 of the Law on Strike, were not entitled to the salary for the time period spent on strike, although it concerns one of the rights arising from employment, which is explicitly guaranteed in the law, collective agreements and employer’s acts.
• Decision on Admissibility and Merits No. AP 2581/08 of 29 June 2011, paragraph 52, published in the Official Gazette of Bosnia and Herzegovina, 104/11; strike; the violation of Article 1 of Protocol No. 1 to the European Convention and Article II(3)
(k) of the Constitution of BiH established
The Constitutional Court concludes that the challenged decision of the Supreme Court establishing that the appellant does not have the occupancy right over the relevant apartment and that it cannot be subject of purchase as it was established that it has no official status, has violated the appellant’s right to property since the judicial decision which denies that right has been adopted by arbitrary application of substantive law given that the bodies of the allocation right holder have never issued a formal decision to declare that the apartment has the official status in terms of Article 4(3) of the Law on Housing Relations.
• Decision on Admissibility and Merits No. AP 2004/08 of 12 October 2011, paragraph 36, published in the Official Gazette of Bosnia and Herzegovina, 99/11; official apartment; the violation of Article 1 of Protocol No. 1 to the European Convention and Article II(3)(k) of the Constitution of BiH established
The Constitutional Court concludes that in the particular case there is a violation of the right to property under Article II(3)(k) of the Constitution of Bosnia and Herzegovina and Article 1 of Protocol No. 1 to the European Convention because by the decision of the Supreme Court altering the first and second instance court judgements that declared the contract on real property null and void, ordered mutual restitution by reference to Article 104 of the Law on Obligations and dismissed the appellant’s request to declare nullity of the contract which was established to be concluded contrary to the compulsory regulations, the public authorities interfered with the appellant’s right to peaceful enjoyment of property, in the manner which does not satisfy the standards of lawful interference with the relevant right of the appellant.
• Decision on Admissibility and Merits No. AP 3766/08 of 12 October 2011, paragraph 63, published in the Official Gazette of Bosnia and Herzegovina, 99/11;
• Decision on Admissibility and Merits No. AP 219/10 of 28 February 2013, published in the Official Gazette of Bosnia and Herzegovina, 23/13; real property exchange; the violation of Article 1 of Protocol No. 1 to the European Convention and Article II(3)(k) of the Constitution of BiH established
The Constitutional Court concludes that the interference with the appellant’s property was unlawful because of arbitrary application of the Law on Inheritance which represents a violation of Article II(3)(k) of the Constitution of Bosnia and Herzegovina and Article 1 of Protocol No. 1 to the European Convention.
• Decision on Admissibility and Merits No. AP 69/09 of 23 February 2012, paragraph 39, published in the Official Gazette of Bosnia and Herzegovina, 25/12; probate proceedings; the violation of Article 1 of Protocol No. 1 to the European Convention and Article II(3)(k) of the Constitution of BiH established
The Constitutional Court holds that there is a violation of Article II(3)(k) of the Constitution of Bosnia and Herzegovina and Article 1 of Protocol No. 1 to the European Convention when the interference with that right does not satisfy the principle of “lawfulness” as the court in its decision has arbitrarily applied the provision of Article 28(2) of the Law on Enforcement Procedure thus preventing the appellant from reimbursing, in accordance with that provision, in the enforcement procedure the default interest relating to the costs of proceedings awarded in the enforceable document and as the court by referral to the same provision, prevented the appellant from collecting the default interest reimbursement for awarded enforcement costs although he explicitly set out such claim in the enforcement motion.
• Decision on Admissibility and Merits No. AP 3744/09 of 6 December 2012, paragraph 28, published in the Official Gazette of Bosnia and Herzegovina, 1/13; default interest reimbursement for awarded costs of criminal proceedings and the costs of enforcement proceedings; the violation of Article 1 of Protocol No. 1 to the European Convention and Article II(3)(k) of the Constitution of BiH established
The Constitutional Court notes that the ordinary courts clearly concluded that neither the counter-plaintiff nor her husband have ever been registered as owners or co-owners of the appellants’ residential facility; that the appellants’ residential facility which the counter-plaintiff inherited and in which she allegedly invested funds together with her husband, does not constitute a probate estate at all of her late husband. Nevertheless, the ordinary courts concluded that the counter-plaintiff had a standing to sue in the respective legal matter and even awarded her the compensation in the amount of 70% of the invested funds with a statutory default interest as of the date of adjudication to the date of settlement, as if it does not concern the real property the owner of which is only the one registered as such in the land registry books on the basis of valid legal title. In the particular case, that was not the defendant – counter-plaintiff nor his late son or the counter-plaintiff. Both the counter-plaintiff and her husband knew, or must have known, that the defendant – counter-plaintiff is not the owner of the business facility in Tuzla which he gave in exchange to the appellants by the null and void contract. On the basis of this it follows that they are the unconscientious builders as well. Thus, the reasons the first instance court presented, and the appellate and revision courts upheld, in relation to their conviction that, in the particular case, the counter-plaintiff has a standing to sue; that the defendants – counter-plaintiffs were conscientious, i.e. conscientious builders; and the counter-claim should be decided by the application of unlawful enrichment mechanism and not the mechanism of false management without an order, indicate the arbitrary application of the substantive law. In view of the aforesaid, the Constitutional Court holds arbitrary the position of ordinary courts that, in the particular case, the application of Articles 227 and 228 of the Law on Obligations was not appropriate but rather Article 210 of the Law on Obligations (unlawful enrichment) should have been applied, which further indicates that the interference of ordinary courts with the appellants’ property has been unlawful.
• Decision on Admissibility and Merits No. AP 4370/10 of 20 December 2012, paragraph 86, published in the Official Gazette of Bosnia and Herzegovina, 9/13; nullity; real property exchange; management without an order; the violation of Article 1 of Protocol No. 1 to the European Convention and Article II(3)(k) of the Constitution of BiH established
The Constitutional Court concludes that the challenged decision of the Supreme Court establishing that the appellant has no right to damages compensation on the account of his unsubstantiated deprivation of liberty, has violated the appellant’s right to property as the decision was adopted through arbitrary application of substantive law concluding that the appellant had not met the requirements for damages compensation stipulated by Article 527(1)(2) of the Civil Procedure Code of the Federation of Bosnia and Herzegovina.
• Decision on Admissibility and Merits No. AP 941/10 of 16 May 2013, paragraph 38, published in the Official Gazette of Bosnia and Herzegovina, 47/13; compensation of damage for the groundless deprivation of liberty; the violation of Article 1 of Protocol No. 1 to the European Convention and Article II(3)(k) of the Constitution of BiH established
The Constitutional Court concludes that the challenged rulings have violated the appellant’s right to property under Article II(3)(k) of the Constitution of Bosnia and Herzegovina and Article 1 of Protocol No. 1 to the European Convention in the situation where, because of (in practice) established parallelism of competencies resulting from the beginning of application of the Law on Notaries and its inconsistency with the Law on Inheritance of 1980, the principle of legal certainty has been infringed, which resulted in the unlawful interference with the appellant’s property.
• Decision on Admissibility and Merits No. AP 2423/10 of 9 October 2013, paragraph 37, published in the Official Gazette of Bosnia and Herzegovina, 92/13; request on registration of the ownership right over an apartment on the basis of notary processed contract on lifelong support; the violation of Article 1 of Protocol No. 1 to the European Convention and Article II(3)(k) of the Constitution of BiH established
The Constitutional Court concludes that there is the violation of the right to property under Article II(3)(k) of the Constitution of Bosnia and Herzegovina and Article 1 of Protocol No. 1 to the European Convention when the interference with the property does not satisfy the requirement of “lawfulness” for the purpose of the European Convention because the applicable law excludes the possibility of the judicial review of the Government’s decision, which creates the possibility for de facto expropriation under the exceptional legally prescribed conditions.
• Decision on Admissibility and Merits No. AP 3051/14 of 23 January 2015, paragraph 40, published in the Official Gazette of Bosnia and Herzegovina, 17/15; de facto expropriation; the violation of Article 1 of Protocol No. 1 to the European Convention and Article II(3)(k) of the Constitution of BiH established
[…] On the other hand, an issue arises as to the state’s responsibility both for the very act of issuance of driver’s licence and vehicle registration and the time limit in which the state has to and should act in such situations, i.e. what are the rights of any individual (that passes the whole procedure in the legally prescribed manner) in relation to the state which, through its competent body or issuance of a public document, has guaranteed for the accuracy of data entered in a public document and which should be taken as accurate in legal transactions. Furthermore, in the particular case, the key issues are how it was established now after so many years and what actions were taken by the competent body that led it to establish that the vehicle had been stolen upon the appellant’s submission of a request for the registration of vehicle while the same documentation has been used as done in the previous years?! Hence, why did the competent body need 14 years to establish that the stolen vehicle is at issue? The Constitutional Court notes that the Cantonal Court has not considered the appellant’s claim in this respect at all, but established that the respondent confiscated the vehicle legally from the appellant in order to return it to its lawful owner and the appellant was instructed to request the damages compensation from the vehicle seller. Therefore, the position of the Cantonal Court, in the circumstances of the particular case, that the appellant’s request for damage compensation from the respondent (because of its inactivity and failure to act, i.e. the competent body did not act in accordance with the law) is not justified and, thus, referring to Article 172 of the Law on Obligations, in the opinion of the Constitutional Court is arbitrary both regarding the deciding on the appellant’s statement of claims and regarding the interpretation/application of this provision, as the application of Article 172 of the Law on Obligations is not permitted under the standards of the human rights and fundamental freedoms protection established by the European Convention and endorsed by the Constitutional Court. In the opinion of the Constitutional Court, therefore, the interpretation and application of this provision by the Cantonal Court appears arbitrary, thus indicating that the interference with the appellant’s property has not been made in accordance with law, thus failing to serve a legitimate aim in public interest, i.e., does not have a legitimate aim that would reflect in the application of the law.
• Decision on Admissibility and Merits No. AP 1835/12 of 22 December 2015, paragraphs 39 and 40, published in the Official Gazette of Bosnia and Herzegovina, 6/16; reinstatement into possession of a vehicle which was bought by the appellant as bona fide purchaser and which was confiscated from him and returned to the owner, and was established that the respondent (Ministry of Interior Affairs) cannot return the vehicle; the violation of Article 1 of Protocol No. 1 to the European Convention and Article II(3)(k) of the Constitution of BiH established
The Constitutional Court concludes that there is a violation of the right to property under Article II(3)(k) of the Constitution of Bosnia and Herzegovina and Article 1 of Protocol No. 1 to the European Convention, as the Cantonal Court, in deciding on the extraordinary legal remedy, exceeded the bounds of its authority and the Labor Inspectorate, in its administrative measure, ordered the harmonization of the price of the study with the Decision which cannot be associated with the master study organized according to special study programs by the appellant, pursuant to Article 44 of the Law on Higher Education, thereby exceeding the bounds of their authority, given that the lawfulness of the studies and acquired academic titles is not called into question.
• Decision on Admissibility and Merits No. AP 4749/15 of 6 April 2016, paragraph 60, published in the Official Gazette of Bosnia and Herzegovina, 34/16; autonomy of the appellant as a higher education institution and its legal right to organize a master interdisciplinary study while availing itself of the right to determine a realistic cost of such a study and its right to property by charging for services it offers pursuant to the Law on Higher Education; violation of Article 1 of Protocol No. 1 to the European Convention and Article II(3)(k) of the Constitution of BiH
