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 acquisition of the legal basis for the purchase of an apartment, arbitrarily applied the substantive law, disregarding the fact that the appellant acquired in the same court proceeding the capacity of an occupancy right holder once she formally met the condition to file a claim for the purchase of an apartment within the time limit, which, under the provision of Article 7(2) of the Law on the Sale of Apartments, starts to run from the moment of the final completion of a court proceeding, and not from the moment of entry into force of the law at issue, wherefrom it follows that the interference with the appellant’s right to property was not lawful.
• Decision on Admissibility and Merits No. AP 2184/13 of 28 April 2016, paragraph 33, published in the Official Gazette of Bosnia and Herzegovina, 47/16; violation of Article 1 of Protocol No. 1 to the European Convention and Article II(3)(k) of the Constitution of BiH
The Constitutional Court concludes that the challenged rulings of the Municipal Court in Kiseljak and the Cantonal Court in Novi Travnik led to 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, due to arbitrary application of Article 98 of the Law on Enforcement Procedure, for the mentioned courts (contrary to the real meaning of the mentioned legal provision) held that the creditor had the right to continue the enforcement against the appellant, accordingly against the guarantors too, although the creditor became the owner during the enforcement procedure of the real properties that the appellant had pledged in order to secure the debt to the creditor, while the value of the real properties at issue was estimated to the amount several times higher than the amount the creditor claimed from the appellant.
• Decision on Admissibility and Merits No. AP 4380/13 of 22 December 2016, paragraph 50, published in the Official Gazette of Bosnia and Herzegovina, 10/17; enforcement proceeding; violation of Article 1 of Protocol No. 1 to the European Convention and Article II(3)(k) of the Constitution of BiH
The restriction of enjoyment of the appellant’s ownership rights is reflected in the control by the State, namely by the public authorities over the respective land in terms of (not) giving approval for agricultural production in the manner in which the appellant would engage in it had the respective land not been in the water protection area. Therefore, control in the present case is the consequence of the respective land being located in the area, which undoubtedly constitutes a “public good” which provides water supply of the defendant. Precisely for that reason the ordinary courts concluded that the appellant had a possibility to use the respective land without spreading chemical agents, that is to say to engage in agricultural production of healthy organic foods or to use the land as a meadow. Namely, the existence of the control of property, or property rights, in cases concerning a “public good” is justified, namely restrictions established in that sense pursue a legitimate goal of the public authorities for the purpose of securing the protection of general interests of the community at large. Therefore, the Constitutional Court deems that such interference with the appellant’s property, which is reflected in the control thereof, is neither arbitrary nor disproportionate in the circumstances of the present case. In view of the aforementioned, the Constitutional Court deems that dismissing the appellant’s request for the compensation for the respective land, due to the restriction of rights of use on it, did not bring into question a fair balance, which is necessary to strike in the context of the protection of an individual’s rights protection and the requirements of general interest.
• Decision on Admissibility and Merits No. AP 2195/14 of 7 March 2017, paragraph 33; payment of the compensation for the land located in the water protection area; 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
The Constitutional Court concludes that the challenged rulings rendered in the enforcement procedure violated the appellant’s 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 there had been an abuse of rights that parties are entitled to in an enforcement procedure, which result was such that the appellant was left without things he pledged in case he fails to repay the debt, which things were estimated to the amount close to BAM 1.5 million, which were sold to the third person at a hearing for public sale of goods at the price of BAM 100 only, whereby ordinary courts noted that the appellant’s debt was reduced exclusively by the amount generated from the sale of the pledged things.
• Decision on Admissibility and Merits No. AP 3719/16 of 23 October 2018, paragraph 47, published in the Official Gazette of Bosnia and Herzegovina, 83/18; contesting the ruling on settlement; violation of Article 1 of Protocol No. 1 to the European Convention and Article II(3)(k) of the Constitution of BiH
The Constitutional Court concludes that the challenged judgments (dismissing the appellant’s request for the payment of the market value of the disputed JNA apartment) violated the appellant’s right to property under the Article II(3)(k) of the Constitution of Bosnia and Herzegovina and Article 1 of Protocol No. 1 to the European Convention, for the reason that ordinary courts, when adopting a decision, completely disregarded the constitutional obligation of direct application of the European Convention and the mandatory decisions of the European Court and of the Constitutional Court, therefore such interference with the appellant’s right to peaceful enjoyment of possessions may not be considered “lawful”.
• Decision on Admissibility and Merits No. AP 2916/16 of 31 January 2019, paragraph 40, published in the Official Gazette of Bosnia and Herzegovina, 13/19; JNA apartment; violation of Article 1 of Protocol No. 1 to the European Convention and Article II(3)(k) of the Constitution of BiH
