Constitutional court of Bosnia and Herzegovina | As to the proportionality

The Constitutional Court concludes that there is 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, in addition to lawful interference with the right to property that pursued legitimate aim, stipulating inadequate compensation in Article 39e of the Law on Sale of Apartments with Occupancy Right that belongs to persons who have legally binding contract of sale of the so-called army apartment instead of registration of ownership right and restitution of apartment, that include appellants, there was no proportionality of interference with the appellants’ property i.e. the excessive burden has been placed on the appellants.
• Decision on Admissibility and Merits No. AP 1205/08 of 13 July 2012, paragraph 66, published in the Official Gazette of Bosnia and Herzegovina, 79/12; JNA (military) apartments; 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 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 where the interference with the appellant’s property by the decisions of the Basic Court have infringed the balance between the public interest and the interest of the appellant and where the excessive burden has been placed on the appellant as he has been prevented from using his property freely.
• Decision on Admissibility and Merits No. AP 1986/09 of 13 July 2012, paragraph 48, published in the Official Gazette of Bosnia and Herzegovina, 81/12; request for repossession of temporarily confiscated trailer; 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 no 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 given that the interference was provided for by the law and served a legitimate aim and given that the appellant, in the meantime, after the leaving his pre-war apartment acquired the equivalent right on the territory of the states formed after dissolution of SFRY, i.e., that the excessive burden has not been placed on the appellant by the decisions of regular courts.
• Decision on Admissibility and Merits No. AP 1207/08 of 23 November 2012, paragraph 36, published in the Official Gazette of Bosnia and Herzegovina, 1/13; JNA (military) apartments, inability of the appellant to be reinstated into possession of apartment which was subject of the purchase contract and for which the courts established that it has been legally binding in terms of Article 39 of the Law on Sale of Apartments and his inability to register as the owner thereof; 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 there is no violation of the appellants’ 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, given that they have meanwhile been granted equivalent rights in other states created in the territory of former SFRY, i.e. no excessive burden has been imposed on the appellants.
• Decision on Admissibility and Merits No. AP 3151/09 of 23 November 2012, paragraph 48, published in the Official Gazette of Bosnia and Herzegovina, 1/13; JNA (military) apartments; the appellants’ inability to reposes the apartments over which they or their spouses had been the occupancy right holders before the war; 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 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 where, by the interference with the appellants’ property, which was in accordance with the law and pursued the legitimate aim, and by preventing the appellants from getting back their pre-war apartments over which they or their spouses or legal predecessors had had occupancy rights, i.e. for whom it was established that they had possessed legally valid purchase contracts within the meaning of Article 39 of the Law on Sale of Apartments, the public authorities actually seized the property from the appellants without having established the relevant facts as to whether the requirements were met so that the appellants’ pre-war occupancy rights, i.e. their rights based on the legally valid purchase contracts, were compensated appropriately and, as a result, the appellants have had to bear an excessive burden. Consequently, no fair balance has been struck between the protection of property and the demands of the general interest.
• Decision on Admissibility and Merits No. AP 1370/08 of 23 November 2012, paragraph 116; JNA (military) apartments; reinstatement into possession of the apartments over which, before the war, the appellants or their spouses or legal predecessors had been the occupancy right holders and entered into legally binding contracts in terms of Article 39 of the Law on Sale of Apartments; 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 where, by the interference with the appellants’ property, which was in accordance with the law and pursued the legitimate aim, and by preventing the appellants from getting back their pre-war apartments over which they or their spouses had had occupancy rights, public authorities actually seized the property without having established the relevant facts as to whether the requirements were met so that the appellants’ pre-war occupancy rights were compensated appropriately and, as a result, the appellants have had to bear an excessive burden, i.e. no fair balance has been struck between the protection of the appellants’ property and the requirements of the general interest.
• Decision on Admissibility and Merits No. AP 1011/08 of 23 November 2012, paragraph 87, published in the Official Gazette of Bosnia and Herzegovina, 102/12; JNA (military) apartments; the appellants’ inability to repossess so called JNA (military) apartments over which they had been the occupancy right holders but had not entered into the legally binding contracts on purchase thereof; 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 where, by the interference with the appellants’ property, which was in accordance with the law and pursued the legitimate aim, and by preventing the appellants from getting back their pre-war apartments over which they or their spouses or legal predecessors had had occupancy rights, the public authorities actually seized the property without having established the relevant facts as to whether the requirements were met so that the appellants’ pre-war occupancy rights were compensated appropriately and, as a result, the appellants have had to bear an excessive burden, i.e. no fair balance has been struck between the protection of property and the requirements of the general interest.
• Decision on Admissibility and Merits No. AP 1250/08 of 23 November 2012, paragraph 33, published in the Official Gazette of Bosnia and Herzegovina, 102/12; JNA (military) apartments, the appellants’ inability to repossess so called JNA (military) apartments over which they had been the occupancy right holders and for which the courts established that they had not entered into the legally binding contracts on purchase thereof in terms of Article 39 of the Law on Sale of Apartments as they did not submit to the court the contracts they claim had been concluded but only the payment slips to certain amounts and bank certificates on payments made; 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, where the interference with the right to property, based upon law and in pursuance of a legitimate aim, in the specific circumstances of the present case has undermined the reasonable relationship of proportionality in a such manner in which an individual has to bear an excessive burden because by the actions of public authorities the individual was brought to believe that he had acted in accordance with law, while there no longer exists the possibility to remedy the deficiency perceived by consistent interpretation of the law, on account of which he is prevented from enjoyment and protection of the right he is entitled to.
• Decision on Admissibility and Merits No. AP 2175/09 of 30 January 2013, paragraph 40, published in the Official Gazette of Bosnia and Herzegovina, 18/13; issue raised as to the validity of contract verified in the Embassy; 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 in the specific circumstances of the particular case, when the appellant as the legal successor of his mother, who had started the procedure of purchase of the apartment with existing occupancy right, paid the purchase price due and died in the meantime (on 31 July 2007), and because of the failure by defendant as seller of the respective apartment she did not sign the relevant contract, was brought to a position that he cannot exercise his rights arising from the relevant contract, a consistent interpretation of the law that the contractual parties are obliged to verify their signatures does not satisfy the proportionality relationship between the protection of general interest and the interest of an individual, and that the appellant must bear a particular and an excessive burden.
• Decision on Admissibility and Merits No. AP 1683/10 of 9 October 2013, paragraph 32, published in the Official Gazette of Bosnia and Herzegovina, 88/13; request for determination of the legal validity of purchase contract of apartment entered into by the appellant’s legal predecessor (his mother) as purchaser and the defendant as seller; the violation of Article 1 of Protocol No. 1 to the European Convention and Article II(3)(k) of the Constitution of BiH established

In response to the question whether, in the particular case, a fair balance has been struck between the protection of the appellant’s interests and a legitimate aim in public interest sought to be achieved, the Constitutional Court points out that in the civil proceedings the appellant’s disability of 70%, and the reduction of his general life activity of 80% has been established, and all of it in his thirties, and that the manifestations of disability established in addition to the resulting illness are reflected in the significant changes to his personality – impaired mobility, unstable personality, disorientation in space and time, speech impairment, occasional loss of consciousness, sitting for hours in silence or an exaggerated need for movement which results in the family members having to follow him, aggression and geeting upset easily - the appellant has a need for significant nursing and assistance which is given by the appellants who are for that reason suffering, as established by the lower instance courts. The Constitutional Court considers that, in the circumstances of particular case, in which the appellants’ deprivation of property had been performed for the purpose of enforcement of the law by which the ordinary court is authorized to evaluate the established facts for the purpose of allocation the pecuniary compensation for especially severe disability and, on the other hand, the fact that the appellants have not been awarded pecuniary compensation for mental pain and suffering because of evident physical and mental disability of their father and spouse, a fair balance of proportionality has not been stuck between the protection of a legitimate aim in public interest sought to be achieved and the interest of the appellants to whom the respective pecuniary compensation represented a form of satisfaction in the particular circumstances of life. Therefore, in the opinion of the Constitutional Court, the excessive burden was placed on appellants in relation to the necessity of public interest protection.
• Decision on Admissibility and Merits No. AP 5134/10 of 27 February 2014, paragraph 39, published in the Official Gazette of Bosnia and Herzegovina, 22/14; compensation of non-pecuniary damage; 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 considers that in the instant case such enforcement is an excessive burden placed on the appellant and that there was no proportionality regarding the interference with the appellant’s property given that, pursuant to the Ruling on Enforcement of the Municipal Court no. 65 0 I 196028 11 of 10 May 2011, the appellant must bear the excessive burden which disrupts the fair balance between the public interest and the interest of the appellant, which is in contradiction to the norms relating to the protection of the right to property under Article 1 of Protocol No. 1 to the European Convention.
• Decision on Admissibility and Merits No. AP 3381/14 of 23 January 2015, paragraph 46, published in the Official Gazette of Bosnia and Herzegovina, 17/15; enforcement proceedings; half of the pension confiscation on the basis of guarantee; 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 considers that strictly formal application of a legal provision applicable at the time of the entry into the relevant purchase contracts and on the basis of which the disposal with the endowment (waqf) apartments was prohibited and which was revoked by later amendments, placed the excessive burden on appellants in the particular case. On the other hand, in essence, the challenged decision of the Supreme Court in the circumstances of particular case would not help the plaintiff as the previous owner of the disputable apartment but would endanger the position of the first appellant who had the occupancy right and purchased the disputable apartment. Given the aforesaid, the Constitutional Court concludes that the proportionality in the protection of the general interest, which is reflected in the strictly formal-legal application of the law on one hand and the need for the protection of the appellants’ rights to property in terms of Article 1 of Protocol No. 1 to the European Convention on the other hand, has been violated.
• Decision on Admissibility and Merits No. AP 1194/12 of 30 June 2015, paragraph 41, published in the Official Gazette of Bosnia and Herzegovina, 70/12; nullity; restitution; waqf property; similar legal issue considered in the Decision no. AP 3806/11 in which the appellant was the Main Office for Administration of Waqf (Endowment) Property; the violation of Article 1 of Protocol No. 1 to the European Convention and Article II(3)(k) of the Constitution of BiH established

As to the question whether the interference with the appellant’s property is proportionate to the legitimate aim being pursued, the Constitutional Court holds that the challenged decisions, which are the basis for the interference with the appellant’s property in the present case, are proportionate to the aim and purpose and, therefore, no excessive burden is imposed on the appellant given that the impugned decisions do not essentially interfere with the scope of use of the property (the property at issue is not confiscated and the appellant is in possession of the property and uses or rents it). However, as it follows from the challenged rulings the measures were necessary on a temporary basis to prevent or to make it impossible for the appellant to alienate the property or to transfer it to third persons. In this regard, the Constitutional Court holds that the provisional measure, which is primarily related to the prohibition of alienation and disposal of the respective property, does not impose an excessive burden on the appellant compared to the public interest objectives pursued (the maintenance of public order and the prevention of organised crime, in accordance with the principle that no one can retain the proceeds of crime), and that it strikes a fair balance between the demands of the community’s general interest and the requirements of protecting the rights of the individual. Therefore, it undisputedly follows that the interference with the appellant’s property is in accordance with the principle of legal certainty.
• Decision on Admissibility and Merits No. AP 2753/13 of 30 September 2015, paragraph 57, published in the Official Gazette of Bosnia and Herzegovina, 83/15; criminal proceedings, temporary prohibition of alienation and disposal with property; 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 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 has been violated when the ordinary courts dismissed the appellant’s claim in the impugned judgments, notably the part in which he claimed the return of the purchase price when the defendant terminated the contract in question unilaterally, which had paid in executing the contract on the sale of the state capital. The adherence to the literal meaning of the used terms, in interpreting the provisions of the contract in question, amounted to the taking of the total amount of the purchase price which the appellant had paid on the basis of the purchase of the state capital (i.e. 82.50% within the time-limit given under the contract and 17.50% following the notice on the termination of the contract in question) without examining the joint intent of the contracting parties and without comprehending the disputable provisions of the contract in question in compliance with the contract law principles determined in the Law on Obligations. This prevailed over the appellant’s interest, i.e. its constitutional right to the peaceful enjoyment of property, and the only reasoning given for the aforesaid was that the set of privatization laws was applicable in addition to the Law on Obligations, which the Constitutional Court considers as neither defining the requirements of termination of the contract nor the consequences of termination of the contract, including the contract of sale of the state capital, which amounted to the interference with the appellant’s property, which was lawful and had a legitimate aim but placed a disproportional burden on the appellant, i.e. a fair balance between the protection of the appellant’s property and requirements of the public interest was struck.
• Decision on Admissibility and Merits No. AP 3164/12 of 30 September 2015, paragraph 39, published in the Official Gazette of Bosnia and Herzegovina, 84/15; state capital; fulfilment of contract /refund of payment of purchase price due; the violation of Article 1 of Protocol No. 1 to the European Convention and Article II(3)(k) of the Constitution of BiH established

As to the proportionality - part II

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