The interest of the public authority in resolving the problem of refugees and displaced persons, which was of topical interest and necessary at that time, cannot, 8 years following the end of the war, prevail over the appellant’s interest in exercising his right to return to his home, which is the main aim of the General Framework Agreement. Thus,
interference with the appellant’s property was not proportionate to the justified aim.
• Decision on Admissibility and Merits No. U 102/03 of 28 April 2004, paragraph 44, published in the Official Gazette of Bosnia and Herzegovina, 30/04; administrative procedure and administrative dispute for repossession of the apartment
An excessive burden is placed on the appellant so that the interference with her right to property did meet the requirements of proportionality, since the relevant real property registers did not exist based on which she should have had registered her ownership right to the business premises in order to enjoy legal protection. The establishment of real property register, maintenance and updating the register is an obligation of the state so that the responsibility in case of lack of register cannot be transferred to the appellant.
• Decision on Admissibility and Merits No. AP 160/03 of 28 April 2004, paragraph 28, published in the Official Gazette of Bosnia and Herzegovina, 34/04; civil proceedings to surrender possession of business premises which the contractor sold to a third person although the appellant paid the purchase price for it
The established priority right of the owner of a building, which had been removed due to the worn out conditions or had been pulled down due to force majeure in accordance with the ruling of a competent administrative authority, to use the land for construction under the town planning conditions, is proportionate to the aim sought to be achieved, which is making it possible for the owner to reconstruct his property. This cannot constitute an excessive burden placed on the other party all the more so since that right was established in the procedure before the administrative authority or the court so that both parties are provided with adequate legal means and procedural guarantees.
• Decision on Admissibility and Merits No. AP 127/02 of 17 May 2004, paragraph 39, published in the Official Gazette of Bosnia and Herzegovina, 34/04; administrative procedure to establish the priority right to use a city construction land
The Constitutional Court concludes that a fair balance was struck between the protection of property and general interest demands. It follows that the fine was not imposed in an arbitrary manner and 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 not been violated.
• Decision No. U 65/03 of 22 September 2004, paragraph 22, published in the Official Gazette of Bosnia and Herzegovina, 60/04; minor offence proceedings due to the committed customs offence
There is no violation of the right to property of the house owner whereby there is an occupancy right over one of the apartments in the event where owners’ possibility to use their property is not limited to such an extent so as to give rise to unfair relation between the request to protect such right of theirs and the general interest to protect the lawful occupant of the part of the property, for as long as there is a valid legal basis for such use.
• Decision on Admissibility and Merits, No. AP 647/04 of 29 September 2004, paragraph 25, published in the Official Gazette of Bosnia and Herzegovina, 8/05; civil proceedings concerning the owner’s request for eviction from a part of the house of the persons occupying it on the basis of the contract on use; no violation of Article 1 of Protocol No. 1 to the European Convention and Article II(3)(k) of the Constitution of BiH established
The interference with the appellant’s right to property is not proportionate, taking into account the Supreme Court’s decision quashing the lower-instance decisions granting the appellant’s claim for recognition of his ownership right over a part of the property based on the fact that he financed the construction.
• Decision on Admissibility and Merits No. AP 230/03 of 30 November 2004, published in the Official Gazette of Bosnia and Herzegovina, 15/05; civil proceedings to establish the ownership right to a part of house in which the appellant invested financial means; the violation of Article 1 of Protocol No. 1 to the European Convention and Article II(3)(k) of the Constitution of BiH established
A legal provision, which provides that the ensured persons who have acquired the right to the proportionate part of the pension as provided for by the international agreement, acquire their rights in accordance with those agreements and are not covered by the provisions of the law on determination of minimum income, is proportionate to the aim of complying with those agreements and the scope of rights on the basis thereof. In the instant case it does not constitute an excessive burden placed on the appellant comparing to other pensioners.
• Decision on Admissibility and Merits No. AP 830/04 of 28 January 2005, paragraph 28, published in the Official Gazette of Bosnia and Herzegovina, 48/05; procedure for determination of proportionate part of early old-age pension based on the total number of years of service acquired abroad in accordance with the international agreement; 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 holds that the purpose of the provision of Article 30 of the Law on Housing Relations, which the courts applied while rendering the challenged judgments, aims at establishing legal certainty in order for the factual state of affairs to be recognized as a legal state. Therefore, the Constitutional Court holds that the burden placed on the appellant by the challenged judgment is not excessive taking into account the fact that the appellant took more than eight years to take an action in order to exercise his right.
• Decision on Admissibility and Merits No. AP 221/04 of 12 April 2005, published in the Official Gazette of Bosnia and Herzegovina, 38/05; appellant did not initiate procedure for eviction of an unlawful occupant within the meaning of Article 30 of the Law on Housing Relations
There is no violation of the right to property when the ordinary courts, by correctly applying the relevant provisions of the substantive law, dismiss the appellant’ claim due to the statute of limitations…[] Such limitations in this and similar situations are necessary for legal certainty and proper functioning of the legal system. These limitations are justified and proportionate to the aim sought to be achieved.
• Decision on Admissibility and Merits No. AP 487/04 of 18 May 2005, paragraphs 27 to 29, published in the Official Gazette of Bosnia and Herzegovina, 67/05; civil proceedings, pecuniary damage compensation; 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 ordinary court’s decision ordering the appellant to surrender the land in question to their owners does not constitute an excessive burden placed on the appellant comparing to the public interest sought to be achieved (making it possible in abstracto for the owners to have the rights and authorizations relating to objects in accordance with the public interest), and it struck a fair balance between the general interest demands of the community and requirements for the protection of the individual fundamental rights. Therefore, the interference with the appellant’s property rights is justified and in accordance with Article 1 of Protocol No. 1 to the European Convention.
• Decision on Admissibility and Merits No. AP 523/04 of 18 May 2005, paragraph 24, published in the Official Gazette of Bosnia and Herzegovina, 67/05; repossession of the real property by the owners; 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
Dismissal of the appellant’s claim for payment of the contracted amount which was subject to certain mutual obligations in the manner that the failure of fulfilling of obligation by one party did not create the obligation of the other party. The provision of Article 99(1) of the Law on Obligations does not place an “excessive and special” burden on the appellant comparing to other party all the more so since the appellant as the lawyer is a professional and has a knowledge of law and since the application of such measure is proportionate to the legitimate aim sought to be achieved by the law and the fair balance between the protection of the appellant’s right to property and general interest has been struck.
• Decision on the Merits No. AP 951/04 of 13 September 2005, paragraph 26, published in the Official Gazette of Bosnia and Herzegovina, 3/06; civil proceedings to collect the compensation arising from the agreement on business cooperation
In case when a possibility of using the road in question in the same manner as the defendant, i.e. by unlocking a movable post, is left to the appellant, and where she has the possibility of using another access, the fair balance has not been infringed between the appellant’s interest on one hand and the interest of the defendant and public interest of the Municipality of Tuzla, on the other hand.
• Decision on the Merits No. AP 1039/04 of 13 September 2005, paragraph 33, published in the Official Gazette of Bosnia and Herzegovina, 4/06
There is no violation of the right to property if the appellant is obliged, due to his failure to withdraw his lawsuit following an out-of-court settlement of damage by the defendant, to pay the defendant the judicial costs occurred following the payment, since the interference with his right to property is regulated by the law, that he has a legitimate aim in the general interest, and that the challenged decision has struck a fair balance between the protection of the appellant’s right and the general interest.
• Decision on the Merits No. AP 950/05 16 September 2005, paragraph 29, published in the Official Gazette of Bosnia and Herzegovina, 3/06
The law provision, which provides that the person in favor of whom the changes relating to the user are to be entered into updated cadastral books is obligated to produce a document showing the designation of the land according to the data from the survey and land cadastre, is proportionate to the aim of keeping uniform records according to an uniform cadastral system, and therefore does not constitute an excessive burden placed on the appellant compared to other persons requesting the change of user in updated cadastral books.
• Decision on the Merits No. AP 956/04 of 13 October 2005, paragraph 30, published in the Official Gazette of Bosnia and Herzegovina, 20/03; administrative procedure to enter the right over real property into the land books
There is a violation of the right to property when the enforcement of a legally binding court judgment is postponed on the basis of the Law on the Postponement of Enforcement of Court Decisions at the Expense of the Budget of the Republika Srpska, although the adjournment of the enforcement has a legitimate aim in the public interest but the means used are not proportionate to that aim, i.e., a “fair balance” between the general interest demands and requirements relating to the individual right to property has not been struck.
• Decision on the Merits No. AP 487/05 of 20 December 2005, paragraph 412, published in the Official Gazette of Bosnia and Herzegovina, 39/06;
• Decision on the Merits No. AP 557/05 of 12 April 2006, paragraph 192 et seq., published in the Official Gazette of Bosnia and Herzegovina, 77/06;
• Decision on the Merits No. AP 704/05 of 9 May 2006, paragraph 743, published in the Official Gazette of Bosnia and Herzegovina, 47/06
The issuance of judgment relating to the division of common property by transferring it to the appellant did not amount to an excessive burden placed on the other party to the proceedings. It would be quite unjustified and unfair to expect the appellant to enjoy larger scope of property rights than the other party for the reasons she refers to in the appeal.
• Decision on the Merits No. AP 803/05 of 9 February 2006, paragraph 26, published in the Official Gazette of Bosnia and Herzegovina, 41/06
There is no violation of the right to property when collection of pecuniary claims through court are barred by the statute of limitations, since the appellants failed to comply with the time limits prescribed by the law.
• Decision on Admissibility and Merits No. AP 951/05 of 9 February 2006, paragraph 32, published in the Official Gazette of Bosnia and Herzegovina, 43/06
There is no violation of the right to property if the ordinary courts, by correctly applying the relevant provisions of the substantive law, established that the appellant interrupted the statute of limitations regarding the claims by recognizing her debt the plaintiff claimed in judicial proceedings, since such deprivation of property was in the public interest relating to the legal certainty and proper functioning of legal system and those limitations on the property rights are justified and proportionate to the aim sought to be achieved.
• Decision on the Merits No. AP 288/05 of 9 February 2006, paragraph 34, published in the Official Gazette of Bosnia and Herzegovina, 37/06;
• Decision on the Merits No. AP 325/05 of 14 March 2006, paragraph 44, published in the Official Gazette of Bosnia and Herzegovina, 49/06;
• Decision on the Merits No. AP 562/05 of 14 March 2006, paragraph 30, published in the Official Gazette of Bosnia and Herzegovina, 57/06
The interference with the appellant’s property was proportionate and there was a fair balance struck between the general interests of the community and appellants’ interest considering that the appellant has agreed to back up the basic transaction in question with unconditional guarantee referred to in Article 1087 of the Law on Obligations.
• Decision on Admissibility and Merits No. AP 912/04 of 1 April 2006, paragraph 44, published in the Official Gazette of Bosnia and Herzegovina, 57/06
Decisions ordering the appellant to leave the usurped state-owned land were taken in the public interest and the principle of proportionality was met, since the appellant’s conduct caused dispossession of the state-owned land so the conclusion cannot be reached that the state placed an excessive burden on the appellant when the appellant lost the property without receiving any compensation.
• Decision on the Merits No. AP 706/05 of 12 April 2006, paragraph 36, published in the Official Gazette of Bosnia and Herzegovina, 57/05
Termination of the non-contentious proceedings for determination of compensation for the confiscated property, which were initiated by the appellant, as provided for by a special law of the High Representative for Bosnia and Herzegovina, does not place “an excessive and special burden” on the appellants, and the application of such measure is proportionate to the legitimate aim sought to be achieved by this law. Therefore, a fair balance has been struck between the protection of the appellant’s right to property and the general interest, i.e. in the instant case the burden placed on the appellant, in order to achieve a legitimate aim, was not excessive.
• Decision on the Merits No. AP 805/05 of 9 May 2006, paragraph 41, published in the Official Gazette of Bosnia and Herzegovina, 77/06
There is a violation of the right to property where a court judgment, which was rendered on the basis of application of a law provision relating to the time limit to file a request to acquire a right, placed an excessive burden on the appellant, i.e. the loss of disability pension which she had already acquired and had been receiving for a long period of time based on her status as civilian victim of war and permanent disabled person, which amounted to disproportionate relation between the public interest and protection of the rights of individual to the detriment of the appellant.
• Decision on Admissibility and Merits No. AP 450/06 of 5 April 2007, paragraph 34, published in the Official Gazette of Bosnia and Herzegovina, 70/07; the loss of disability pension due to the application of the law provisions relating to the time limit to file a request for acquisition of rights; 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 loss of the appellant’s acquired right due to the failure to fulfill the requirements, i.e. the time limit which was prescribed subsequently and which was impossible to comply with, constitutes an excessive and disproportionate burden placed on the appellant comparing to the public interest protected by the subsequently passed law provision, which includes infringement of legal certainty as an element of the constitutional principle of rule of law, which the Minister of the Federation of BiH and the Cantonal Court should have been mindful of when deciding the appellant’s claim.
• Decision on Admissibility and Merits No. AP 133/06 of 13 September 2007, paragraph 34, published in the Official Gazette of Bosnia and Herzegovina, 12/08; the right to family disability pension; 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 the instant case, there is interference with the appellant’s right to property, since the appellant was deprived of his property based on Article 5(2) of the Law on Amendments to the Law on the Enforcement of Decisions of the Commission for Real Property Claims (Official Gazette of Republika Srpska, 65/01), which provides that a request for enforcement of a decision of the Commission must be filed within a time limit of eighteen months as of the date when the Commission took a decision. The Constitutional Court holds that the provision in question does not meet the requirement of proportionality between the public interest and the interest of persons who are in the same situation as the appellant, so 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.
• Decision on Admissibility and Merits No. AP 1524/06 of 11 November 2007, paragraph 39, published in the Official Gazette of Bosnia and Herzegovina, 49/08; enforcement of the decisions of the CRPC, quality 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;
• Decision on Admissibility and Merits No. AP 3850/08 of 12 October 2011, paragraph 51, published in the Official Gazette of Bosnia and Herzegovina, 49/08
There is a violation of the right to property under Article II(3)(k) of the Constitution of BiH and Article 1 of Protocol No. 1 to the European Convention where an interference with the appellant’s property occurred in a way that by application of the provisions of substantive law on determination of the right to compensation for damage, as well as by application of the Statute of Brčko District and Supervisory Order, a balance between the public interest and the appellant’s interest was disturbed by placing an excessive burden on the appellant and depriving him of his right to have “legitimate expectations” in terms of his property.
• Decision on Admissibility and Merits No. AP 1362/06 of 30 January 2009, paragraph 44, published in the Official Gazette of Bosnia and Herzegovina, 63/09; compensation of damage, application of the Supervisory 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 excercising of a legitimate aim – the provision of legal certainty – cannot be a justification for the total loss of the already acquired right of an individual in a given period as the measure which has as a consequence a loss of the acquired right, partially or fully, represents an excessive burden for a beneficiary, which is the reason why the principle of proportionality has not been met.
• Decision on Admissibility and Merits No. AP 2843/07 of 12 January 2010, paragraph 35, published in the Official Gazette of Bosnia and Herzegovina, 23/10; quality of the Law on Pension and Disability Insurance of the Republika Srpska, Articles 148/2) and 151; 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 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 courts, independently from the finding that the relevant premises have been allocated to the appellant “as a new occupancy right holder” by the allocation right holder, and independently of the fact that the appellant, and her predecessor before her, had been using the relevant premises for a number of years exclusively as a residential space, dismissed the appellant’s claim exclusively for the reason that the relevant premises have not been recognized as an “apartment” in terms of Article 3 of the Law on Housing Relations. Such application of the given provision, in the circumstances of particular case, placed an excessive burden on the appellant as the far balance between the legitimate public interest and the appellant’s right to peaceful enjoyment of property has not been stuck.
• Decision on Admissibility and Merits No. AP 3773/08 of 12 October 2011, paragraph 39; the violation of Article 1 of Protocol No. 1 to the European Convention and Article II(3)(k) of the Constitution of BiH established
