FACTUAL EXPROPRIATION IN COURT PRACTICE

Abstract

For a long time, there has been a controversial legal issue in the judicial practice in Bosnia and Herzegovina, which refers to the inviolability of one of the basic human rights - the right to property, guaranteed by all leading domestic and international legal regulations. It is about the institute of factual expropriation.
One of the main reasons for the long-term problem of this issue is certainly the fact that the said institute is not a legal category. In other words, there is no domestic regulation that regulates it, but it is an institute that is a product of the practice of the European Court of Human Rights, created as a result of the need to find a fair solution for situations in which the confiscation of property does not occur in the prescribed procedure, but is material actions to such an extent that the right to property has been encroached upon, that the holder of that right is deprived of its substance, i.e. reduced to the so-called bare property, without the possibility of using property rights.
The existence of a legal gap had the consequence that in the territory of Bosnia and Herzegovina, judicial practice "wandered" for many years in connection with numerous issues related to the application of this institute.
In this paper, we will try, within the permitted framework, to look back at practical problems, to give a brief overview of the evolution of judicial practice in Bosnia and Herzegovina, to point to the practice of the European Court of Human Practice as a basic guide for the actions of domestic courts, and to express personal views regarding (not) proper application of this institute by domestic courts.