CONFISCATION OF PROPERTY GAINED BY COMMITTING A CRIMINAL OFFENSE IN B&H,: INTERNATIONAL STANDARDS AND CASE LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS AND THE CONSTITUTIONAL COURT OF B&H

Abstract

The problem of organized crime has reached worrying proportions in Bosnia and Herzegovina as well. The enormous profits earned by criminal organizations from their illegal activities give them powers that jeopardize the rule of law. On the other hand, measures adopted to combat illegally acquired economic power, in particular confiscation measures, can be crucial for the successful fight against aforementioned organizations. Therefore, certain circumstances that led legislators in Bosnia and Herzegovina to allow law enforcement agencies to take aforementioned measures cannot be underestimated. However, in every case, the rights guaranteed by law and international obligations must be respected. The paper discusses legal and institutional basis of the institute of confiscation of illegally gained property in Bosnia and Herzegovina. After the introductory remarks, the current international and domestic legal sources that regulate the mentioned matter are discussed. The third part focuses on the case law of the European Court of Human Rights and the Constitutional Court of Bosnia and Herzegovina. It is emphasized that it is not the task of these courts to take over the role of domestic courts. First of all, it is up to the domestic authorities, i.e. the courts, to solve the problems of interpretation of domestic laws and to assess the facts. In doing so, states have wide discretion in choosing how to fight the crime. The position of these courts is also emphasized that the order for confiscation of the applicants' property on the basis of high probability that it was acquired illegally – is not contrary to Article 1 of Protocol No. 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, all the more so if the owners have not proven otherwise.