War and ownership

When it comes to property rights,¹⁷⁴² legislative, administrative and judicial authorities face a difficult task.¹⁷⁴³ During the war, hundreds of thousands of people left their property or possessions for more secure regions. Taking into account such a situation, it was necessary to provide accommodation for refugees and displaced persons (“within their own” ethnic group). As the accommodation capacities were far from sufficient to meet demands, people encroached on the apartments and houses which had been left by their real owners and possessors. In order to legalize the possession of the new occupants, socially owned apartments and private real properties were declared “abandoned” if the occupancy right holder and/or his/her relatives abandoned the real property or if they did not occupy it temporarily. New possessors were given the right to use such real properties. In such cases, people lived in the apartments of third persons in a manner which was “allegedly” lawful. The apartments which were not abandoned “willingly” by their occupants (for example, due to ethnic cleansing), including destroyed apartments and the apartments to which the lawful occupants returned within the time limit after the armed conflict could not be declared abandoned. However, the real situation seemed to be different even in such cases. If the original (pre-war) occupants did not leave their apartments and if they were not “welcome” based on their ethnic origin – additional pressure was exerted on them by accommodating refugees in their apartments according to the summary procedure so that they were evicted in a summary manner as well.

After the Dayton Peace Agreement had been signed, the international community requested that the Entities make it possible for refugees and displaced persons to repossess their pre-war real properties. The legal and political basis was Annex 7 of the Dayton Peace Agreement and Article II.5 of the Constitution of BiH. In order to achieve these aims, the representatives of the international community, particularly the OHR, OSCE, UNHCR, UNMBiH¹⁷⁴⁴ and the Commission provided for by Annex 7 within the so-called Property Law Implementation Plan (PLIP) cooperated in a coordinated manner. In addition to this, the return of refugees was supported by a number of non-governmental organizations which provided logistics and financial and moral support to the refugees in the field. Within the national boundaries, cantonal ministries for physical planning were responsible for the process of the return of refugees and displaced persons in the Federation of Bosnia and Herzegovina, while the Ministry of Refugees and Displaced Persons was responsible for the same process in the Republika Srpska. It was necessary to organize the return for hundreds of thousands of refugees and displaced persons and to regulate their property relations, particularly in the cases where people decided not to return de facto but only to regain possession or ownership, i.e., the economic value of their pre-war possession or ownership. The right to repossess the pre-war real properties was a key element of the return process all the more so since the reinstatement to previous employment positions was rarely possible in the difficult economic situation even when the employer was willing to do it.

During the first years after the war, legal regulations dealing with the rights and obligations of refugees and displaced persons were tendentiously unfavourable. For example, the time limit for filing a claim for repossession of an abandoned apartment was short. Moreover, the time limit for filing the claim was published in an absurdly unsatisfactory manner so that a number of former occupants and owners failed to comply with the time limit. The members of the so-called ethnic minority groups who had left their possessions during the war were particularly affected. For this reason, such regulations were doubly discriminating. On the one hand, they prevented the members of minority ethnic groups from repossessing their real properties, and, on the other hand, they operated in favour of new possessors – the members of the majority ethnic group – so as to make it possible for them to keep possessing the aforementioned real properties.¹⁷⁴⁵ Partially in cooperation with the national relevant authorities and partially as an act of international community, a “highly confusing”¹⁷⁴⁶ system was created – as it was described by the Human Rights Chamber – which was supposed to make it possible for the former occupants to regain their possessions, i.e., their ownership.¹⁷⁴⁷ In order to improve the situation relating to the return, both Entities reformed their regulations relating to abandoned property in a similar manner in 1998. All laws dealing with abandoned property, together with the by-laws, were declared invalid. Former occupants of the apartments were entitled to return to their apartments and to transform the occupancy right into ownership rights one year after the repossession of the apartment. In order to support a sustainable return, former occupancy right holders, now the new owners of privatised apartments, were not entitled to sell their apartments within a time limit of two years after the repossession of apartments.¹⁷⁴⁸ This restriction on the right to sell the apartment was annulled at a later stage. Taking into account the objectives of the return process, the High Representative used to supplement, rectify and harmonise the Entities regulations dealing with the property rights. This included, inter alia, the extension of time limits for filing a claim for repossession of an apartment, where contracts on use of apartments, which had been concluded during the war and immediately after the war, were declared null ex lege. In addition to this, the High Representative retroactively annulled all decisions and declared invalid all measures taken by the relevant authorities with regards to the socially owned property, subsequently State owned property, which had been allocated to private persons during the war or after the war, since this massively affected the refugees’ and displaced persons’ right to repossession, and thus hindered the return process.¹⁷⁴⁹

The formulation and implementation of the objectives of the return process constituted, in themselves, a difficulty. For certain observers the objective of the international community was not only to make it possible for refugees and displaced persons to return. The involvement of the international community did go beyond the limits of making it possible for them to return; it aimed at encouraging the return process and even at putting a certain pressure on it.¹⁷⁵⁰ Yet others criticised that not only the national authorities but also the international community neglected the return process. Given the huge scale of migration of refugees, an obstacle almost insurmountable was the fact that the return process could not progress in a synchronised, i.e., parallel manner due to its massive nature. Owing to the circumstances, the refugees and displaced persons from one ethnic group lived in houses and apartments of the other ethnic group. If the situation had been ideal, all refugees and displaced persons would have left their homes and returned to their homes in a parallel manner, at the same moment, thus leaving the real properties to the initial possessors. However, in the field, a number of refugees and displaced persons did not want to return to their places of origin. In other cases, the apartments were destroyed or temporary occupants still lived in their apartments, since they did not have alternative accommodation, or the authorities refused to enforce decisions on eviction. It often happened that people had to move into garages or similar facilities, since they were not entitled to temporary accommodation according to the laws, or there was no accommodation, where their pre-war apartment was destroyed. Certain Entity laws dealing with this issue aimed at partially resolving the problem of mutually occupied apartments by imposing the reciprocity clauses, which practically made it impossible for individuals to repossess their property. For these reasons, the Human Rights Chamber declared such regulations contrary to the ECHR.¹⁷⁵¹

Therefore, the factual substrate in Case No. U 15/00 dealt with by the BiH Constitutional Court is not a unique case but it illustrates obstacles to the return process: the appellant left a one-room apartment in Zvornik at the beginning of the war (1992) and, based on a decision of the – incompetent – Public Security Station (in Zvornik) of the Ministry of Interior, moved into the apartment of a family who left Zvornik. After the war, the Commission for the Accommodation of Refugees and Administration of Abandoned Property issued a ruling ordering the appellant’s eviction from the apartment within a time limit of three days. The Ministry of Refugees and Displaced Persons of the Republika Srpska dismissed a complaint filed by the appellant, since he did not have the status of refugee according to the law. The appellant brought an action before the Supreme Court of the Republika Srpska, which quashed the administrative act for procedural failures and incompletely established facts, whereupon the Commission quashed the 1992 administrative act of the Public Security Station. The appellant filed a complaint with the Ministry against the act quashing the ruling but without success, whereupon he initiated an administrative dispute by bringing an action before the Supreme Court of the Republika Srpska, which quashed the ruling of the Ministry and remitted the case for new proceedings and decision. In the Supreme Court’s view, the crucial issue, i.e., whether the apartment could be considered abandoned according to the law, was not completely clarified. Furthermore, it was not clear why the Commission and the Ministry considered the appellant as unlawful occupant, since he had moved into the apartment based on the ruling of the Public Security Station. As the Ministry of Refugees and Displaced Persons of Republika Srpska did not take a decision which could be enforced within the time limit prescribed by Article 62 of the Law on Administrative Disputes, the appellant requested the Supreme Court to take a decision accordingly. However, the Supreme Court established that the Ministry had not complied with its order and the ruling of the Commission had been issued based on the incompletely established facts. The Supreme Court therefore concluded that the Commission had to take a new decision. The appellant addressed the BiH Constitutional Court requesting it to quash the ruling of the Supreme Court, to order for it to deal with the case by itself and to take a final and enforceable decision. The BiH Constitutional Court found that meanwhile the Ministry of Refugees and Displaced Persons of the Republika Srpska had placed the apartment at the disposal of a third person. That person stated that he would leave the apartment in order to make it possible for the original occupant to repossess it but only after regaining possession of his apartment in Sarajevo.