In rem and in personam legal positions

First of all, in rem and in personam legal positions representing an economic value are included in the scope of protection of property rights. These are, for example, the following rights:

■ bank guarantee;¹⁷⁷¹

■ marital property;¹⁷⁷²

■ certificates;¹⁷⁷³

■ goodwill of a company as well as the acquired clients;¹⁷⁷⁴

■ interests;¹⁷⁷⁵

■ credit funds;¹⁷⁷⁶

■ reimbursement of civil litigation costs;¹⁷⁷⁷

■ compensation for the costs of an attorney assigned ex officio in criminal matters if the claim for reimbursement is based on services rendered in accordance with the applicable lawyer fee;¹⁷⁷⁸ this, however, does not include the compensation for the costs of the lawyer of a private prosecutor, since these costs are not considered as “necessary” costs in criminal matters;¹⁷⁷⁹

■ compensation for performed work;¹⁷⁸⁰

■ intangible rights;¹⁷⁸¹

■ money deposited in a bank account¹⁷⁸² in local or foreign currency,¹⁷⁸³ which belongs to a foreigner or national;¹⁷⁸⁴

■ fines;¹⁷⁸⁵

■ in personam rights being the subject of civil litigation (for example: the right to transfer ownership based on a contract on purchase of a JNA apartment;¹⁷⁸⁶ the right of the purchaser who buys an apartment from the initial purchaser of a JNA apartment;¹⁷⁸⁷ the protection is applicable even when the transfer of ownership was not effectuated during the time the purchaser was alive; the purchaser’s legal successors are also protected – if the inheritance was confirmed by a judicial authority;¹⁷⁸⁸ even those who acquire that right through exchange;¹⁷⁸⁹

■ compensation for expropriation/nationalisation/confiscation of property either in cash¹⁷⁹⁰ or in kind;¹⁷⁹¹

■ termination pay if it is provided for by the law;¹⁷⁹² but not if the person is not retired immediately after the employment termination;¹⁷⁹³

■ pension (the right to);¹⁷⁹⁴

■ sales taxes;¹⁷⁹⁵

■ possession;¹⁷⁹⁶

■ full expropriation (the claim for);¹⁷⁹⁷

■ disposal and use of socially/State owned building land either for intended purposes or not (the right to);¹⁷⁹⁸ the right to rebuild a facility on land if the original facility is destroyed;¹⁷⁹⁹ priority right to build on land over which the State has the right of disposal;¹⁸⁰⁰ this applies regardless of whether the building land is designated for intended purposes or not;¹⁸⁰¹ a temporary right to use town building land not intended for special purposes can be considered as property until the moment of its confiscation;¹⁸⁰²

■ war-related damage;¹⁸⁰³

■ servitude right;¹⁸⁰⁴

■ the occupancy right,¹⁸⁰⁵ since it is a sui generis real right and as such it represents an economic value. The occupancy right (and the ownership right subsequently) can be acquired through (a) a decision on the allocation of an apartment (b) a contract on the use of an apartment. In addition to this, (c) the person must move into apartment. In the event that these three requirements have not been fulfilled, the occupancy right cannot be acquired, and the competent authorities can initiate proceedings to evict the person. Therefore, the mere decision on the allocation of an apartment is not sufficient to consider the occupancy right as a property right falling within the scope of protection.¹⁸⁰⁶ A decision on the allocation of an apartment and conclusion of a contract on the use of an apartment are not sufficient if the person to whom the apartment is allocated has never moved into the apartment.¹⁸⁰⁷ The same applies if the decision on the allocation of an apartment and contract on the use of an apartment are declared null.¹⁸⁰⁸

An exception to the rule on the lawful acquisition of occupancy rights is provided for by Article 30, paragraphs 2 and 6 of the Law on Housing Relations. According to these provisions, in cases of unlawful use of the apartment, the state authorities are entitled to evict the person within a time limit of three years from the date of the unlawful moving into the apartment, where the owner of the apartment can do the same within a time limit of eight years.¹⁸⁰⁹ Therefore, if an apartment was used unlawfully for more that 8 years, the occupant acquired the occupancy right through the “servitude right”.¹⁸¹⁰ The eight-year time limit expired on 6 December 2000, since the occupancy right could be acquired until that date.¹⁸¹¹

Another exception to this rule is the procedure for repossession of abandoned apartments (according to Annex 7 of the Dayton Peace Agreement) by the persons who did not acquire the occupancy right formally but lived in the apartment on 30 April 1991 and were paying the utility bills on a regular basis, where the State authorities did not institute appropriate proceedings to evict them despite the fact that such persons could not produce relevant documents proving a lawful use of the apartment, such as a decision on the allocation of the apartment and/or the contract on the use of the apartment.¹⁸¹² However, we would like to point out that such cases do not relate to the acquisition of occupancy rights but to the repossession of an apartment. The situations in which a real pre-war occupant claims repossession of his/her apartment but does not have any act relating to the apartment are also included in this group;¹⁸¹³ or he/she has nothing but a decision on the allocation of an apartment,¹⁸¹⁴ where other requirements (the contract on the use of the apartment) have not been fulfilled for justified reasons such as, for example, the fact that a building has never been officially declared suitable for moving in. Article 1 of Additional Protocol No. 1 to the ECHR provides that the right to repossess the apartment cannot be acquired in such a situation. If there is no contract on the use of the apartment, where it was not possible to move into apartment, since third persons used the apartment unlawfully, the person who claims his/her right must request eviction. Otherwise, Article 1 of Additional Protocol No.1 cannot apply.¹⁸¹⁵

The occupancy right, once acquired, can be lost if the occupant moves out of the apartment or does not live in the apartment permanently.¹⁸¹⁶ The possessor acquires the right to occupy the apartment permanently and peacefully if he/ she uses the apartment uninterruptedly. According to the Law on Housing Relations, a (co-)occupancy right holder, thus the occupancy right holder under Article 1 of Protocol No. 1 to the ECHR, is the spouse of the original holder of the right who lives in the same apartment. Other occupants (members of the household of the occupancy right holder) do not have the occupancy right in a formal sense; the occupancy right holder is the only one who has such a right. However, they have a de facto right to occupy the apartment, which again is not a property right within the meaning of Article 1 of Additional Protocol No. 1 to the ECHR.¹⁸¹⁷ However, the members of the occupancy right holder’s household can acquire the occupancy right after the death of the occupancy right holder if they fulfil other requirements. A wife who lives with the occupancy right holder acquires that right automatically.¹⁸¹⁸ Certain requirements provided for by the law must be fulfilled; first of all there must be a common household¹⁸¹⁹ and an individual must have the status as a member of the common household¹⁸²⁰ in order to transfer the occupancy right from the occupancy right holder to that other person. The occupancy right cannot be transferred if the occupancy right holder left the apartment, since another apartment is allocated to him/her in accordance with a decision on the allocation of apartment. In that case, the members of the household of the “new” occupancy right holder share his/her destiny.¹⁸²¹ After the entry into force of the Law on Sale of Apartments with Occupancy Right, the occupancy right holders acquired the right and possibility of purchasing their apartments.

However, the right to purchase an apartment could be acquired provided that the apartment was occupied for at least six months, where the apartment could not be sold the first two years after the apartment had been purchased. The constitutionality of this regulation imposed by the High Representative (Article 8.a of the Law on Sale of Apartments with Occupancy Right) was reviewed by the BiH Constitutional Court in Case No. U 16/00. This regulation was to encourage refugees and displaced persons to return to their home instead of purchasing the apartments and selling them immediately after the purchase. In that manner, the international community wanted to render more difficult a process whereby the occupancy right would become an unlimited real right, where the aim was to support the return process. On the one hand, the Court has held that the occupancy rights of refugees and displaced persons did not cease to exist when they had left their apartments due to war conditions (U 16/00), since the former occupants had the right to return to their pre- war apartments (Article 3 of the Law on the Cessation of the Application of the Law on Abandoned Apartments in conjunction with Annex 7 of the Dayton Peace Agreement). Furthermore, the Court has held that this right to return is a property right within the meaning of Article 1 of Additional Protocol No.1 to the ECHR. However, “the right of an occupancy right holder is not a full property right but a right to live in the apartment and the right to, subject to certain conditions, purchase the apartment”(U 16/00). This is the reason why the scope of its protection is reduced if compared to full ownership. If viewed in isolation and independently from possible discrimination, the occupancy right does not provide the right to purchase the apartment and to acquire ownership over it. The Constitutional Court therefore concluded that the two-year rule was not in violation of Article 1 of Additional Protocol No. 1 to the ECHR.

A person who wanted to purchase an apartment with occupancy rights had to file a request for purchase of the apartment and, in addition to this, conclude a contract on the purchase of the apartment.¹⁸²² In that case, the contract was to be signed by both parties, where it did not have to be certified by the competent public attorney.¹⁸²³ However, the payment of the purchase price without a valid contract was not enough.¹⁸²⁴ The existence of a valid contract on purchase, if the occupancy right holder died meanwhile, had to be established in the inheritance proceedings.¹⁸²⁵ “Temporary” occupancy rights are also property within the meaning of Article 1 of Additional Protocol No.1 to the ECHR.¹⁸²⁶

■ Compensation for damages (the right to compensation for damages) in the case of car accident;¹⁸²⁷ in the case of inflation, denomination or devaluation;¹⁸²⁸ in the case of unlawful dismissal. The right to compensation for damages must not be determined in an arbitrary manner¹⁸²⁹ although the individual is not entitled to quantify damage, since such rights (the right to a certain amount of compensation for damages) are not included in the rights safeguarded by Article 1 of Additional Protocol No. 1 to the ECHR.¹⁸³⁰ The aforementioned two decisions of the BiH Constitutional Court contradict one another, since the Constitutional Court cannot examine whether compensation for damages has been established in an arbitrary manner without dealing with the relation between the awarded compensation for damage and the compensation which the appellant claimed and justified by producing evidence. Furthermore, the damaged party must be entitled to claim adequate compensation for damages, where what is adequate is to be determined in each individual case.

■ Shares in a company.¹⁸³¹ If a person invests his/her own property as a share in a joint stock company, he/she will lose the proprietary position within the meaning of Article 1 of Additional Protocol No. 1 to the ECHR so that his/her property will no longer be safeguarded but the shares he/ she acquired in such manner will be safeguarded within the meaning of the same Article.¹⁸³² However, small shareholders do not have a right of action to challenge the management’s decisions relating to the company itself; the small shareholders therefore lack a protected interest within the meaning of Article 1 of Additional Protocol No. 1 to the ECHR. This applies, for example, to the situation in which a decision on the sale of the company is taken (although a small shareholder is not forced to sell his share in the company¹⁸³³) or an administrative act whereby the work permit of the company is declared invalid;¹⁸³⁴

■ Ownership which is registered in land books;¹⁸³⁵ ownership acquired through the adverse possession of private real property¹⁸³⁶ or State owned property;¹⁸³⁷

■ Lease.¹⁸³⁸