ii. Annex 7 – Repossession of abandoned property

After the entry into force of Annex 7 of the General Framework Agreement, the Entities adopted the necessary laws in order to make it possible for citizens to repossess private and socially-owned apartments and other property abandoned during the armed conflict.¹⁶⁰¹ The time limits for repossessing abandoned socially-owned property were legally prescribed proportionately so that accordingly they had to be complied with.¹⁶⁰² On the other hand, the law did not provide for any time limits for repossessing private property.¹⁶⁰³ Furthermore, according to the incontestable legal prerequisite, all persons who abandoned their property in the period from 30 April 1991 to 19 December 1998 were legally regarded as refugees and internally displaced persons. Therefore, in the procedure for repossessing the property, the competent authorities were not entitled, according to the so-called property laws, to determine or consider the reasons for abandonment of the property. The purpose of this legal prerequisite provided for by Annex 7 of the General Framework Agreement was to re-establish the facts, i.e., to make the population return to where they lived on 30 April 1991.¹⁶⁰⁴ The only fact which the competent authorities could establish was whether the injured party had possessed a property on that date,¹⁶⁰⁵ which means that this fact could prevent the authorities from allowing the persons who were not in possession of the property on the relevant date to return the property.¹⁶⁰⁶ When it comes to socially-owned apartments, the persons having the right to repossess the property are both the occupancy right holder and members of his/her household.¹⁶⁰⁷ If the occupancy right holder died before the adoption of a decision on repossession of property, the members of his household could continue with the proceedings and submit evidence proving that the occupancy right holder had met all of the legal requirements to repossess the apartment. Only after the decision on repossession of the apartment had been taken did the members of the occupancy right holder’s household have the obligation to file a request for transfer of the occupancy right according to the Law on Housing Relations.¹⁶⁰⁸ Neither the administrative authorities nor any party to the procedure for repossessing the apartment had the right to submit evidence proving that the applicant of a claim for repossession of apartment, who had proved that he/she had been in possession of the apartment on 30 April 1991, did not meet the legal requirements to be the occupancy right holder according to the Law on Housing Relations.¹⁶⁰⁹ Only after the procedure for repossessing the apartment was concluded, a third person who had a legal interest, i.e., the authorities legitimated in accordance with the law, had the right to institute relevant proceedings for reasons provided for by the Law on Housing Relations. Therefore, a person who repossessed the apartment in accordance with the decision on apartment repossession had to face the possibility of again losing possession of the apartment if he/she did not meet the requirements laid down in the Law on Housing Relations. For example, if there is a legally binding judgment rendered in 1992, whereby the possessor of the apartment was ordered to move out of the apartment, that judgment could be a legal basis for evicting the re-possessor from the apartment. Furthermore, possession of an apartment which was returned upon the procedure for repossessing the apartment could be challenged again if it was established that the aforementioned person had been in possession of the apartment on 3 April 1991 but had not occupied the apartment for more than 6 months before that date.¹⁶¹⁰

As to the procedure for repossessing the apartment, the exception to this rule applies to the situation where there is a contract on exchange of apartments.

In such a case, the procedure for repossessing the “pre-war” apartment, which was exchanged subsequently in accordance with the contract, is suspended and the competent court is given an opportunity to establish the legal validity of the contract on exchange of apartments.¹⁶¹¹ The competent authority must not adopt either a favourable or unfavourable solution relating to the return of the apartment before the court makes a decision on the validity of the contract on exchange of apartments.¹⁶¹² The contract on exchange of apartments must be legally valid in order to have effect on the request for repossession of the apartment.¹⁶¹³

If the apartment or other property was destroyed during the war so that it could not objectively be returned to the person who filed a request for repossession, the Entities do not have an obligation to reconstruct the apartment or other property nor do they have an obligation to pay compensation. However, insofar as the Federation of BiH is concerned, this fact should not be an obstacle for the competent authority to take an appropriate decision on return of destroyed property if the applicant submits evidence proving that he/she has the right of repossession. Moreover, the person whose socially-owned property was destroyed is entitled to purchase that property after the decision on return of destroyed property has been taken. Therefore, the administrative authorities are obliged to make a decision on return and, if the decision is favourable to the applicant, he/she has the right to initiate the procedure for purchase of the property. However, for precautionary reasons, the administrative authorities have the right to forbid the use of destroyed property.¹⁶¹⁴ On the other hand, the Republika Srpska undertook to pay compensation for irreparably destroyed socially owned property.¹⁶¹⁵ Finally, if it is established during the proceedings that the State is to be held responsible for destruction of property, or it can be held responsible for allocating the property for use by a third person (for example, land was allocated for construction of private apartments or business premises) so that the pre-war possessor cannot repossess his/her property, another adequate property must be allocated to the person who has filed a claim for repossession or he/she must receive compensation for it.¹⁶¹⁶