Delays or denial of the right to repossession of property

In a series of cases, the BiH Constitutional Court and the Human Rights Chamber, including the Human Rights Commission within the BiH Constitutional Court, dealt with the failed attempts of owners and occupancy right holders to repossess their pre-war property. On the basis of the old, “wartime” legal basis, which was in contravention of the ECHR, the competent institutions and authorities had declared the pre-war property abandoned or had instantly and directly allocated it to third persons, and had seized it, oftentimes unlawfully, and at times forcibly.²³⁵⁰ In some cases, the appellants, i.e., applicants, met with the silence of the administration or inactivity of the competent authorities, notwithstanding the fact that the legal situation was changed so as to guarantee to the pre-war owners and occupancy rights holders the rights to repossession of their respective property. It was practically impossible for them to exercise their rights in such a manner. Finally, the courts rejected their claims, oftentimes thereby unlawfully denying their own jurisdiction.²³⁵¹ Less seldom were the competent administrative authorities or courts pro forma active. However, the damaged persons were unable to effectuate their claims due to the impossibility of obtaining an enforceable judgment, as the case was continuously being referred back from the higher to the lower instances and vice versa.²³⁵²

Even when the courts were able to preserve their independence, and adopted a decision on the eviction of an unlawful occupant in favour of the so-called minority returnees, repossession would fail as a result of the impossibility to implement such a decision in the enforcement proceedings. In some cases the enforcement proceedings would stall, even after unjustifiably lengthy administrative or judicial proceedings,²³⁵³ or police forces would refuse to render the necessary support, that is they would hold that “they were not in a position” to assist the competent executive judicial authorities, which were opposed by groups of citizens organised in order to “protect” unlawful or temporary occupants.²³⁵⁴ Occupancy rights holders experienced similar things. Despite final decisions of the CRPC upholding their occupancy right and the right to the restitution of their apartment, they were unable to repossess their respective apartment, in spite of numerous attempts. Namely, in many such cases the domestic competent administrative authorities refused to issue a ruling on the enforcement of a decision of the CRPC in a timely fashion, that is to say within the legal time limit.²³⁵⁵ At times returnees who had enforceable judgments were denied repossession of property with the reasoning that such facilities were not habitable, for the reason that their purpose had been changed in the meantime, that is they were transformed into business premises.²³⁵⁶ In such situations the only possibility that the damaged persons were left with was compensation for damage.

If, after all those problems, returnees still managed to repossess their property, it would happen oftentimes that it had been destroyed or looted. Unfortunately, in many cases returnees were unable to prove who had stolen or destroyed their property, and that the competent authorities were responsible. Nevertheless, in one case the Human Rights Chamber obtained relevant information and consequently adopted a decision establishing that authorities competent for the return were responsible, because their failure to act resulted in the theft of the applicant’s property.²³⁵⁷ The Human Rights Chamber was not in a position to establish in all cases discriminatory motives on the part of the competent authorities to carry out obstruction, although in many cases there was room for such a view.²³⁵⁸

By the time the application of the legislation on abandoned apartments or property was completed, the legal situation, despite its neutrality, was discriminating against the so-called minority returnees, so that ethnic cleansing, which had taken place during the armed conflict, “continued”. Namely, it was completely logical for the members of “the minority groups” in a certain territory to leave their homes because of the armed conflict. It was those persons precisely who, by instituting proceedings for the repossession of property, had to face the legal situation where their apartments were occupied by third (more often than not, also displaced) persons.²³⁵⁹

The incomprehensible effect of the normativity of principles of the legal state and the rule of arbitrariness, in the same area and at the same time, on the one hand, and weakened confidence in the functionality of the judiciary, on the other, was very well clarified before the Human Rights Chamber in Case No. CH/96/28. In September 1995, that is, right before the adoption of the Dayton Agreement, troops of the Army of the Republic of BiH were advancing in the field, the consequence of which was that the Serbian civil population started moving from the affected areas. The applicant, who was of Bosniak origin, had to leave, along with his family, his apartment in Banja Luka, where he had lived as an occupancy right holder for almost 30 years. Namely, when three members of the reserve police arrived in front of his apartment and tried to force their entry, the applicant called the regular police in Banja Luka in order to protect him. Police arrived some time later, and, after interrogating the appellant, they left the apartment, and left the applicant’s family at the mercy of the reserve police members. The reserve police members gave the applicant’s family 5 minutes to leave the apartment. The same night an expelled person of Serbian origin moved into the apartment. For more than two years, which, mainly, related to the post-Dayton period, the applicant was unable to repossess the abandoned apartment. The applicant fought against the unlawful conduct of the police and the occupation of the apartment by employing the conventional instruments of a legal state. In 1996 the applicant managed to obtain a legally binding court ruling on the eviction of the unlawful occupant. During that year the applicant tried 7 times to enforce the ruling in the presence of a court executor and police, and failed in so doing. Each attempt at eviction of the apartment was accompanied by a group of enraged people who were “protecting” the unlawful occupant. Despite failed attempts, the applicant still believed the competent authorities that they would enable him to exercise his right. However, each time the eviction was attempted the police would stage the situation such that it was “impossible” to execute the eviction. Even when the unlawful occupant gave possession of the apartment to another unlawful possessor with the aim that the eviction ruling would thereby cease to be legally effective, the applicant persisted in his trust in the legal state. Subsequently, in December 1996 he brought a legal action with the competent court against the new unlawful possessor of the apartment. The court did not take a decision on the legal action until November 1997 when the Human Rights Chamber issued its decision in the same case. Only following the decision by the Human Rights Chamber did the applicant manage to repossess the apartment at issue.