Disputes on occupancy right and other rights to possession

Pursuant to legal regulations, which were adopted immediately after the war, oftentimes in a manner which was not completely transparent and accessible to all, the pre-war occupancy rights holders were given a rather short time limit (7-14 days) to file claims for repossession of their apartments, which had been abandoned during the war. As a result of a failure to file an appropriate claim, many apartments were declared “permanently abandoned”, so that the previous occupancy rights holders lost all rights to their respective apartments, which were, most often, allocated to third persons (oftentimes displaced persons or senior military personnel).²³⁶⁰ In 1998, under the auspices of the international community, the legal situation was completely changed and all legal acts which had been enacted on the basis of regulations on abandoned apartments were declared null and void retroactively. Unfortunately, the Chamber still continued to tackle the mentioned problem area, as there were situations where two claims were filed for one and the same apartment, i.e., the pre-war occupancy right holders filed a claim on the one hand, and the “post-war” occupancy right holders or temporary occupants did so as well, on the other. The consequence was such that the pre-war occupancy right holders encountered great difficulties and long delays in recovering possession over their pre-war apartments. Very often the reason for it– which became irrelevant following the adoption of new legislation – was that the temporary occupants, allegedly or in reality, had no alternative accommodation whatsoever at their disposal,²³⁶¹ or that their pre- war apartments were still being occupied by third persons.²³⁶² Therefore, a lack of alternative accommodation constituted one of the largest problems in the implementation of the process of return.

For that reason precisely, in accordance with the standards of human rights and freedoms,²³⁶³ the legislature adopted new legislation allowing the eviction of temporary occupants from apartments even in such cases where the goal was not for apartments to be returned to the pre-war occupancy right holders, but to list them among apartments intended for alternative accommodation, i.e., to put them at the disposal of third persons, if a temporary occupant was able to get alternative accommodations for themselves.²³⁶⁴ In order for the process of return not to be prevented or endangered, all temporary occupants were denied temporary legal protection against rulings on eviction.²³⁶⁵ In other words, an appeal against the first instance ruling did not have a suspending effect. In some cases the competent authorities proved to be so “consistent” as to evict people occupying apartments lawfully, for instance, on the basis of a contract on the lease of an apartment or a ruling on the allocation of an apartment.²³⁶⁶ There were times when apartment occupants (filing applications with the Human Rights Chamber) were threatened with eviction,²³⁶⁷ or eviction was actually enforced,²³⁶⁸ whereby the fact that the Human Rights Chamber had issued a temporary measure prohibiting eviction was not complied with (which happened indeed on at least one occasion).²³⁶⁹ Proving as an especially difficult problem area to deal with in practice were the cases where courts had to balance the interests, on the one hand, of the pre-war owners or occupancy rights holders, and, on the other hand, of temporary owners or occupancy rights holders when it comes to property which had been exchanged or sold during the war. Relevant legislation had to be improved on several occasions. Courts were in “deep trouble”, for, in certain cases, legislation stipulated conduct contrary to the principle of the legal validity of legal acts, or stipulated very detailed mechanisms of protection against the enforcement of eviction rulings. Since Annex 7 to the Dayton Peace Agreement did not stipulate ex lege the nullity of a contract on the sale or exchange of real property during the war,²³⁷⁰ but allowed instead for a possibility to challenge before a court the legal presumption of entering into a contract with a defective intention (threat and coercion), it was necessary to clarify whether both parties to the proceedings had entered into a contract of their own free will. The CRPC limited itself – as stated in the text above – to determining conscientious possession, that is ownership as of 1 April 1992. This means that a date, which the parties should not consider disputable, was selected. The CRPC would leave domestic courts with the decision-making on the crucial issue relating to the validity of a subsequently concluded contract on the purchase and sale or exchange of real property.²³⁷¹ Thereby, the enforcement of the CRPC decision was the rule. In exceptional circumstances, a damaged person could file a claim with the CRPC in order for the enforcement of the decision to be delayed pending the completion of court proceedings related to the validity of a contract on the purchase and sale or exchange, solely if allowed by the CRPC.²³⁷² For this to happen, the new owner had to file a claim and attach thereto a contract on exchange or purchase and sale, and prove that he would suffer irreparable damage if the enforcement of a CRPC decision was not postponed. Therefore, the domestic courts were not authorised to allow, without exclusive order by the CRPC, the postponement of the enforcement of a CRPC decision.²³⁷³ Thereby, the necessary cooperation between domestic administrative authorities and courts, on one hand, and the CRPC, on the other, was not well-functioning, mainly because the domestic authorities were not familiar with the relevant regulations or practice. Despite the fact that the applicant managed to obtain a legally binding judgment in his favour and that he was registered in a land book as an owner,²³⁷⁴ or that an appropriate judicial dispute was under way,²³⁷⁵ there were instances where domestic courts “blindly” enforced an eviction ruling, issued on the basis of a CRPC decision, without issuing beforehand the decision on temporary court protection that was being sought. The Human Rights Chamber considered such deficiency or denial of legal protection to be a violation of the right to property, as well as a violation of the right to an effective legal remedy.²³⁷⁶ Also, unequal treatment of legal holders of a CRPC decision and those who had not obtained such a decision (as yet) was, in the opinion of the Human Rights Chamber, unjustified, precisely for the – above mentioned – reasons whereby the situation concerning ownership was undisputable as at the relevant date (1 April 1992).²³⁷⁷