Legal acts of the Commission for Real Property Claims (Commission for Real Property Claims – Annex 7 to the GFAP)

The CRPC is a body which decided on the claims for restitution of real property, including the possession over real property with occupancy rights in Bosnia and Herzegovina. The restitution was related to the cases in which such property, effective as of 1 April 1992, had not been voluntarily sold or transferred onto another person in some other way, and the applicant had not been in possession of the respective property at the time of decision-making (compare with Article XI of Annex 7). The CRPC was making decisions on the basis of certain available evidence (primarily, on the basis of the land registry excerpts and the contracts on occupancy rights), and was not carrying out investigations or disputes related to the opposing parties.³⁴⁷³ The CRPC particularly did not tackle the issues as to whether some presented contract was legally valid, or whether property or an occupancy right for which restitution was sought had been transferred to another person after 1 April 1992. Therefore, the scope of examination and the force of the decision-making of the CRPC were limited. Given a very large number of procedures, that is the ongoing cases which were to be decided on,³⁴⁷⁴ more extensive substantive and legal control was in no terms possible. In order to solve the issues that the CRPC had no competence over, the damaged person had to address the competent domestic authorities. While assessing the situation in relation to ownership, the CRPC did not recognise any unlawful transfers of property, including those where the owner consented to do so under duress in order to obtain a permit to leave or documents, or those that occurred in some other form as part of ethnic cleansing (Article XII 3 of Annex 7).

The CRPC cannot, according to its own assessment, choose between restitution and damages, but, to this end, the claim of a person is obligatory (compare with Article XII.2 of Annex 7). If the CRPC, based on available evidence, concluded that the right to restitution existed (and if the plaintiff requested restitution), then an appropriate enforcement document is to be issued. The person whose right was recognised would, as a matter of fact, face true problems just then. For, the enforcement document issued by the CRPC must be executed with the assistance of a competent domestic authority, which in practice proved very difficult – with either delays occurring, or the proceeding as a whole proved unsuccessful.³⁴⁷⁵ Administrative authorities were obliged, upon a request, to issue some sort of a conclusion permitting the enforcement. In the event that someone wishes to object to the decision on the restitution of property, the Law on Enforcement of Decisions of the Commission for Real Property Claims of Displaced Persons and Refugees provides for two procedures, depending on whether the legal interest of a complainant, which is being raised in order to stop the enforcement of the CRPC decisions, had existed at the time of the “relevant date” (1 April 1992), or it had come into being only thereafter. In the former case, which does not rule out a possibility that the very decision of the CRPC was erroneous, the CRPC (and the CRPC only) reviews its earlier decision (reconsideration) and, possibly, quashes it (the procedure of submitting a request for review). During the course of the procedure of review, the administrative authority shall temporarily postpone the enforcement, only if receiving an official notice from the CRPC (Article 11 in conjunction with Article 10, paragraph 1 of the Law on Enforcement of Decisions of the Commission for Real Property Claims of Displaced Persons and Refugees). In the latter case, (occurrence of the legal interest after the relevant date), thereby, in the event when the CRPC decision cannot be erroneous per definitionem (what is relevant here is the existence of the right of the relevant date), there is no possibility to review the CRPC decision, which, accordingly, remains unmodified. However, the damaged person may only challenge the decision on enforcement before administrative authorities. To resolve the issue whether the disputed right to property was, in the meantime (that is since 1 April 1992 and onwards), lawfully and voluntarily transferred onto another person, the administrative authority shall refer the case for a proceeding before a competent court. At the same time, throughout the entire period of the war there existed a refutable legal presumption about the forcible/unlawful transfer of the property right, and if anyone claims otherwise, he/she must prove so. Next, the court shall decide whether the damaged person has successfully challenged the presumption on forcible transfer and, possibly, resorts to necessary measures in order to reinstate a lawful property situation.³⁴⁷⁶ As a rule, the judicial proceeding does not defer the enforcement, and thus it stays the course. The enforcement, however, may be deferred by the court which received the case for deliberations, if a contract on the right transfer had been entered into and verified after 14 December 1995.³⁴⁷⁷

This legal situation, which is already complex in itself, has additionally been complicated by the Law on Cessation of the Application of the Law on Abandoned Real Property, which is also applicable to the respective cases. Therefore, there are two legal ways for the restitution of property: Annex 7 and the Law on Enforcement of Decisions of the Commission for Real Property Claims of Displaced Persons and Refugees regulate the procedure which is concurrent with the one conducted before the State bodies for the restitution of property under the Law on Cessation of the Application of the Law on Abandoned Real Property. Which procedure gets to be applied shall depend solely on the choice of the damaged person. A person addressing the CRPC in accordance with Annex 7 and the Law on Enforcement of Decisions of the Commission for Real Property Claims of Displaced Persons and Refugees shall have a certain priority, as the enforcement of the CRPC decisions cannot be halted by any legal instrument whatsoever.³⁴⁷⁸ Institution of a proceeding before a domestic body, pursuant to the Law on Cessation of the Application of the Law on Abandoned Real Property, does not prevent the party from instituting a procedure before the CRPC at the same time. In order to prevent double or even contradictory decisions in the same case, in case of instituting a procedure before the CRPC, a proceeding before a domestic body must be terminated irrespective of the stage it was at.³⁴⁷⁹ In practice this parallelism has brought about great legal uncertainty. Oftentimes the parties had conducted concurrently both proceedings for years, including enforcement proceedings in both concurrent procedures.³⁴⁸⁰

On 31 December 2003, the international CRPC had completed its mandate, and its competence, in accordance with Article XVI of Annex 7 was transferred to Bosnia and Herzegovina, Federation of BiH and the Republika Srpska.³⁴⁸¹ In practice it meant that the Commission was now made up of national members solely and that it was tasked to decide the existing, already filed requests for the review of the first-instance decisions of the CRPC (reconsideration). Therefore, a body at the State level assumed responsibility for the pending cases, that is appeals, and the entities were entrusted with a task to resolve the cases regarding the pending first-instance requests. That is the reason why the Federation of BiH enacted the Law on Transfer and Resolution of Pending Requests for the Repossession of Apartments with Occupancy Right or of Owned Real Property, which were Filed with the Commission for Real Property Claims of Displaced Persons and Refugees.³⁴⁸²