Property
Law in Republika Srpska
(Bosnia and Herzegovina)
October 1997
Table of Contents
Law on the Use of Abandoned Property
The Forced Migration Projects were established in 1994 within the Open Society Institute to monitor circumstances in order to give early warning of forced movements of people and to identify conditions that may cause dislocation; encourage early and effective humanitarian responses to migration emergencies; advocate the humane treatment of those unable to return; urge permanent solutions for those displaced; and promote measures that avert individuals’ need to flee.
The projects established a Legal Policy Task Force for the former Yugoslavia in 1995, comprised of lawyers from the region and international experts. The Legal Policy Task Force undertakes research and analysis of national laws and policies concerning protection and permanent solutions for displaced persons and refugees in the countries of the former Yugoslavia. Since 1996, the Task Force has focused attention on the work of the Commission for Real Property Claims of Displaced Persons and Refugees (“Commission”), established under Annex 7 of the Dayton Peace Agreement for Bosnia and Herzegovina.
This paper addresses property issues that are important in the repatriation of displaced persons and refugees. It examines legislation relating to property in the Republika Srpska (RS), one of the entities of Bosnia and Herzegovina, and analyzes the effectiveness and limitations of this legislation.
The principal author of the paper is Elena Popovi}, former coordinator of the Legal Policy Task Force for the former Yugoslavia. The paper was edited by Arthur C. Helton, Director of the Projects.
Ethnic cleansing was and remains the most insidious aspect of the war in Bosnia and Herzegovina. Often, ethnic cleansing involves murder, rape or arson. It is also achieved through the forced eviction of people from their houses and apartments, turning thousands into refugees or displaced persons. Some are simply left homeless in their own cities. Overcoming the legacy of forced evictions and finding solutions to tangled property disputes are among the most difficult tasks facing Bosnia and Herzegovina as it strives to rebuild. In addition, legislation adopted during the war remains in effect, and often serves as the basis for legitimizing the forced transfer of property rights. Even where court decisions reinstate original title, there are no available mechanisms to enforce court decisions. The result is that thousands continue to be denied their property rights, especially in cases in which Bosnians seek to return to Republika Srpska.
III. Law on the Use of Abandoned Property
The RS Law on the Use of Abandoned Property was adopted in February of 1996, after the signing of the Dayton Peace Agreement, expressly to accommodate refugees and displaced persons and to protect the property of those who had left (Article 1). It covers both real and movable property, private ownership and occupancy rights.
The Law provides that:
“Real and movable property that has been abandoned by their owners or by the holders of the right to use, are considered abandoned for the purposes of this law. Whether property is abandoned is to be ascertained in each particular case, during the making of inventory and registering of abandoned property.”
Abandoned property is protected and governed by the Republika Srpska through the Ministry for Refugees and Displaced Persons; Commission for Refugee Accommodation; and other unspecified republic and municipal bodies.
The Law considers as abandoned all real and movable property deserted by their owners or by the holders of the right to use. Whether particular property is abandoned “is to be ascertained in each particular case, during the making of inventory and registering of abandoned property.” This provision permits arbitrary application by the authorities, as it does not determine since when, or for how long, property must be abandoned before this presumption becomes effective. This is exacerbated by the absence of a procedure for declaring property abandoned. In addition, apart from stating that abandonment leads to a presumption, the Law does not specify any other criteria. Finally, unlike the Decree on Abandoned Property under Private Ownership, and the Law on Abandoned Apartments, i.e., corresponding laws in the Federation of Bosnia and Herzegovina, this law does not articulate any “justified” non-use of property.
The Law deprives an owner of his/her ownership rights simply because the owner has not been making active use of the property. Ownership rights, however, are absolute rights which grant an owner the right to use the property in the way s/he pleases, including the right not to use the property. The law also deprives a holder of occupancy rights of the rights over a socially owned apartment, while under the Occupancy Law a tenant would lose occupancy rights only if s/he did not continuously use the apartment for six months. While holders of occupancy rights had no ownership over apartments in a housing regime which is a relic of the previous socialist system, there are mitigating circumstances. The transition from a socialist economy to a more market-oriented system started in Bosnia and Herzegovina on the eve of the war. A component of the process was the privatization of state-owned living space. The outbreak of fighting halted this process, and thus prevented many from purchasing their apartments.
Abandoned property may be assigned for use for an indefinite period of time. A decision on the assignment is issued by the Commission for Refugee Accommodation, and may be appealed to the Ministry. Such property may be assigned exclusively to refugees, displaced persons, and those who became homeless in the course of the war, in the following order of precedence: families of killed solders, war veterans, and certain professionals. The Law on Amending the Law on the Use of Abandoned Property added another category to the list of prioritized displaced persons: holders of high state honors, members of the Parliament of the Republika Srpska, and other dignitaries of the Republika Srpska, provided they are refugees or displaced persons.
In addition, Article 17 allows for allocation of shelter to refugees, displaced persons and homeless people in apartments and other buildings with more than 15 square meters of “surplus living space” per member of the household, until adequate accommodation is provided. The first households to host refugees on this basis are those with owners or users who have not fulfilled their military or labor duties, or where members of the household of an owner or user have left the territory of the Republika Srpska.
This provision effectively punishes those not considered “patriotic”. The Law does not specify what is meant by “having left the RS,” and therefore creates yet another avenue for arbitrary application. This purpose could cover a wide variety of cases, including individuals who had legitimate reason to leave, such as to seek medical treatment. It could include those who left for a short period, such as those who went to visit family members in other regions.
The arbitrary application of this provision has resulted in several illegal evictions which have been carried out informally by refugees and displaced persons who had been accommodated in such households. Even where authorities ordered the interlopers out, they generally would not reinstall the original inhabitants.
III. 3. Repossession of Property
The Law regulates the rights of the original owner only after his/her permanent return. The condition of permanent return again unduly limits ownership rights, which, of course, include the right not to use the property at all.
According to Article 39, a returning owner has the right to have his/her property restored or to receive compensation, in accordance with the settlement between the Republika Srpska, on one side, and the Federation of Bosnia and Herzegovina, or the Republic of Croatia, on the other. The property should be restored within 15 days upon the owner’s return, unless it has been assigned for temporary use. In the latter case, longer terms are foreseen: - 30 days after a temporary beneficiary returns to his/her property; or - 60 days from the payment of compensation for property the temporary beneficiary deserted and for possible expenses s/he incurred in the course of using the property in question.
These conditions on restoration further limit ownership rights, imposing restrictions that are clearly beyond an owner’s influence, i.e., the willingness and ability of the temporary beneficiary to return to his/her property, and willingness of the appropriate governmental actor to restore or compensate the property of the temporary beneficiary.
Furthermore, the return of property is conditioned on reciprocity. Namely, Article 42 permits exceptions from the provision on restoration of property if similar regulations do not exist in the Federation or in Croatia.
Although Article 39 refers to a “user” as well, this article does not address the restoration of property to a holder of occupancy rights. This omission could prevent thousands of displaced persons from returning to the Republika Srpska.
Article 49 makes null and void all contracts on rental, usage, or possession of real property concluded after 6 April 1992 between the holder of the right to property and another person. In addition, the Law bans disposal of ownership via proxy by persons who left the Republika Srpska after the same date. Those who abandoned their property in the Federation of Bosnia and Herzegovina, the other entity, or elsewhere in the former Yugoslavia (presumably ethnic Serbs), may exchange real property for property in the RS whose owners are in actual possession of their property, provided approval of the competent governmental body is secured. This provision may encourage relocation of the few remaining Muslims and Croats in the RS, who would eventually trade the property to leave for the territory controlled by their respective ethnic group, i.e., the Federation.
The law has in effect “suspended” occupancy rights. Article 1 implies that property under the occupancy regime is covered by the Law. However, the Law does not even use the specific term “occupancy rights”, but rather refers to holders of these rights as simply “users.” There is no provision in the Law to address specifically the legal interests of holders of occupancy rights while their property is assigned to someone else, or upon their return. Moreover, Article 59 excludes the application of other laws and regulations concerning occupancy law in general, irrespective of the lack of circumstances which would lead to the application of this law. As a result, because of vagueness and contradictions in the law, thousands of people are unable to receive swift and clear decisions in property disputes.
A law that would comprehensively regulate the issue of housing, including purchase of the apartments, was prepared in June of 1994 and accepted by the Government as an official proposal. Reportedly, it has been adopted by the Parliament but has never been published in the Official Gazette of the Republika Srpska, nor has it entered into force.
The provisions analyzed above clearly violate the basic principles of Annex 7 to the Dayton Agreement, as they infringe upon the right to return. They also run afoul of the Agreement’s section concerning the repeal of legislation and administrative practices that are discriminatory in intent or effect as they favor ethnic majority. Furthermore, they are contrary to the Constitution of Bosnia and Herzegovina and the European Convention for the Protection of Human Rights, which has become an integral part of the Bosnian legal system and “shall have priority over all other law.” Finally, the Law contradicts principles of vested rights and legal certainty well rooted in the European legal tradition.
As long as the Law remains in effect, the Commission for Real Property Claims of Displaced Persons established under Annex 7 to the Dayton Peace Agreement should discharge its mandated functions in conformity with the overall objectives of the Agreement. The Commission should give appropriate consideration to the importance of achieving just solutions for all displaced persons and refugees affected by the conflict in Bosnia and Herzegovina, without regard to the offending provisions of the property laws of Republika Srpska.
1) The Law on the Use of Abandoned Property should be revised or repealed. The law not only serves as an obstacle to repatriation of refugees and displaced persons, but it also represents “domestic legislation and administrative practices with discriminatory intent or effect” contrary to the Dayton Peace Agreement. Until such measures are undertaken, all economic aid, in particular assistance for housing reconstruction, should be suspended.
2) Thousands of apartments in the Republika Srpska and elsewhere in Bosnia and Herzegovina are still governed by occupancy law. Although a relic of the previous socialist regime, these apartments may offer the only housing to which many refugees and displaced persons can return. Therefore, the Republika Srpska, as well as the institutions established by the Dayton Peace Agreement, including the Commission, should address the issue on a priority basis.