Bosnia and Herzegovina: Book of Regulations on the Conditions and Decision Making Procedure for Claims for Return of Real Property of Displaced Persons and Refugees
I GENERAL PROVISIONS
This Book of Regulations regulates the conditions and decision making on claims for the return of real property of displaced persons and refugees and other persons with a legal interest in order to confirm rights to real property which is not in their possession.
This Book of Regulations governs the terms and the procedure for:
a. the submission and registration of claims;
b. the selection of evidence relevant for decision making;
c. the decision making on claims;
d. the legal effectiveness, delivery and publication of decisions;
e. the correction and reconsideration of decisions;
f. the enforcement of decisions and the supervision of enforcement; and
g. other issues relevant for decision making on claims for return, or for compensation in lieu of return of real property.
All documents on the organizational structure of the Executive Office of the Commission ("the Executive Office") and other offices of the Commission in Bosnia and Herzegovina and abroad, financial plans and other documents and plans of the Commission related to the financing, organization and management of the Commission offices will be adjusted in accordance with this Book of Regulations.
The components of the Book of Regulations are:
a) the claim form for submission of claims for return of real property;
b) decisions on the organization of the Executive office and other offices of the Commission in BiH and abroad; and
c) the forms of decisions on claims for real property.
The Executive Officer of the Commission is responsible for the implementation of the Book of Regulations.
II SUBMISSION AND RECEPTION OF CLAIMS
A. Information on claim submission
Claimants will be informed through the Executive Office and other offices of the Commission of how to register claims and to complete the claim form.
Potential claimants will receive information in the Commission offices orally or through written instructions, by media, by distribution of pamphlets, by direct participation of the Commissioners, the Executive Officer and other authorized persons in radio and TV programs or at meetings with representatives of potential claimants and in other appropriate ways.
B. Submission of claims
A claim for return of real property ("a claim") is submitted by persons who, in accordance with the Book of Regulations, have a right to submit a claim, or by their representatives.
A claim is submitted on the form provided.
Persons authorized to submit a claim are:
a. displaced persons;
b. refugees; and
c. other natural persons with a legal interest in the claimed real property .
Socially or state owned real property may not be the subject of the claim except in the case of city construction land.
It is presumed that persons who submit claims are not in possession of the claimed real property.
Displaced persons and refugees, are not required to prove their status at the time of registering a claim. The status of these persons is presumed.
It is considered that the claimant has legal interest to submit the claim if he or she is in a family or civil law relationship with the person who was the right holder to the claimed real properties as of 01/04/1992.
The types and degrees of family relationship referred to in the previous paragraph as well as the evidence establishing the family and civil law relationship shall be specified by a special instruction.
Claims may be submitted by authorized representatives of the persons mentioned under Article 10 of the Book of Regulations.
An authorised representative must present a valid power of attorney when submitting a claim.
A valid power of attorney is one given by a person who is entitled to submit a claim and which is verified by the authorized bodies of the Entities, or diplomatic/consular offices of Bosnia and Herzegovina, or by the authorized bodies of the countries where a claimant has temporary or permanent residence.
The claimant should attach any available evidence proving his or her rights to the claimed real property.
A claim may also be submitted when the claimant does not present any evidence, because it is not available to him.
Evidence on the claimant's identity and power of attorney for the claim submission are to be presented as original documents.
Evidence on rights to real property may be presented as original documents or verified copies.
An authorized staff member at the Commission office will examine the documents, make copies and attach the copies to the claim form.
C. Registration of claims
Registration of claims is conducted in the offices of the Commission, established within the territory of Bosnia and Herzegovina or abroad.
Claims registration may occasionally be conducted outside the offices, in a manner approved by the Executive Officer.
The Commission may entrust claims registration abroad to an international or non-governmental organization under terms agreed between the Commission and theoganization.
The scope, work organization, location and order of the establishment of these offices will be specified by special resolution of the Commission.
Claims registration is conducted by authorized staff members of the Commission within working hours determined by the Executive Officer.
Before claims registration takes place, an authorized staff member is obliged to inform the potential claimant as to how to submit a claim, about evidence and other information relevant for submitting a claim. The authorized staff member is also obliged to ensure that the potential claimant has expressed his free will regarding the disposal of the claimed real property.
Incomplete claims shall not be registered.
In case an incomplete claim has been registered, it shall be supplemented or refused.
The claim is considered to be incomplete if it does not contain:
- data on the claimant;
- data on the claimed real property;
- valid power of attorney.
Provisions related to supplementing or refusing the claim, as well as requirements for a claim to be considered complete, shall be specified in a special instruction.
The Head of the Office and the staff members responsible for claims registration shall ensure that claims are registered correctly.
After the claim is received, an authorised staff member of the office enters the data registered on the claim form in the appropriate computer software. After two copies are printed, the claimant signs both copies and retains one for himself.
Any deficiency in the evidence concerning the claimant's identity or the identification of the real property must be corrected by the claimant.
The registered claim is retained in the file of the claimant opened in the office where the claim was submitted.
The claimant's file should include:
a) the signed printed form of the submitted claim;
b) a power of attorney, in the case when the claim is submitted through the authorized representative;
c) copies of all evidence.
The claimant may amend the claim, supplement the claim with further evidence or withdraw the claim or part of the claim at any time until the decision is adopted.
The withdrawal of a claim shall be explicit, in written form and signed by the claimant.
In the above mentioned cases, the Regional Office must inform the Executive Office without delay.
III PROCEDURE FOR COLLECTION AND VERIFICATION OF EVIDENCE RELEVANT FOR DECIDING CLAIMS FOR RETURN OF REAL PROPERTY
Evidence relevant for deciding claims for return of real property should be presented to the Commission by claimants if available to them.
If no relevant evidence is available to a claimant or if the evidence presented by the claimant is of doubtful credibility, the Commission will initiate evidence collection or evidence verification procedures.
The Commission may conduct evidence collection or evidence verification through the Executive Office, its regional offices or through an international or non-governmental organization.
The Commission will adopt a special decision to conduct the collection or verification of evidence through a particular international or non-governmental organization.
The decision under the previous paragraph will contain all the essential elements of a contract on agency or a contract on donation.
If the Commission decides to conduct evidence collection and verification directly, it will be conducted through the Executive Office or, upon instruction by the Executive Office, through the regional office responsible for the area where the claimed real property is located, as well as through the office responsible for the area where there are bodies or services holding records on real property, whether concerning ownership or lawful possession.
The office registering a claim will co-operate with the offices mentioned in the previous paragraph.
Evidence will be collected and verified at the offices of bodies and services where the records on real property, owners and possessors are kept (first instance courts, municipal administrative bodies and all other bodies and services whose records may be used as evidence.)
Evidence may be collected and verified in other suitable ways, subject to approval by the Commission.
These offices will co-operate through the Executive Office.
Other offices cannot undertake any activities concerning collection and verification of evidence without obtaining the approval of the Executive Office.
The Executive Office may order other offices to conduct collection and verification of evidence, if it is considered necessary.
The Commission will consider all types of evidence with the aim of establishing the state of facts.
IV DECIDING CLAIMS FOR RETURN OF REAL PROPERTY (ownership right, lawful possession, annulment of contracts on transfer of real property)
The types of evidence for confirming an ownership right are:
1. property book extracts confirming an ownership right to the claimed real property, with the situation as of 01.04.1992 ; or
2. real property cadaster extracts confirming an ownership right to the claimed real property with the situation as of 01.04.1992 for cadaster municipalities where the real property cadaster came into effect prior to 1.4.1992 by the decision of the competent authority;
3. real property cadaster extracts confirming ownership to the claimed real property, issued after 01.04.1992, for areas where the real property cadaster has not entered into force or where it entered into force after 01.04.1992, provided that the competent authority has confirmed that the recorded status is identical to the status as of 01.04.1992.
For municipalities where the Property Book is not in existence, the types of evidence for confirming an ownership right are:
1. property book extracts issued before 01.04.1992; or
2. court decisions allowing the presentation of documents with the aim of acquiring ownership over the claimed real property; or
3. legally valid contracts of sale or legally valid gift contracts of the claimed real property concluded prior to 1.4.1992, if the person who acquired rights to the claimed real property is found to be registered in the cadastral records valid for 1.4.1992; or
4. legally valid contract on transfer of real property from social ownership concluded before 01.04.1992. if the buyer of the claimed real property is found to be registered in the cadastral records valid for 01.04.1992.; or
5. inheritance decisions, made prior to 1.4.1992, which include the clause of validity; or
6. court decisions on ownership rights to the claimed real property, made prior to 1.4.1992, which include the clause of validity; or
7. valid decisions made before 1.4.1992 in administrative procedures on the basis of which agrarian based ownership (usurpation, redistribution of land, redistribution of fields and others) is acquired.
The types of evidence for confirming lawful possession are:
1. cadastral records (transcript of the possession document) for the claimed real property which indicate the state of facts on 1.4.1992;
2. In cases where the evidence referred to in the previous paragraph is not available, lawful possession may be confirmed on the basis of the following:
3. building permits issued prior to 1.4.1992;or
4. usage permits issued prior to 1.4.1992; or
5. urbanistic agreement issued prior to 01.04.1992. for reconstruction, additional building and other works on objects that already exist as well as for legalisation of objects which were built without a building permit; or
6. contracts on current maintenance of joint premises concluded prior to 1.4.1992 in the building where, according to the statement of the claimant, there is ownership by floors of an apartment; or
7. decisions on presentation of real property and determining right to the real property, issued prior to 1.4.1992, for cadastral municipalities for which the real property cadaster did not come into effect prior to 1.4.1992; or
8. court decisions on inheritance prior to 1.4.1992, with or without the clause of validity; or
9. other court decisions establishing the right to real property prior to 1.4.1992, with or without the clause of validity; or
10. decisions made prior to 1.4.1992 in administrative procedures on the basis of which agrarian based ownership (usurpation, redistribution of land, redistribution of fields and others) is acquired; or
11. decisions of administrative organs related to the claimed real property, made before 1.4.1992; or
12. property book extracts issued before 1.4.1992, confirming the right of use of the claimed city construction land; or
13. legally valid contracts on sale or legally valid contracts on gift of the claimed real property concluded prior to 1.4.1992;or
14. legally valid contract on transfer of the claimed real property from social ownership, concluded prior to 01.04.1992; or
15. records on payment of tax on transfer of real property, income tax from real property, or tax on real property itself and other taxes; or
16. copies of possession lists related to the claimed real property issued prior to 1.4.1992; or
17. copies of cadastral plans with complete data on the real properties and their users issued prior to 1.4.1992.
18. real property cadaster extracts confirming the right to use city construction land, issued after 01.04.1992, for areas where the real property cadaster has not entered into force or where it entered into force after 01.04.1992, provided that the competent authority has confirmed that the recorded status is identical to the status as of 01.04.1992
19. copy of possession list referring to the claimed real property issued after 01.04.1992. which, in combination with other evidence, confirms that the claimant was lawful possessor of the claimed real property on 01.04.1992.
A contract is considered legally valid, for the purpose of Articles 42 and 43 of this Book of Regulations, if it has been concluded in written form and if the signatures of contractors have been verified at the competent court.
As an exception, the verification of signatures of contractors at the competent court is not a condition for the validity of the contract on transfer of real property from social ownership.
In individual cases, the Commission will evaluate the validity of any other evidence which is not included in Articles 42, 43 and 44 .
The Commission shall establish a separate procedure for claims which do not contain the evidence stipulated in Articles 42 and 43 of this book of Regulations, or for claims which contain evidence which is not sufficient for the confirmation of rights..
If the attached evidence contains a deficiency which prevents the Commission from rendering a decision and only the claimant is authorized to initiate the appropriate procedure for remedying the deficiency, the claimant will be informed through the Regional Office of the need to remedy the deficiency.
Where a claimant has presented evidence containing formal or other deficiencies which renders the evidence unacceptable for the confirmation of an ownership right or right to lawful possession, the Executive Office may:
a. have regard to other evidence referring to the same real property; or
b. try to obtain further evidence in accordance with Articles 34 and 35; or
c. invite the claimant, through the Regional Office, to supplement the claim with valid evidence or to provide precise information as to the availability or location of the required evidence.
The evidence listed in Articles 42, 43 and 44 of this Book of Regulations may be accepted from any authority in Bosnia and Herzegovina or the Entities:
a. which was competent to issue such a document at the time when it was issued; or
b. which keeps relevant records on real properties and other data which it was competent to issue prior to 1 April 1992.
When no evidence proving a right to the claimed real property is submitted with the claim, and the Commission obtains evidence on lawful possession or ownership, the decision may be rendered on the basis of such evidence.
B. DECISION MAKING PROCEDURE
The Regional Offices will forward all claims to the Executive Office with photocopies of all evidence.
The Executive Office - Legal Department is competent for the preparation of draft decisions upon the claims submitted.
The Legal Working Group shall consider the prepared draft decisions and confirms the decision proposals.
The procedure for preparation of draft decisions shall be regulated by a special instruction issued by the Executive Director upon the proposal of directors of departments that participate in the preparation of draft decisions.
The Executive Office reviews the claims through its expert staff, and assesses the evidence which is the basis of the draft decision. .
After reviewing the claim, the Executive Office prepares the draft decision.
The Executive Office may propose to the Commission a decision by which the claim is:
a. refused as inadmissible; or
b. adopted; or
The Legal Working Group will regularly review draft decisions to ensure that they are in accordance with this Book of Regulations.
After reviewing draft decisions, the Legal Working Group confirms decision proposals and presents them to the Commission for consideration and decision making.
The Commission decides on the decision proposals in plenary session.
The Commission will make decisions on claims for return of real property based on the proposal of the Executive Office.
While considering decision proposals, the Commission may:
a. completely accept the decision proposals; or
b. partly change or amend the decision proposals; or
c. send the proposal back for supplementing.
In principle, the Commission shall decide upon the claim as a whole. If only evidence for a part of the claimed real property is available to the Commission, the Commission may decide only upon that part.
In the case referred to in the previous paragraph, the Commission shall issue a new decision for the real properties for which it subsequently obtains evidence.
Every individual decision contains:
a. the title of the Commission
b. the date and place of adoption
c. the introduction
d. the dispositive
e. the legal remedy
e) the signatures of the authorized persons.
The Chairperson and one other authorized person will sign individual decisions.
Individual decisions adopted by the Commission shall be issued in the form of a Certificate. Each Certificate shall have a serial number and shall be verified with a dry stamp.
Individual Decisions of the Commission shall:
a. confirm rights on behalf of the person who is found to be registered as right holder to the claimed real property on 01.04.1992;
b. enable the right holder, his or her heirs and other persons to whom that right was transferred after 01.04.1992. in accordance with the Law on Inheritance or a legal business concluded by free will of the participants, to enter into possession of the designated real properties upon the presentation of the decision, within 60 days from the day when the request is submitted to the competent authority;
c. oblige the competent judicial and municipal administrative bodies to bring the persons referred to in paragraph b) of this Article, at their request, into possession of the designated real properties upon the presentation of the decision, within 60 days from the day when the request is submitted, and to make the relevant changes in real property records;
d. enable the persons referred to in paragraph b) of this Article to transfer their rights to the claimed real properties to other natural and legal persons, in accordance with the law, and Article XII of Annex 7 of the Dayton Peace Agreement;
e. enable the claimant or other individual with legal interest in the designated real property to file a reconsideration request within 60 days from the day they learn of the new evidence which may materially affect the decision;
f. make ineffective all legal acts passed by competent BiH or Entity administrative or judicial bodies after 01.04.1992 which cancelled or restricted the legal rights to the designated real property of the persons referred to in paragraph b) of this Article and all legal transactions concluded after 01.04.1992. without the free will of those persons, which gave rise to a change in the legal or factual status of the designated real property.
V SPECIAL PROCEDURE FOR DECIDING CLAIMS FOR RETURN OF REAL PROPERTY, CONFIRMING AN OWNERSHIP RIGHT TO REAL PROPERTY, AND ACQUIRING THE RIGHT TO JUST COMPENSATION IN LIEU OF RETURN TO PROPERTY
Just compensation may be awarded, when the means become available, to the person who chooses that option instead of repossession of the property, if the Commission establishes that he/she is the legitimate owner of that property.
The Commission shall establish fixed fees which shall be the basis for valuation of the real properties for which the just compensation is claimed.
VI LEGAL EFFECTIVENESS, DELIVERY AND PUBLICATION OF INDIVIDUAL DECISIONS ON RETURN OF REAL PROPERTY
Individual decisions on claims for return of real property, or for just compensation in lieu of return, will become final and binding as of the day they are adopted.
Individual decisions on claims for return of real property made by the Commission will be delivered through the Regional Offices to the claimant in person, and if the claimant has an authorized representative, the decision will be delivered to the representative.
If it is not possible to deliver individual decision to the claimant, a verified copy of the certificate shall be delivered upon his or her request to every person who is able to prove his/her legal interest as provided by this Book of Regulations.
In the case described in the previous paragraph, the original certificate shall be kept in the Executive Office.
If the claimant changes residential address after submitting the claim, he or she is obliged to notify the Office where the claim was submitted.
If the claimant does not inform the office about the change of the address, the delivery of the decision will be performed through the main notice board of the office.
In the case referred to in paragraph 2 of the previous Article, it is considered that the delivery is conducted when eight days pass after the decision has been placed on the main notice board.
Summaries of individual decisions of the Commission may be published in the Official Gazette of Bosnia and Herzegovina, and in the Official Gazettes of the Federation of Bosnia and Herzegovina and Republika Srpska. The failure topublish the decision shall not affect its final and binding nature.
The summary of an individual decision shall contain:
a. number of the decision;
b. property description and
c. information on the holder of the right to the real property.
VII CORRECTION OF ERRORS IN DECISIONS
The Commission shall correct any errors in names and numbers and any other obvious mistakes in the decision certificate, as well as discrepancies between a transcript of the certificate and the original certificate.
The Commission may make the correction referred to in article 71 at the request of the claimant, or of its own initiative.
In order to correct such errors, the Commission shall issue a separate decision on correction.
VIII RECONSIDERATION OF DECISIONS
The Commission may reconsider a decision if the claimant or any other person with a legal interest in the real property designated in the original decision, within 60 days of learning of new evidence which could materially affect the decision, presents such evidence to the Commission, or gives indications of the new evidence.
B) Submission of requests for reconsideration
A request for reconsideration may be submitted on the appropriate forms as designated by the Commission or in another written form that meets the requirements of Article 76.
The request for reconsideration contains:
i. the identification of the original decision, including its number and date;
ii. the reasons for submitting a request for reconsideration;
iii. the new evidence or indications of new evidence which may materially affect the decision;
iv. the date on which the requestor learned of the decision or of the new evidence;
v. the signature of the requestor.
The following person ("requestor") can submit a request:
a) the claimant;
b) any other person with a legal interest in the real property designated in the decision.
The requestor shall provide the Commission with all new evidence available to him.
C) Decision Making Procedure
The Commission shall consider the request for reconsideration, together with any further submissions or evidence provided.
If appropriate, the Commission may invite any party to provide further submissions or additional information in writing, or undertake further investigations as it sees fit.
The Commission will examine the request for reconsideration and any other available material as soon as practicable.
After examining the request for reconsideration, the Commission may:
a. refuse to admit the request as being inadmissible, not submitted within due time or as submitted by an unauthorised person;
b. reject the request as being unfounded;
c. accept the request, revoke its previous decision and issue a new certificate.
The decision of the Commission refusing or rejecting the reconsideration request shall be delivered to the requestor.
The decision of the Commission accepting the reconsideration request and revoking its previous decision shall be delivered to the requestor and all other persons who received the original decision.
The Commission's determination to revoke a previous decision certificate may be published in the Official Gazette of Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina and the Republika Srpska.
The failure to publish the decision shall not affect its final and binding nature.
IX DECISION ENFORCEMENT
The competent administrative and judicial authorities of the Entities and the municipality where the claimed real property is located are responsible for the enforcement of decisions, as well as the Commission offices when enforcing the Commission decisions on compensation, in lieu of return of the real property.
The Executive Office is obliged to arrange to monitor the enforcement of the decisions, and to inform the Commission by special report.
In order to assist with the monitoring of enforcement, summaries of decisions will be distributed by the Executive Office every 30 days to:
a. The Office of the High Representative;
d. The Office of Ombudsman;
e. The Human Rights Chamber
X TRANSITIONAL AND CLOSING PROVISIONS
Any procedural matters not regulated by this Book of Regulations will be regulated by the provision of the Law on Civil Procedure.
This Book of Regulations, drafted in Bosnian, Croatian, Serbian and English, becomes effective on March 4, 1999, and may be published in the Official Gazette of Bosnia and Herzegovina and the Official Gazettes of the Entities.
CRPC reserves the right to give authentic interpretation of the provisions of this Book of Regulations.
The Provisions of Article 42, 43 and 44 of this Book of Regulations will be applied from January 1, 1997. The provisions of Article 13 will be applied to all claims registered since 1 July 1998.
All normative and other documents which are a constitutive part of this Book of Regulations shall be coordinated with this Book of Regulations within 30 days from the day the Book of Regulations has become effective.
The Book of Regulations on the Conditions and Decision-Making Procedure for Claims for Return of Real Property of Displaced Persons and Refugees (Consolidated version as of November 12, 1998) shall become ineffective by the entry into force of this Book of Regulations.
Sarajevo, March 4, 1999
Mr Jean Pierre HOCKE
This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.