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Max Planck Encyclopedia of International Procedural Law [MPEiPro]

Commission for Real Property Claims of Displaced Persons and Refugees

Hans van Houtte

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 11 July 2020

Subject(s):
Expulsion — Internally displaced persons — Ethnic cleansing — Forced transfers or displacement — Recognition and enforcement — Claims commissions — Refugees

Published under the direction of Hélène Ruiz Fabri, with the support of the Department of International Law and Dispute Resolution, under the auspices of the Max Planck Institute Luxembourg for Procedural Law.

A.  Disclaimer

1  Hans van Houtte was one of the International Members of the Commission for Real Property Claims of Displaced Persons and Refugees (‘CRPC’ or ‘Commission’) and was responsible for its legal affairs. The present verbum only binds himself in his personal capacity and does not bind and cannot be attributed to the CRPC.

B.  Introduction

2  The CRPC was a unique and efficient quasi-judicial body established to allocate property rights of displaced persons and refugees after the Bosnian War (1991–96) (see also Yugoslavia, Dissolution of), which had disrupted the whole country, the housing of its population included (see also Ethnic Cleansing and Forced Population Transfer). Within eight years of mass claims settlement, the CRPC had confirmed the ownership rights over some 320,000 dwellings and had put in place a legal framework to implement these ownership rights.

C.  Historical and Political Context

4  Three ethnic groups were present in Bosnia: Croats, Bosniaks, and Serbs. Each was distinguished by, inter alia, slight differences in the common Serbo-Croatian language and by their cultural and religious background—Croats were Catholic, Bosniaks were Muslim, and Serbs were Orthodox. None of these groups were living in outlined areas. Socialist Yugoslavia consciously promoted inter-ethnic integration. However, Croats were in the majority in the West around Mostar, Bosniaks in the Centre around Sarajevo, and Serbs in the North around Banja Luka as well as East around Srebrenica.

5  The military conflict which ravaged Bosnia and Herzegovina from 1992 until 1995 after the dissolution of the former Socialist Federal Republic of Yugoslavia and the so-called ‘ethnic cleansing’ forced hundreds of thousands of Bosniaks, Croats, and Serbs to seek shelter in the areas of Bosnia and Herzegovina where their ethnic group was a majority or to find refuge abroad. Moreover, almost a third of dwellings were destroyed by war or terrorist attacks. More than half of the pre-war population fled their homes. Buildings became scarce and those that were still habitable were often occupied by people other than the owners. Wartime legislation allowed municipal authorities to declare abandoned—and to allocate to others—any property that was vacated. In certain parts of the country minority owners were forced to sell their houses. At the end of the war, more than one million Bosnians remained internally displaced (Internally Displaced Persons (IDPs)) and at least one million more were living as refugees abroad, mainly in the neighbouring countries of former Yugoslavia. To prevent the eventual return of minorities, cadastre records and property books were destroyed, removed, or tampered with.

6  The General Framework Agreement for Peace in Bosnia and Herzegovina (‘Dayton Agreement’), which ended the war, was negotiated at the United States ('US') Air Force Base in Dayton, Ohio—hence its informal title. It consists of a Framework Agreement (‘Framework Agreement’) and 12 Annexes which together contain the substantial provisions of the peace plan. It was ultimately signed in Paris on 14 December 1995 by Bosnia-Herzegovina, the multinational State, and its two constituting entities, the Federation of Bosnia-Herzegovina and the Republika Srpska. The Framework Agreement moreover states that its signing has been ‘witnessed’ by co-signing representatives of the US, Russia Federation, United Kingdom, France, Germany, and the Special Negotiator of the European Union—who were also involved in the negotiations and add even more weight to its commitments. The Dayton Agreement is generally considered to be a treaty within the meaning of the Vienna Convention on the Law of Treaties (1969) and thus to be governed by international law, despite the fact that it was only signed by the Republic of Bosnia and Herzegovina as a State and by both the Federation and Republika Srpska as the two composing entities of the Republic. At the time when the Dayton Agreement was signed and the Republic of Bosnia and Herzegovina was being created, its constituent entities were deemed to have enjoyed international legal personality (Gaeta, 1996, 158–60).

7  The Dayton Agreement recognized the right of all refugees and displaced persons to freely return to their home of origin and to have their property rights restored. Article VII Framework Agreement confirms that ‘the protection of refugees and displaced persons are of vital importance in achieving a lasting peace’ and refers in this context to Annex 7 Dayton Agreement ('Annex 7'), titled ‘The Agreement on Refugees and Displaced Persons’, with which the signatories ‘shall comply fully’. Moreover, in Article VI Framework Agreement, the signatories also endorsed Annex 7. In fact, Annex 7 implements Article 14 draft Bosnian Constitution, which the Dayton Agreement had spelled out in its Annex 4. This draft Article 14, which ultimately became Article II.5 of the current Bosnian Constitution, in turn refers again to Annex 7 and reads: ‘All refugees and displaced persons have the right freely to return to their homes of origin. They have the right, in accordance with Annex 7 of the General Framework Agreement, to have restored to them property of which they were deprived in the course of the hostilities since 1991 and to be compensated for any such property that cannot be restored to them. Any commitment or statement relating to such property made under duress are null and void.’ Article 1 Annex 7 repeats the same Principles. In other words, both the Bosnian Constitution and Annex 7 make it clear that return is the primary objective. For the Parties to the Dayton Agreement, the restoration of peace would require bringing the ethnic division to an end by refurbishing multi-ethnic Bosnia. Compensation should only be considered as alternative when return proves impossible.

8  Annex 7 established the CRPC as the principal instrument to implement the right to return.

9  In line with the primary objective of return, the Chapter One Annex 7 specifies the entitlement and modalities of refugees and displaced persons to return to their homes of origin. It elaborates, for example, on choice of destination, repatriations assistance, safety, reintegration, and amnesty. Chapter Two Annex 7 spells out the creation and operation of the ‘Commission for Displaced Persons and Refugees’ ‘to decide any claim for real property in Bosnia and Herzegovina, where the property has not voluntarily been sold or otherwise transferred since April 1992 [outbreak of Bosnian war, HvH], and where the claimant does not now enjoy possession of that property.’ And again: ‘Claims may be for return of the property or for just compensation in lieu of return’.

10  As will be explained further, in fact the CRPC has neither directly ordered return, nor granted compensation. It has only recognized title to properties, leaving it to the holder of the title to implement this title in the manner the latter deemed appropriate.

D.  Establishment and Composition of the Commission

11  Article VII Annex 7 established the ‘Commission for Displaced Persons and Refugees’. However, the Human Rights Ombudsperson fiercely objected to the reference to ‘Displaced Persons and Refugees’ in the Commission’s name as the general protection of refugees and displaced persons fell within the competence of the human rights bodies, created by Annex 6 Dayton Agreement. Consequently, the Commission from the start renamed itself as the ‘Commission for Real Property Claims’ to better express its specific function.

12  The CRPC was to consist of nine members. Of these nine, two had to be appointed by Republika Srpska and four by the Federation, ie two each from its two composing communities: the Croat-dominated community, administered from Mostar, and the Bosniak-dominated community administered from Sarajevo. The three remaining members, all of whom had to be from outside Bosnia-Herzegovina, were appointed by the President of the European Court of Human Rights (ECtHR) (Art IX Annex 7). In this manner a Swiss, a Belgian (the author), and an Italian became members of the CRPC. The CRPC was given a five-year mandate, which was later extended for another three years to the end of 2003 as many claims had still to be decided (IOM (2008) 17). Although it was envisaged that the member’s mandates would be for a determined period of time and could be renewed, in fact the same members continued to serve throughout the whole life of the CRPC.

13  Article VII Annex 7 states that the CRPC set up its headquarters in Sarajevo, thus implying that it was not to operate from abroad. Moreover, Annex 7 allowed the CRPC to establish offices at other locations as it deemed appropriate. It thus created regional offices in Mostar and Lukavica (1996), Brcko (1997), Banja Luka and Tuzla (1998), and Bihac and Vitez (1999). By 2000 the CRPC had established over 22 claims collection facilities throughout Bosnia and Herzegovina and other countries. Moreover, as many refugees were living outside of Bosnian territory after the war, offices were also opened in Croatia, Serbia and Montenegro, Denmark, Germany, the Netherlands, and Norway.

14  To stress its impartiality, Article VII Annex 7 indicates that the CRPC was an independent Commission. Local entities did not control it. The Commission was exclusively financed by the international community.

15  The Republic of Bosnia and Herzegovina concluded a headquarters agreement with the CRPC. The CRPC was thus recognized as a public international institution by the Republic. Moreover, the Republic confirmed in Article 1 (1) Headquarters Agreement that the Commission possessed legal personality and recognized its international character. The CRPC’s international status gave it the required authority within Bosnia and ensured that it functioned under international law, thus excluding domestic influences.

16  From the very start, the CRPC relinquished its financial administration to the International Organization for Migration (IOM).

17  Throughout its existence, the CRPC each year held about eight plenary sessions of one week. Article IX Annex 7 provided that the Commission could also sit in panels. However, panels with two national and one international member would exclude a representation of the third ethnic group. Thus, instead, two working groups were established—one focusing on legal issues and the other on operational questions. Moreover, the national members regularly had preparatory meetings in between the sessions to discuss particular claims, to review draft proposals, and to prepare other important matters.

18  According to Annex 7, the CRPC could adopt decisions by simple majority; when no majority could be reached, the Chairman’s vote was decisive. Moreover, decisions on significant matters needed the support of at least two of the non-Bosnian members. In fact, to secure the support of all three ethnic groups, decisions were generally taken by consensus. Ballots were not secret but deliberations were: in order to avoid pressure from national authorities, the minutes of the deliberations did not relate the positions of individual members (Secrecy of deliberations).

19  The CRPC usually had between 200 and 300 staff members, with 400 at its peak in November 1999, who were based in the headquarters and regional offices throughout Bosnia and Herzegovina and abroad. The executive office in Sarajevo was divided into the following departments: Registry, Operations, Legal, Information Technology, and Public Information. The vast majority of the staff were locally recruited.

20  The non-Bosnian Commissioners and staff were granted protection under the Vienna Convention on Diplomatic Relations (1961) by Annex 7 and by the Headquarters Agreement, but the Bosnian Commissioners and staff were not. However, Article 1 Headquarters Agreement required the Republic to ‘take all necessary measures to ensure the protection, safety and security of the Commission and its members and staff in the performance of their duties and to ensure the security of its premises and facilities’.

E.  Relations with Other International Bodies

21  Article X (5) Annex 7 required the CRPC to cooperate with the other entities the Dayton Agreement established as part of the transition mechanism. Cooperation was especially intense with the Office of the High Representative, the ad hoc international institution created by the Dayton Agreement to monitor and coordinate the implementation of the civilian aspects of the Dayton Agreement.

22  Another Dayton Agreement institution the CRPC cooperated with was the Commission on Human Rights, ie the Office of the Ombudsman and the Human Rights Chamber. Established under Annex 6 Dayton Agreement, the entities had to secure respect for human rights in Bosnia and Herzegovina. The property rights the CRPC was determining were human rights, falling within the competence of the Annex 6 Dayton Agreement institutions. In fact, over two thirds of the cases submitted to the Office of the Human Rights Ombudsman concerned real property issues and often claimants would be informed they alternatively could lodge a claim before the CRPC. Ideally, proceedings before the CRPC should have preceded a claim before the Human Rights Commission: indeed, it was for the CRPC to recognize claimant’s property rights; it was for the Commission on Human Rights to intervene when these property rights, and all they entailed, were not recognized by the authorities. In no event could the Human Rights Chamber decide a claim which was substantially similar to a claim submitted to the CRPC. Hence, a permanent exchange of information on pending cases between the CRPC and the Commission on Human Rights was indispensable.

23  Whenever useful, the CRPC also cooperated with the United Nations High Commissioner for Refugees (‘UNHCR’) (Refugees, United Nations High Commissioner for (UNHCR)) for matters related to the status of refugees. And it not only entrusted IOM with its financial administration, as already stated, but could also make use of the world-wide network of IOM to reach potential claimants outside of Bosnia.

F.  Mandate, Jurisdiction, and Applicable Law

1.  Mandate

24  As stated above, the core of the CRPC’s mandate was to foster the return of refugees and displaced persons to their home of origin. Indeed, the initial aim of many States, which supported the negotiations, was to recreate a mixed, multi-cultural society in Bosnia. The ethnic cleansing and other war atrocities, however, were too fresh in the refugees’ and displaced persons’ memories to return to their homes, where they would remain an ethnic minority, subject to new discrimination. After all, the genocide of Srebrenica had happened only one year before.

25  Article XI Annex 7 provided for the CRPC to grant just compensation as an alternative for those claimants who did not want to return. This compensation should have been based upon fixed rates established pursuant to the assessment of properties as of 1 April 1992, ie the first day of the month the hostilities started (Article XII (4) Annex 7). This was a delicate basis for evaluation. First, it was difficult to determine the value of property just prior to 1 April 1992. Moreover, site visits would not be of much help as an abstraction had to be made on account of four years of war damage and deterioration (Site visit).

26  Compensation would be either in the form of compensation bonds or money (Art XII (6) Annex 7).

27  However, unfortunately there were no prospects to set up a real estate market where compensation bonds could be used to facilitate the voluntary exchange of property or the acquisition of new property. None of the international institutions created by the Dayton Agreement envisaged undertaking such a sensitive project. The drafters of the Dayton Agreement apparently envisaged that the CRPC itself would be a central player in the Bosnian real estate market where it would trade in the real property which was the subject of claims and could sell, lease, and mortgage the property of those who did not want to return home. The CRPC lacked funds and time to set up such a market and had more urgent priorities than to participate in an existing real estate business sector largely dominated by mafia-type organizations. Lacking a well-organized real estate market when the CRPC started its decision making, it considered it irresponsible to issue compensation bonds whose value and utility would have been more than uncertain.

28  Money payments were also not an option. The Dayton Agreement envisaged that money for compensation would come from a Property Fund, to be administered by the CRPC and established at the Central Bank of Bosnia and Herzegovina. This Fund would be fed by direct payments from the Republic and its constituent entities, as well as from third States, international organizations, and Non-Governmental Organizations. The income from all these transactions would further replenish the Property Fund. As most claimants did not want to return and as the pre-war value had to also be compensated, one could have expected that astronomical amounts would have to be distributed by the Property Fund. However, the Property Fund never received a single penny. As there never were funds to engage in real estate transactions, the CRPC decided that it would not engage in compensating owners for their property. The two axes of the CRPC’s mandate, ie return or compensation in lieu of return, were thus never implemented.

29  The wording of Article I Annex 7 makes clear that compensation could only be obtained when the owner was not able to return to their property. However, it was felt that full respect of property rights should not limit compensation to instances where actual return was requested but proven to be impossible. Each claimant had the free choice between return or compensation, regardless of whether they wished to return or not. Under Article XII (5) Annex 7 the owner was entitled to seek compensation ‘in lieu of return’.

30  As no compensation was eventually granted, it remains an academic question whether the alternative granting of compensation would not have undermined the prime policy of return and reconstruction of a multi-ethnic society. Indeed, by accepting compensation, the pre-war owner waived their claims over the property, which then would be relinquished to the actual occupant, usually a member of the majority ethnicity (IOM (2008) 16).

31  However, the CRPC did not hold an exclusive mandate to settle all property disputes in Bosnia. The domestic Bosnian courts and administrations kept their competence in this area. Nevertheless, the CRPC was the alternative whenever domestic instances were unable to render a fair and expedient decision.

2.  Jurisdiction

32  The CRPC’s jurisdiction did not completely coincide with the primary target of Annex 7 to promote the return of refugees and displaced persons to their homes of origin.

33  Article I Annex 7 envisaged that only owners of homes, of which they had been deprived in the course of the hostilities since 1991, could lodge a claim before the CRPC; the Commission had to restore their ownership rights and, if this was impossible, should grant compensation in lieu. However, restoration of property rights does not necessarily imply return to that property. On the other hand, non-owners may also have wished to return to their homes. Furthermore, even refugees and displaced persons who do not own their dwelling could wish to return. Moreover, by accepting compensation, owners waived their ownership rights and the right to return.

34  The CRPC only fulfilled the very first part of its mandate, ie the determination of ownership. It moreover assessed ownership rights as of 1 April 1992, with early April 1992 being the date when Croats, Bosniaks, and Serbs had declared their respective independence.

35  Annex 7 implied that the CRPC could not consider wartime transfers of property that occurred after April 1992 which were concluded under duress, in exchange for exit documents or otherwise in connection with ethnic cleansing and were declared illegal and invalid by Article XII (3) Annex 7. Annex 7 thus bestowed the CRPC with jurisdiction to determine whether a war-time property transfer had occurred voluntarily or not; if not, the transfer was illegal and had to be ignored. In fact, however, even fair transfers after 1 April 1992 were not considered by the CRPC as it only established property rights as of 1 April 1992. The CRPC was a fast-track body designed to help the domestic legal institutions through the backlog of property claims. It was ill-equipped to organize hearings and extensive pleadings to decide the illegality of contractual transactions. It lacked the funds and the time to investigate or engage in this type of dispute. The CRPC left it to the domestic courts to examine the specific context of each wartime transaction to find whether the transfer was made under duress and thus invalid. The CRPC’s task was to solve as expediently as possible property claims with streamlined, administrative proceedings where even the claimant was not being heard. Inquiries into the illegality of a transaction would jeopardize its work and negatively affect the momentum. In brief, the CRPC did not at all consider possible transfers of property during the war; all discussions about wartime transactions had to be brought before the domestic courts.

36  The CRPC, on the other hand, enlarged the scope of its jurisdiction beyond what the Dayton Agreement had conveyed to it. Indeed, it did not limit its jurisdiction to the determination of ‘property’ rights in the strict legal sense. In Yugoslavia, the majority of apartments were socially owned, ie owned by State enterprises, administrations, and the army, all of which allowed their workers and their relatives to dwell in them. Most single-family dwellings in Bosnia and Herzegovina were privately owned, but the majority of apartments belonged to companies, government organs, or social organizations and were ‘socially owned’. Those entities gave their employees so-called ‘occupancy rights’ (stanersko pravo). The right was a quasi-ownership right for life, which could be inherited by the family but could not be sold. It was greater than tenancy but less than full ownership. The holder of the right had to pay rent for the apartment as well as contributions to the Housing Contribution Fund. An additional complication was that the Yugoslav government had started to privatize the apartments before the war but that many holders still had to convert their occupancy right into full ownership. The CRPC assumed jurisdiction to decide over these occupancy rights.

37  Moreover, by 2000, when the processing of claims from refugees and displaced persons was well underway, the CRPC also checked whether applicants, not necessarily refugees and displaced persons, who had applied for reconstruction subsidies also had title to the property at stake. It was also asked by the Office of the High Representative to verify whether public officials were entitled to live in the dwellings they occupied.

3.  Applicable Law

38  The CRPC had to set up ‘rules and regulations to carry out its functions’. It had to consider—but was not strictly bound—by domestic property law (Art XV Annex 7). The Commission adopted a ‘Book of Regulations on the Conditions and Decision Making Procedure for Claims for Return’ (‘CRPC Regulations on Procedure’) which contained the rules on the legal, administrative, and organizational aspects of the CRPC and regulated procedural issues for the claims and decision-making process, including substantive and evidentiary standards (Holtzmann and Kristjánsdóttir, 2007, 40–41). It also adopted a separate ‘Book of Regulations on the Confirmation of Occupancy Rights of Refugees and Displaced Persons’ (‘CRPC Regulations on Occupancy Rights’) to spell out the specific decision standards and evidentiary requirements for claimants who were not owners, but only occupants of their dwelling (stanersko pravo).

39  Conflict of law principles of former Yugoslavia determined the applicable law. The Commission thus based its decisions on the title to real property on the former Yugoslav property law, applicable as lex rei sitae before the outbreak of the war. Pursuant to Article XV Annex 7, the CRPC also took into account local wartime and post-wartime statutory provisions of the respective warring factions, provided that they respected human rights and did not limit return to the homes occupied before the war. Preliminary questions, such as the standing of the claimant under the laws of marriage and inheritance, also had to be decided under national law, deemed applicable under the former Yugoslav conflict of laws system.

40  As stated above, the CRPC did not want to engage in inquiries about wartime transfers. For that reason, the Commission disregarded wartime local legislation by which wartime transfers had been confirmed and assumed that all wartime transfers had been made involuntarily and under duress.

41  The CRPC formally left it to the domestic courts to determine whether the allocation of a property title as of 1992 by CRPC’s decision was overtaken by a later but voluntary and fair transfer of the title in war time (un-voluntary and unfair transfers were not effective). From his side, the High Representative had made the necessary amendments to domestic property laws and had granted local courts the specific jurisdiction to decide whether and under which criteria war time transfers could affect the CRPC’s determination of pre-war property titles (End of Mandate Report, 4).

42  Article XII (5) Annex 7 obliged the Commission to apply local law when deciding on ‘abandoned’ properties which may be disposed of by CRPC. According to Article XV, in developing its rules and regulations the Commission shall consider domestic law. In practice, local law was taken into account; however, the CRPC had to ignore domestic legislation when it was incompatible with the protection of human rights, as the Commission made a declaration to this effect.

G.  Claim Collection Procedure

43  Under Article I Annex 7, refugees and displaced persons who were the owner of a dwelling could install a claim before the CRPC. Articles 1 and 2 CRPC Regulations on Occupancy Rights granted the same possibility to occupancy right holders (stanersko pravo). In fact, the status of internally displaced person or refugee and the fact that a claimant was not in possession of their property were presumed.

44  Moreover, under Article 10 CRPC Regulations on Procedure, ‘other natural persons with a legal interest in the claimed real property’ could also file a claim. Where the owners or occupants had died after 1 April 1992, their heirs could thus also lodge a claim. To avoid competing heirs and inheritance disputes being resolved before the CRPC, any decision sought by heirs would only indicate that the deceased had had property or occupancy rights as of 1 April 1992 but did not grant those rights to the indirect claimants. The Commission’s decision certificates only indicated the ‘historical’ owner or possessor of the property in question (Holtzmann and Kristjánsdóttir, 2007, 60–61). Moreover, Article 32 CRPC Regulations on Procedure provided that if a claimant’s death occurred before the Commission rendered a decision, the claimant’s heirs could either pursue or withdraw the claim submitted to the CRPC.

45  The Regulations on Procedure also entitled the claimants to amend, supplement, or withdraw their claims before the Commission at any time until the decision had been rendered. The withdrawal of the claim had to be explicit, made in writing and signed by the claimant. After receiving a withdrawal, the regional office was required to inform the Executive Office immediately (Holtzmann and Kristjánsdóttir, 2007, 288).

46  NGOs, international organizations such as UNHCR and IOM, and other Dayton institutions made refugees and displaced persons aware of the availability of the CRPC to submit property claims. Further information about the claims-registration procedure, including such issues as possible outcomes, documents to be presented, and the regional offices where this could be done, could also be found on the CRPC website. Prospective claimants were first interviewed to check whether the claim fell within the scope of the CRPC’s mandate. If the claim could not be instantly further processed, the claimant received an appointment at a specific date and time for the formal registration of the claim. The actual claims collection consisted of an individual interview of the claimant and screening of the supporting documentary evidence. However, because of the circumstances in which the refugees and displaced persons had had to leave their homes, up to one third of claimants were unable to present suitable documents proving their property rights. All relevant information was entered into a computer database and a claim form with (i) details about the claimants and registered right holders, (ii) details about the claimed real property and (iii) details about the property rights and the evidence presented was filled in. The claim form was then printed in duplicate and given to the claimant for review and signature. Evidence was returned to the claimant but a copy of the evidence and the signed claim form were registered and sent to the Sarajevo Headquarters.

47  Expecting hundreds of thousands of claims to settle within a limited timeframe, the Commission had to keep the proceedings as simple as possible. It did not hold hearings and rendered its decisions on the sole basis of the claim form and the evidence, submitted by the claimant and/or gathered by the Commission itself (see below).

48  In fulfilment of its mandate, the CRPC collected a total of 240,233 claims for 319,220 properties.

H.  Scope of the Claims

49  The claimants could submit four different types of claims: (i) recognition of ownership or possession, (ii) setting aside contracts, (iii) return to abandoned houses and apartments and (iv) prima facie verification of reconstruction purposes.

50  The first option, the request to recognize ownership or possession, was most often chosen. On the claims form the claimant had then to further indicate their further intentions: they could confirm their wish to have possession reinstated so that they could return to their home of origin or rent the property and/or sell the property. They could also request the mere confirmation of their ownership rights, which would still allow them to eventually return, rent, or sell the property on condition that the dwelling was not occupied by others. Or they could opt for compensation. The indications were, however, merely informative and were not binding for the claimant or the Commission. As already mentioned, in fact no compensation was ever granted and the CRPC limited itself to recognition of ownership or possession rights.

51  As a second option, the claimant could ask the Commission to set aside a wartime contract selling or transferring the property which had been concluded under duress. The Dayton Agreement explicitly empowered the Commission to declare contracts null and void, stating in Article XII (3) Annex 7 that:

The Commission shall not recognize as valid any illegal property transaction, including any transfer that was made under duress, in exchange for exit permission or documents, or that was otherwise in connection with ethnic cleansing.

52  No proof of duress or an act connected with ‘ethnic cleansing’ nor the causality between duress or such act and the transfer of property was required. The CRPC assessed the property rights as of 1 April 1992 as it presumed that any wartime transfer of property had been made under circumstances that justified setting the contract aside at any of the parties’ request.

53  The third option, where the claimant could request repossession of the dwelling he had occupied, requires some further explanation.

54  During and after the war, many apartments and houses were and remained vacated. The Federation and Republika Srpska had by statute declared that any holder who had left the premises after 30 April 1991 had lost his occupancy right. In this way, the municipal authorities could allocate the uninhabited houses and apartments to new tenants. It was stipulated that the occupancy of the dwelling thus allocated could only be returned to its previous occupant when he/she had returned to the premises and had started to live there within 7 days for internally displaced persons or 15 days for refugees abroad after the proclamation of the cessation of the state of war. Otherwise the property was considered permanently abandoned and the former occupant irrevocably lost their right to it. Of course, this last provision made it actually impossible for previous occupants to recover occupancy. Not only were the time limits of 7 and 15 days to return after the cessation of hostilities unrealistic, but in most cases the dwellings were inhabited by new residents who refused to vacate the premises.

55  The Commissions disregarded this domestic legislation, which was replaced by new property laws, imposed by the High Representative in both the Federation (April 1998) and Republika Srpska (December 1998). The new legislation abolished the 7 and 15 day limits and ordered the local municipal housing offices to process claims for repossession in a fair and just manner. In line with this new legislation, the CRPC was willing to decide on repossession whenever the competent municipal housing office prevented a claimant from submitting their claim, remained inactive, or dismissed the request in breach of the new legislation. To that end, the CRPC enacted a specific Regulations on Occupancy Rights to spell out the procedural and substantive requirements for claims for repossession.

56  The fourth option, prima facie ‘verification for reconstruction purposes,’ is related to the offer from international agencies and non-governmental organizations to finance the reconstruction of destroyed dwellings. Indeed, reconstruction of the dwelling is necessarily the first condition for return. However, reconstruction would only be financed when the CRPC had, at the request of the financiers, established that the rightful occupant was or would be living in the dwelling. The CRPC checked the legal status of the beneficiaries of reconstruction aid and delivered ‘prima facie notifications’ or ‘indications of property rights’ for the specific premises at stake. By July 1999, the Commission submitted to the Office of High Representative over 8,000 prima facie notifications for Brcko, a much-destroyed front-line area where most of the population wanted to return (Van Houtte, 1999, 637).

I.  Evidence

57  As Bosnian real property law distinguished between full ownership and lawful possession, the Regulations on Procedure required separate evidence for the two property rights. Ownership rights could be evidenced by property book extract or by an extract of the property cadastre (which in few places merged the land cadastre and the property book), whereas the basic evidence of lawful possession was a cadastral record. Unfortunately, some property books and cadastre records were not well kept or had disappeared in wartime, having often been destroyed on purpose to prevent return and property claims. When no reliable property books or cadastre were available, building permits, contracts of sale, or payment of income tax from the real property could have been considered as evidence of ownership or possession. For claimants wishing to establish standing to claim property rights of their deceased relatives, court decisions on inheritance, for example, could be considered as evidence.

58  Occupancy rights (stanersko pravo) could be proven by the registration of domicile, by data from the 1991 census, by a contract of assignment of an apartment or by the owner’s register of apartment occupants.

59  Most claimants could not submit sufficient evidence for their claim. Being refugees or displaced persons who often had to flee from their homes unpreparedly, they had often left property records behind and could no longer consult the property books and cadastres of their place of origin. Moreover, they were largely inaccessible to claimants who, as refugees or displaced persons, lived too far away to visit the registries and, moreover, feared the inhospitable reception from the local population and authorities. Thus, CRPC rules provided that the claims could be submitted without supporting evidence. In such cases, it was the Commission’s task to gather whatever evidence available. Articles 44 and 45 CRPC Regulations on Procedure state that:

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 (Holtzmann and Kristjánsdóttir, 2007, 216).

60  The Commission had free access to all property records. It thus consulted the data of the Geodetic Institute in Sarajevo in search of evidence for specific claims. Its Verification and Cadastre Unit further collected and verified evidence from courts and cadastre offices from all of the country to supplement the evidence of submitted claims. Staff members also checked the identity and domicile of claimants with data of the 1991 census which listed all inhabitants of Bosnia and Herzegovina. The CRPC also obtained computer customer data from telephone and electricity companies which enabled the Commission to reconstruct whether and for how long a claimant has been living at a specific address. The CRPC eventually also developed its own central cadastre land survey database in 2002, which it transferred to the Bosnian authorities at the end of its operations. This database allowed verification of property claims in 86 out of 109 pre-war municipalities.

61  To further simplify the burden of proof, the Commission also adopted evidentiary presumptions. For example, Article 12 CRPC Regulations on Procedure provided that claimants were not required to prove that they were displaced persons or refugees at the time of registering and Article 11 presumed the persons who submitted the claim not to be in possession of the claimed real property. In practice, the Commission also accepted claims for homes abandoned after the Dayton Agreement was signed in 1995.

J.  Decisions

62  Decisions were taken by the Commission at the headquarters in Sarajevo. In the Legal Department, a team of over 45 lawyers of different nationalities reviewed claims and prepared draft decisions. They either accepted the claim, rejected it, or declared it inadmissible. As much as possible, claims featuring a common pattern were grouped and all claims were entered into a claims processing software.

63  The claims and proposals were presented for consideration and discussion to the Legal Working Group composed of four commissioners. The Legal Working Group reviewed the drafts for consistency with the provisions of the Regulations on Procedure and with other decisions. On the basis of instructions from the Legal Working Group, the legal staff further reviewed the claims and assessed the evidence. After the claims were further checked by the Executive Office staff, the draft decisions were proposed to the full Commission, which included the four Members of the Legal Working Group, at the monthly plenary session. According to Article 59 CRPC Regulations on Procedure, the Commission could (i) completely accept the proposed decision either to accept the claim, to reject it, or to declare it inadmissible, (ii) partly change or amend the decision proposals, or (iii) send the proposals back to the Legal Working Group for further consideration. At the end of the process, the full Commission turned the accepted proposal into a final decision which accepted, rejected, or declared the claim inadmissible.

64  The CRPC Registry then had to hand-deliver to each claimant a certificate confirming the final decision. For security reasons, certificates were not sent by post to decision holders. Unfortunately, many refugees and displaced persons had moved during the course of the claims processing and could not be found. In total 360,246 certificates had been issued by the end of 2002, affecting the habitation of some one million people (End of Mandate Report, 2). Of this number, unfortunately only 232,268 certificates were successfully delivered, ie 75 per cent of the total number of certificates issued (End of Mandate Report, 22). The undelivered certificates were retained by the CRPC. Moreover, even if finally undelivered, the decisions the certificates incorporate remain relevant. They could be retrieved from the CRPC website and the domestic authorities were informed of their content. They have not been otherwise published. Their relevance was limited to the owner and the property at stake as they only confirmed property title, but did not specify the reasons for such confirmation.

65  The decisions could not be reviewed by domestic courts. Because of the frequent incompleteness of documentary evidence, it cannot be excluded that some decisions were incorrect. Interested parties could request a decision be reconsidered on the basis of additional evidence. Reconsideration was requested in only 0.8 per cent of the decisions issued of which a mere 20 per cent resulted in an amendment of the initial decision.

K.  Enforcement

66  The Dayton Agreement did not provide for the enforcement of the Commission’s decisions. The domestic authorities under supervision of international bodies created by the Dayton Agreement were thus responsible for the decisions’ implementation by virtue of Annex 7, which states in Article VIII that the parties ‘shall respect and implement its decisions expeditiously and in good faith’.

67  Between 1997 and 2000 however, the domestic authorities obstructed the implementation and failed to fulfil their obligations to enforce the Commission’s decisions. By 1999 the High Representative had imposed new legislation upon the domestic authorities to properly decide property claims. In the same year the Law on Implementation of CRPC Decisions also made the municipal housing authorities responsible for implementing the CRPC property decisions. The Law on Property Books confirmed that the CRPC Decisions could be used as evidence in administrative, judicial, and other legal proceedings to register ownership.

68  In the event a CRPC Decision was not implemented as provided by the law, claimants could bring their case before the domestic courts and, if necessary, before the Human Rights Commission created under Annex 6 Dayton Agreement. As a last resort, the European Court of Human Rights could order Bosnian authorities to respect the property rights of the legal owner of the dwelling (see Dokic v Bosnia and Herzegovina, 2010; Mago and Others v Bosnia and Herzegovina, 2012).

69  Moreover, the CRPC and four other international organizations engaged in property issues with the Office of the High Representative in Bosnia, the UNHCR, the Organization for Security and Co-operation in Europe (OSCE), and the United Nations Mission in Bosnia and Herzegovina setting up the Property Law Implementation Plan (‘PLIP’) to ensure that property was repossessed in an efficient manner and with respect for the rule of law. In this context, the PLIP promoted capacity building of domestic bodies, trained housing personnel, granted financial support to housing administrations, fostered legislative and judicial reforms, and installed bodies and mechanisms to supervise how property decisions were being implemented (End of Mandate Report, 23–24).

70  Within the framework of the PLIP, the CRPC carried out property checks, and allowed the OSCE access to its databases. It also performed 54,800 checks for reconstruction agencies, confirming that potential beneficiaries of reconstruction assistance were entitled to the housing identified for repair. CRPC legal advisors also advised free of charge claimants and certificate holders. Whenever needed, the Commission not only advocated enforcement in specific instances whenever one of its decisions was not enforced, but also intervened at the highest policy levels to ensure the implementation of its decisions.

71  To monitor enforcement of its decisions, the CRPC intensively cooperated and collaborated with local housing bodies. Its staff regularly visited municipal housing authorities, cantonal ministries, and court registries.

72  The CRPC also had the mission of monitoring local housing authorities whenever they had to allocate the present occupants of a dwelling to which the legitimate occupant wanted to return, to another dwelling, which was not yet occupied, whenever this was required for humanitarian reasons. Dwellings which had merely been appropriated by people not in need of a temporary shelter should have been immediately vacated and returned to the pre-war occupants. However, the local authorities were rather reluctant to evict present occupants and restore the pre-war occupants to their homes. To improve matters and pressure the local authorities, the CRPC started as of 2000 to collect information on individual proceedings for repossession from the municipalities and passed it on to international organizations. To have a more global approach, the CRPC established a comprehensive Repossession Tracking Database to monitor repossessions throughout Bosnia and Herzegovina. Moreover, the CRPC in collaboration with other PLIP partners developed an Information Exchange Project (also called the Integrated Property System, ‘IPS’), to allow municipalities to share data on repossession. The project integrated the CRPC claims and decision database and the CRPC repossession database with 39 municipal claims and decisions databases. When the CRPC ended its operations in 2003, the Repossession Tracking Database and the Integrated Property System were transferred to the Bosnia and Herzegovina Ministry of Human Rights and Refugees. At that time, the database contained 240,000 repossession claims submitted to the CRPC and 171,600 repossession claims submitted to the local authorities. Of these claims, 186,700 claims had already resulted in effective repossessions, registered in the database (End of Mandate Report, 25). When the CRPC ceased its operations, the database was used by the domestic authorities of Bosnia and Herzegovina to further implement the repossession of properties in line with Annex 7.

73  According to PLIP statistics, by November 2003, 202,207 property repossessions were recorded, contributing to a 92 per cent implementation ratio. The monitoring projects of CRPC show that 80 per cent of the decisions confirming the rights to residential property were implemented. There were also over a million returns registered from the time of signing the Dayton Agreement until 31 May 2003 (End of Mandate Report, 28).

L.  After the Dissolution of the Commission

74  When the CRPC ceased operations at the end of 2003, some requests to review the CRPC’s decisions had been launched but could not be processed before termination. Pursuant to Article XVI Annex 7, the Federation and Republika Srpska agreed to transfer these reviews to a new, this time purely domestic ‘new CRPC’ and to the domestic courts. However, these entities decided that they had no jurisdiction to carry out the review and to amend CRPC decisions. Moreover, the Bosnian Constitutional Court in Siniša Stanisavljević v CRPC, declared inadmissible an appeal against a CRPC decision because it considered itself without jurisdiction to review decisions emanating from a Dayton Agreement entity (Siniša Stanisavljević v CRPC, 2008). The domestic ‘new CRPC’ was finally dissolved in 2008 (Arnaut, 2012).

M.  Evaluation

75  The CRPC was created to bypass domestic legal institutions which were seen as dysfunctional. It filled the void in the administrative and judicial systems that existed after the war. The Bosnian housing administrations and judiciary were not equipped to handle hundreds of thousands of property claims through ordinary procedures. The CRPC provided for a fast-track procedure to help the domestic institutions through the backlog of claims.

76  The CRPC has certainly fallen short of producing the ambitious results to which the Dayton Agreement aspired. It had nevertheless a significant impact on the peace process in Bosnia and Herzegovina. A population cannot live in peace when property rights remain violated. The confirmation of property rights contributed to the restoration of civil society. Confirmed property rights were not only the prerequisite for return and the basis for renting and selling this property; they were also crucial to start economic activities as they entitled the owner to mortgage the property to finance business operations.

77  The Commission was not the first international attempt to settle post-war property claims. For instance, in 1950 an international mechanism was set up to promote return of or to provide compensation for the millions of Muslims, Hindus, and Sikhs who mass-migrated in 1947 when India and Pakistan seceded; however, the ambitious arrangement failed (Schechtman, 1951, 412). Compared to its predecessors, the CRPC has reached results which no other property claims mechanism had attained before. A few features explain its success.

78  First, limiting the scope of its decisions to the mere recognition of property rights without granting compensation made its operations financially affordable. The total cost of 33 million USD over the eight years of its operations was relatively small and was covered without substantial difficulty by the European Communities, the US, and the UNHCR, as well as 13 individual States, which considered that the CRPC efficiently contributed to the peace process.

79  The fact that other instances were responsible for the enforcement of its decisions also reduced its task and risk of failure.

80  The CRPC successfully combined its international status with its integration within the domestic orders. Its independence and authority were not questioned. Its three international commissioners and the high-quality non-Bosnian leading staff facilitated consultation and coordination with the financing States, the other Dayton entities, and international organizations active in Bosnia. On the other hand, the CRPC, with headquarters in Sarajevo, was well integrated in Bosnian society. Six of its nine commissioners were well-known local personalities, well connected with the political elite. The local staff members, proportionally recruited from the three communities, also kept efficient contacts with their entities’ authorities. These links with domestic authorities were very useful as the CRPC had to rely on domestic instances for its decisions to be enforced.

81  Of course, the fact that the CRPC could make use of modern technology such as computer software and electronic databanks could only add to its efficiency.

82  The CRPC has become the model for other property claims commissions, eg the Housing and Property Claims Commission in Kosovo was modelled after it and domestic property claims commissions, such as the Iraq Property Claims Commission, have largely copied their modus of operation from the CRPC.

Cited Bibliography

  • J Schechtman, ‘Evacuee Property in India and Pakistan’ (1951) 24 Pacific Affairs 406–13.

  • P Gaeta, ‘The Dayton Agreements and International Law’ (1996) 7 EJIL 158–60.

  • H van Houtte ‘Mass Property Claim Resolution in a Post-War Society: The Commission for Real Property Claims in Bosnia and Herzegovina’ (1999) 48 ICLQ 625–38.

  • HM Holtzmann and E Kristjánsdóttir (eds), International Mass Claim Processes. Legal and Practical Perspectives (Oxford University Press 2007) 40–41, 60–61, 216, 288.

  • International Organization for Migration, Property Restitution and Compensation. Practices and Experiences of Claims Programmes (IOM 2008) 16–17.

  • S Arnaut, Commission for Displaced Persons and Refugees (CRPC) – Legal Legacy (Fondacija Centar za javno parvo 2012).

Further Bibliography

  • M Cox, ‘The Right to Return Home: International Intervention and Ethnic Cleansing in Bosnia and Herzegovina’ 47 ICLQ (1998) 599.

  • M Garlick, ‘Protection for Property Rights: A Partial Solution? The Commission for Real Property Claims of Displaced Persons and Refugees (CRPC) in Bosnia and Herzegovina’ (2000) 19 Refugee Survey Quarterly 64–85.

  • H Das, ‘The Concept of Mass Claims and the Specificity of Mass Claims Resolution’ in Permanent Court of Arbitration (ed), Redressing Injustices Through Mass Claims Processes (PCA 2006).

  • M Cox and M Garlick, ‘Musical Chairs: Property Repossession and Return Strategies in Bosnia and Herzegovina’ in Scott Leekie (ed), Returning Home, Housing and Property Restitution Right of Refugees and Displaced Persons (Transnational Publishers 2003) 65–81.

  • H Das and H van Houtte, Post-War Restoration of Property Rights under International Law, Volume 2: Procedural Aspects (Cambridge University Press 2008).