The status of so-called “state property” in Bosnia and Herzegovina is the subject of a long-standing dispute between representatives of the Republika Srpska and the Federation of BiH. Republika Srpska says that the property belongs to the entities, while representatives of the Federation of BiH believe that the property should belong to the state, and its status is regulated by law at the state level.
The issue of property is a definite line and there will be no discussions about it. This was said by the Republika Srpska President Milorad, adding that any attempts to impose will lead to the National Assembly declaring the independence of Republika Srpska. This statement speaks volumes about how important property and disposal of property, located in the territory of Republika Srpska, are.
How did the property become “state” owned
It is interesting that the issue of the so-called “state property” did not appear before the public of Bosnia and Herzegovina until 2005. It was considered that the issue was resolved by the Dayton Agreement and the division of territory between RS and FBiH in the ratio of 49 to 51 percent. If the property issue had not been resolved or if it was considered that the property was the property of the state, an agency or commission would have been formed to deal with the issue, as numerous institutions at the level of BiH have been formed. However, it was not formed, because there was no need. At the same time, the Constitution of BiH foresees that the budget and institutions of BiH are financed by entity funds, which excludes the argument that BiH needs property in order to exercise power.
However, in 2005, the then high representative in BiH at the time, Paddy Ashdown, imposed the Law on the Temporary Ban on the Disposal of State Property of Bosnia and Herzegovina, which was later amended several times in 2006 and 2007. In accordance with the aforementioned law, the following were considered state property:
immovable property that belonged to BiH on the basis of the international agreement on matters of succession, and is considered the property or possession of any level of government or public organization of BiH
and immovable property on which the former SR BiH had the right of disposal and management until December 31, 1991, and which is considered the property or possession of any level of government or public organization of BiH or any administrative unit of BiH.
Finally, in 2022, Christian Schmidt, whom the Republika Srpska considers to have no legitimacy as a high representative, imposes the Law on Amendments to the Law on the Temporary Prohibition of Disposal of State Property. With this law, “state property” was extended to agricultural land, rivers, forests and forest land, which the Constitutional Court of BiH, in its previous decisions, determined to be “state property”.
Constitutional Court of BiH– instead of interpreting, creating the Constitution
In the meantime, all attempts by Republika Srpska to regulate the status of property located on its territory through laws adopted by the National Assembly have been contested by the decisions of the Constitutional Court of BiH, with explanations that property is the exclusive jurisdiction of BiH or by decisions of high representatives in BiH. The Constitutional Court, which has nine members, two Serbs, two Bosniaks, two Croats and three foreign judges, made numerous decisions by overriding two judges from Republika Srpska.
Therefore, it is not surprising that the representative of Republika Srpska believes that the reform of the Constitutional Court and the departure of foreign judges is one of the priorities.
“State property” that doesn’t exist in the state Constitution
The legal profession of Republika Srpska warns that the Constitution of BiH clearly defines that all state functions and powers, which are not expressly assigned to the institutions of BiH by the Constitution, belong to the entities – Republika Srpska and the Federation of Bosnia and Herzegovina. Also, it stems from this that the regulation of property relations is within the jurisdiction of the entity.
In addition, the Constitution of BiH does not mention “state property” at all, nor does it talk about the competence of the institutions of BiH regarding the regulation of property relations. At the same time, the Parliamentary Assembly of BiH has never passed a single regulation regulating property rights.
All regulations in this area, according to the principle of division of competences established by the Constitution of BiH, are under the exclusive competence of the entity. Accordingly, the entities and the Brčko District of Bosnia and Herzegovina passed their own laws regulating property relations.
Although the Constitution of BiH does not contain any provision on “state property”, i.e. despite the fact that at the level of BiH institutions there is no law that mentions or regulates “state property”, it follows that the concept of “state property” was established and determined by the Constitutional Court.
It is contradictory that the Constitutional Court, in 2021, announced in one of its decisions that “the Court cannot claim that all “state property” is necessarily the property of the State of BiH”. In other words, the same things (such as goods of general interest) are sometimes “state property” – e.g. agricultural land, and sometimes they are not – e.g. urban construction land; sometimes BiH is responsible for their legal arrangement, and sometimes it is not. That is why the legal profession believes that the system of regulating property relations in BiH, which was rounded off by the reform of legislation in this area in the RS, FBiH and Brčko District ten years ago, is completely devastated. Thus, the Constitutional Court, in terms of concern for legal certainty, turned into a negation of its idea and role.
Tadić: The Succession Agreement doesn’t entail the right to property
The succession agreement of the former SFRY was concluded in 2001 by five countries: Slovenia, Croatia, Bosnia and Herzegovina, the Federal Republic of Yugoslavia and the Former Yugoslav Republic of Macedonia. It sets out the basic principles and obligations of the successor states in the property division of the inheritance of the SFR Yugoslavia. In that agreement, BiH acted as Dayton’s Bosnia and Herzegovina, and now there is a thesis that property was acquired as a result, says jurist Ognjen Tadić.
“We, as an answer to that thesis, can first ask the question, is it written anywhere in this Agreement that the transfer of ownership is carried out in the way that it would represent the acquisition of property? It doesn’t say. And that simply cannot be discussed anymore!“
Ognjen Tadić, jurist
Tadić explains that BiH was not the only complex country that participated in the signing of the agreement, Federal Republic of Yugoslavia was one as well. However, unlike BiH, which does not have the authority to enact property laws and ratified the Agreement by decision, the FRY ratified the Agreement by law, because the Constitution of the FRY gives the then country the right to dispose of property rights. BiH does not have such a provision in the Constitution, says Tadić. Where BiH has competences in the Succession Agreement, such as fiscal matters, Republika Srpska did not pose any problem. The agreement, emphasizes Tadić, also includes the issue of pensions, and neither the RS nor the FBIH are mentioned in the Agreement, but BiH assumes obligations when it comes to the payment of pensions. There is no pension fund or agency at the BiH level in BiH, because that issue was previously resolved by the Dayton Agreement and there is a clearly divided jurisdiction over pensions, as there is over property, and this is the third argument that says that the Succession Agreement does not negate constitutional arrangement and division jurisdiction, Tadić assesses.
BiH doesn’t have its property
Bosnia and Herzegovina does not have its own property, and all natural and public goods located on the entity’s territory exclusively belong to them. This position is explained by the professor of constitutional law, Siniša Karan, by the fact that Republika Srpska, in the process of creating the new state union of BiH, entered its total state legal capacity, as well as the capacity of its property. He reminded that Annex 8 of the Dayton Agreement clearly stipulates that the entities have exclusive jurisdiction over matters concerning property.
“The post-Dayton practice of all relevant actors in BiH shows that it is understood that state property belongs to the entities. The international community recognized and supported the established legislation and practice. However, the High Representative and certain members of the Peace Implementation Council later changed their position to accommodate the ambitions of the leading Bosniak political parties“.
Siniša Karan, Professor of Constitutional Law
In the meantime, the media reported that in January 2024, the work of the Working Group, which was formed by the OHR with the aim of solving the issue of state property, should be completed. The draft material will be sent to the BiH Parliamentary Assembly. An answer has already arrived from Republika Srpska that property cannot be discussed by the BiH Parliament and that the possible imposition of that law by Christian Schmidt would lead to the declaration of independence of Republika Srpska.
The Srpska Times