The state-level Law on Religious Freedom was passed in 2003, allowing religious communities the right to restitution for expropriated property “in accordance with the law;” however, there is not yet a state-level law on restitution. Due to the lack of such a legal framework for property restitution, the Jewish Community of BiH does not have a legal mechanism to formally request the return of its property. Furthermore, the governments of BiH’s two sub-state entities – the Federation and Republika Srpska (RS) – have made no meaningful attempts to resolve this matter. In the absence of a national restitution law, lower-level municipal and cantonal governments have broad authority to allocate disputed property expropriated by the former Communist government.
Local politicians often dole out seized properties as political favors, primarily to the ethnic or religious majority populations in their areas. Due to both the small size of the Jewish population and its lack of political influence, the ad hoc system of limited, in‑kind restitution of personal and/or communal property has excluded the Jewish community. According to the president of the country’s Jewish community, the community has received no property back from municipal or cantonal governments since 1995. At one point, Sarajevo Canton was considering returning the building formerly owned by the Jewish charity La Benevolencija, which currently houses the Cantonal Ministry of Interior offices, but it has not done so. The Jewish community completed an extensive survey in 2005, including a review of legal documentation related to properties formerly owned by Jewish institutions and organizations. With this work done, the community is prepared to file claims as soon as a state-level restitution law is adopted.
Most Jewish families with individual real property claims are waiting for the legal framework to be established before deciding how to pursue their claims. Payment for restitution was the subject of a feasibility study conducted by the Sarajevo Economic Institute in 2006.
According to its president, the Jewish community in BiH is seeking the return of four different kinds of confiscated or seized real property:
a) Communal property formerly owned by Jewish institutions and organizations;
b) Individually owned property;
c) Heirless property, i.e., where the entire family was killed or there are no successor blood relatives; and
d) Property that was forcibly “donated” to the Yugoslav state in 1948-1949. (When the state of Israel was created, Jews wishing to emigrate were required to “donate” their property to the state government to obtain the necessary exit visa.)
At the state level, there has been a lack of political will to adopt a law on restitution. In 2005, BiH’s Council of Ministers established a Commission for Restitution to consider possible approaches to the restitution of property confiscated during and after WWII. Officially called the Law on De-nationalization, the Serb delegates in the House of Peoples (the upper house of the BiH Parliament) rejected the initial version of this comprehensive law in 2008.
In December 2008, the Council of Ministers formed a parliamentary working group to draft a new and improved version of the law, this time including input from the Interreligious Council’s (IRC) legal working group. The state-level Ministry of Justice announced in July 2009 that the new draft Law on De-nationalization would ensure the return of confiscated property (“natural restitution”) to original owners as a first and preferred option. The law directed that for cases in which natural restitution was not possible, in-kind restitution would apply. In cases where in‑kind restitution was not possible, the law foresaw financial compensation.
The draft law was posted on the Ministry of Justice website for public comment, after which it should have advanced via normal legislative procedures for adoption by the Council of Ministers and then Parliament. However, this legislation has not been moved forward.
The Republika Srpska (RS) passed a series of entity-level laws on restitution in 2000, including the RS Law on Return of Confiscated Property and Compensation, the RS Law on Return of Seized Real Property, and the RS Law on the Return of Seized Land. Under the proposed laws, the RS assumed financial responsibility for compensating claimants whose property could not be returned. The Office of the High Representative (OHR) later asserted its authority under the Dayton Peace Agreement to annul the legislation, citing the financial burdens of implementing the program. The OHR argued that the laws would “cause irreparable damage to the economy of BiH” because the RS had not identified a funding source for the payments. Furthermore, OHR claimed that the package of laws did not provide sufficient protections to prevent discrimination in the restitution process, would overburden the judicial system, and would add to an already bloated bureaucracy.