Why Urgent Amendments to the Law on Agricultural Land in FBiH Are Necessary

Written for NAP by: Dr. sc. Amir Šelo, legal expert

The Civil Division of the Supreme Court of the Federation of Bosnia and Herzegovina on 04.11.2024. adopted a Legal Opinion that acquiring ownership by prescription does not constitute disposal within the meaning of the provisions of the Law on the Temporary Prohibition of Disposal of State Property of the Federation of Bosnia and Herzegovina ("Official Gazette of FBiH", no. 20/05, 17/06, 62/06, 40/07, 70/07, 94/07 and 41/08). This legal opinion is not applicable to state forest land and forests on state land, as cantonal and entity laws on forests of the RS stipulate that acquiring ownership by prescription of state forests is prohibited.

Such a Legal Opinion of the Supreme Court of the Federation of Bosnia and Herzegovina can lead to a change in the titleholder of agricultural land that is state property in the Federation of Bosnia and Herzegovina, because a provision prohibiting the acquisition of ownership by prescription does not exist in the Law on Agricultural Land of FBiH ("Official Gazette of FBiH" no. 52/09).

With this legal opinion, the Supreme Court of the Federation of Bosnia and Herzegovina has provided an authentic interpretation of the Law on the Temporary Prohibition of Disposal of State Property of the Federation of Bosnia and Herzegovina, although the High Representative for Bosnia and Herzegovina, as the author of the Law, is exclusively competent to interpret the said Law. Furthermore, when adopting this Legal Opinion, Article 2, paragraph (2) of the Law on the Temporary Prohibition of Disposal of State Property of Bosnia and Herzegovina should have been taken into account, which clearly stipulates that any decision, act, contract, or any other legal instrument disposing of property from Article 1 of this Law (editor's note: including agricultural land, which the Constitutional Court of Bosnia and Herzegovina determined to be state property in its decision in case no. U-8/19) contrary to the provisions of this Law, is null and void.

This Legal Opinion of the Supreme Court is, in the opinion of the author of this text, contrary to the Decision of the Constitutional Court of BiH in case no. U-8/19 and the previous regime of state agricultural land.

Namely, regarding the application of the institution of prescription for acquiring ownership of things in social ownership, the Law on Basic Property Law Relations (ZOVO) was explicit: "Ownership of things in social ownership cannot be acquired by prescription." Thus, the acquisition of ownership by prescription was legally excluded, even for movable property in social ownership, during the period from September 1, 1980, to October 8, 1991, when the provision of Article 29 of ZOVO was repealed.

The acquisition of ownership of agricultural land in social ownership by prescription was explicitly excluded by the Law on the Utilization of Agricultural Land of November 5, 1959. However, the obstacle to acquiring rights to real estate in social ownership by prescription arose from the principle of establishing social ownership, i.e., public property, based on the Constitution of the Federative People's Republic of Yugoslavia of January 31, 1946, and the forced transfer of real estate from private ownership to public property/social ownership.

Since no law provided for the possibility of acquiring ownership by prescription of real estate in social ownership, and considering the principle of inalienability of such real estate (land), i.e., acquiring ownership of it only under certain legal conditions - the acquisition of ownership by prescription of real estate in social ownership, including agricultural land, was indirectly excluded even before the Law on the Utilization of Agricultural Land ("Official Gazette of SFRY" no. 43/59) came into force. Based on Article 112, paragraph (1) of the said Law, the right of ownership of agricultural land in social ownership could not, in principle, be acquired by prescription.

There is also relevant court practice from the Supreme Court of Yugoslavia on this matter: Rev 1935/64, dated October 30, 1964. ZSO IX-3, 249, as well as relevant court practice from the Supreme Court of Croatia: Gž-147/62, dated June 7, 1962; SVS Gž-57/57, dated December 18, 1957, ZSO II-3, 626; VSH Gzz-55/79 and Gž - 71/81.

In the decision of the Constitutional Court of Bosnia and Herzegovina no. 8/19 of 06.02.2020, the Constitutional Court concluded that the legal regime of agricultural land in previous legal systems of Bosnia and Herzegovina (SRBiH, RBiH) was determined in a similar way, as public good managed by the state. Thus, Article 92 of the Constitution of SRBiH stipulated that goods of general interest, which include, among other things, land, forests, waters, and other natural resources, enjoy special protection as goods of general interest and are used under conditions and in a manner prescribed by law.

However, in addition to being defined as a public good of general interest, agricultural land also serves as a means of work in agricultural production, which is of general importance. In this regard, the Constitutional Court points out that in the legal system of SRBiH, agricultural land had the status of public property, or later social ownership, which included the rights of management, use, and disposal. Thus, the Law (SFRY) on the Agricultural Land Fund of Public Property and the Allocation of Land to Agricultural Organizations from 1953 first included means of work such as agricultural land within the right of use. Bearing in mind the legal continuity of the state of BiH according to Article I/1 of the Constitution of BiH, the Constitutional Court notes that it follows from the above that in previous legal systems (SRBiH) as well, land in general, including agricultural land, represented public, i.e., state property.

The trade of state agricultural land can only be carried out for the purpose of performing agricultural activities, except in cases prescribed by this Law, as stipulated by Article 99 of the Law on Agricultural Land of the Federation of BiH - Official Gazette of FBiH (no. 52/09), and this position of the Supreme Court of the Federation of Bosnia and Herzegovina is also in contradiction with the principles of the Law on Agricultural Land of the Federation of Bosnia and Herzegovina.

Given that there should be consistency in the legal regimes of state forests, state forest land, and state agricultural land, in the opinion of the author of this text, it is necessary to initiate amendments and additions to the federal and all cantonal laws on agricultural land, and to prescribe provisions prohibiting the acquisition of ownership by prescription of state agricultural land in the Federation of Bosnia and Herzegovina entity.