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IMPEDIMENTS TO RETURN

According to the Croatian government, approximately 300,000 ethnic Serbs left their homes during the 1991-95 war. Most left for Serbia and acquired refugee status there, but 50,000 Serbs remained at the end of the war in Eastern Slavonia, as internally displaced persons.² As of late 2003, according to the government, 108,000 Serbs had registered as returnees. The number of returnees who actually stay in Croatia, however, is far below this number: field surveys conducted by the Organization for Security Cooperation and in Europe (OSCE) Mission to Croatia, and nongovernmental organizations (NGOs) acting as implementing partners for the office of the United Nations High Commissioner for Refugees (UNHCR), suggest that in most areas only about 60 percent of registered returnees are still in place, with the rest having moved back to Serbia-Montenegro or elsewhere. In some parts of Croatia, the percentage of sustainable returns falls far below 50 percent.³

Lack of access to their pre-war homes remains is a key impediment to Serb return. Obstacles range from an inability to repossess property held illegally by temporary occupants, to being unable to receive substitute housing or compensation for lost tenancy rights. Fear of arbitrary arrest on war-crimes charges, and discrimination in employment and pension benefits also deter the return of Serb refugees.

These problems reflect the legacy of persistent ethnic discrimination against Serbs by successive Croatian governments. This view is echoed in reports on Croatia from United Nations treaty monitoring bodies, including the Committee on Economic, Social and Cultural Rights, the Human Rights Committee, and the Committee on the Elimination of Racial Discrimination.⁴

Until recently, no Croatian government had made a genuine attempt to foster a public opinion more tolerant of the return of Croatian Serbs. Instead, Croatian authorities have consistently prioritized the needs and rights of ethnic Croats—including Croat refugees from Bosnia—over the rights of Serb refugees, internally displaced persons, and returnees.

Repossession of Private Property and Accommodation for Former Tenancy Rights Holders

In February 2004, the new government announced deadlines by which it intends definitively to resolve property-related problems impeding return: 

• end of June 2004: repossession of private properties illegally held by temporary users;

• end of 2004: return of all privately owned properties, currently used by

temporary occupants, to the owners;

• end of 2004: media campaign and the acceptance of applications for a

subsidized housing program for former tenancy rights holders in the areas

which were under the control of the government during the 1991-95 war;

• end of 2006: provision of permanent alternative accommodation (stambeno

zbrinjavanje, which roughly translates as “housing care”) for all tenancy rights

holders, who meet the requirements set forth by June 2003 government

conclusion, in the areas which were under government’s control during the

1991-95 war.⁵

An additional deadline was given to Human Rights Watch at a February 2004 meeting with a senior Croatian government representative:

• end of 2005: provision of housing care for former tenancy rights holders, who

meet the legal requirements, in areas controlled by Serb rebels during the 1991-

95 war (so-called areas of special state interest, previously referred to as “areas

of special state concern”).⁶

The international community and the European Union in particular, should firmly hold Croatia to the new – and long overdue – deadlines. Past experience dictates caution in approaching the government’s pledges, and careful monitoring of its fulfillment. The previous government had committed itself to return of all occupied private properties first by the end of 2002, and then by the end of 2003; both deadlines expired with the government failing to meet the set objectives.

Repossession of Private Property

While Croatia is making some progress in the implementation of the legislation on repossession of property, movement continues to be unjustifiably slow. After the end of the war in 1995, the Tudjman government issued some 19,300 decisions authorizing use of abandoned Serb houses by temporary occupants. As of late 2003, more than 3,300 of these houses were still occupied, effectively blocking the return of their rightful owners.⁷

State attorneys are still not using expedited court procedures for resolving repossession cases, and verdicts are not executed promptly. The OSCE Mission to Croatia has found that, in 2002 and 2003, state attorneys took six months on average to initiate lawsuits at municipal courts after receiving cases from the Directorate for Expellees, Returnees, and Refugees (ODPR). Delays were often due to the incomplete documentation provided by ODPR. It took a further four more months, on average, before the first hearing in the case was scheduled. As of February 2004, only 3 to 3.5 percent of all repossession cases transferred to state attorneys, pursuant to the relevant legislation from July 2002, have been concluded.⁸

The actual repossession rate since July 2002 has been higher than 3 percent, because temporary occupants often leave the property before the court proceedings have been completed.⁹ However, the deadlock that results when temporary occupants refuse to vacate remains a problem. During follow-up research in February 2004, Human Rights Watch checked the current status of three repossession cases described in its September 2003 report. All three owners—Dusan Vilenica (from Karlovac),¹⁰ Danilo Stanic (from Gracac),¹¹ and Petar Djuric (from Knin)¹²—have been trying to repossess their homes for six years. As of February 2004, their cases were still pending.¹³

Since the publication of the report Broken Promises in September 2003, OSCE representatives monitoring the return process in the field have told Human Rights Watch that housing authorities and state attorneys in some parts of Croatia, including in Ogulin,¹⁴ Pakrac,¹⁵ and Korenica,¹⁶ are making efforts to speed up the process of repossession. In the key return area of Knin, however, property repossession remained “virtually stalled” as of early March 2004.¹⁷ Lack of movement on repossessions, coupled with the ongoing failure to resolve lost tenancy rights (see below), has hampered returns to Knin. The Serbian Democratic Forum registered 950 returns to Knin during 2003, contrasted with 1,260 in 2002.¹⁸     

In November 2003, the authorities resolved one of the most prominent cases of use of a Serb-owned house for business purposes.¹⁹ The house, in the town of Krnjak, belongs to returnee Petar Kunic. The temporary occupant, Vinko Petrovic, used the house as a restaurant.²⁰ The illegal use of Serb houses for business purposes is particularly striking along the road connecting the capital Zagreb with the Dalmatian coast, where Kunic’s house is also located. The new government should promptly resolve other similar cases.

Overall, the pace of repossession remains slow, because authorities have yet to use the full complement of measures available to vacate Serb houses. Most repossession currently takes place only when Croat occupants of Serb properties are allocated a plot and materials by the authorities to construct a house. By contrast, there has been little or no progress toward the eviction of temporary occupants who own vacated and inhabitable property in Bosnia and Herzegovina. Such occupants are ineligible for alternative accommodation and should be promptly evicted.²¹ State attorneys have initiated eviction procedures in some areas.²² However, the procedures through which courts verify the status of the properties in Bosnia are inefficient. As a result, NGOs and OSCE officials monitoring return on the ground are either unaware of any case of eviction on this basis in the areas they monitor,²³ or have registered only a handful of cases.²⁴

There has been no progress since September 2003 toward amending legislation which blocks repossession within a reasonable timeframe.²⁵ Croatian law still protects family members who lived in the same household before the war and now occupy two or more Serb houses; under the law these occupants are entitled to government-provided alternative accommodation before they can be evicted.²⁶ In a similar vein, temporary occupants who are financially or otherwise able to make other housing arrangements are nonetheless entitled to alternative accommodation prior to eviction.²⁷ 

Looting and Property Destruction

Another lingering problem related to repossession of properties is that temporary occupants often loot and seriously damage Serb-owned houses before vacating them.

The latest information suggests that ODPR officials throughout the country issue oral or written warnings to temporary occupants, to advise them that looting and property destruction are illegal and may lead to a loss of entitlement to housing care.²⁸ In most returnee areas, however, these warnings have failed to prevent the destruction of premises and the looting of furniture.

State prosecutors are mandated under the law to sue temporary occupants who intentionally damage or loot property that has been allocated to them, but organizations monitoring returns have no knowledge of any such prosecutions taking place.²⁹ Serb returnees are unlikely to bring court action themselves: the temporary occupants usually continue to live in the same area, making returnees reluctant to sue. Moreover, court proceedings are expensive, and returnees remain skeptical about their ability to obtain justice before the courts.³⁰

Accommodation of Former Tenancy Rights Holders

Since 2000, the Croatian government has gradually introduced legislation to provide former tenancy rights holders with government housing assistance.³¹ The new government has also undertaken to provide accommodation for all tenancy right holders by the end of 2006. In practice, little progress has been made. Lack of resolution regarding tenancy rights is a key obstacle to the return of Serbs to urban areas, where most of the housing stock was under the regime of tenancy rights.³²

Thousands of families lost tenancy rights in so-called areas of “special state interest” (those occupied by rebel Serbs during the war).³³ The Law on Areas of Special State Concern, as amended in July 2002, provides for housing care for those former tenancy rights holders who do not own property in other parts of Croatia and former Yugoslavia, and who wish to return to Croatia. In practice, however, implementation of this aspect of the law has not even started. The government is still merely collecting applications for housing care from former tenancy right holders.³⁴ 

Some of the obstacles to implementation would be simple to overcome. A number of apartments in towns like Udbina, Licki Osik, Gracac, or Knin, are still empty. With fairly modest investments the government could repair and allocate them to former tenancy rights holders.³⁵ It appears that the apartments have not been used for these purposes because the dissolution of socialist enterprises, which owned the apartments before the war, has left the issue of ownership over the apartments unresolved.³⁶ The government, however, should speed up the process of revision of the ownership status and set out a deadline for its completion.

Elsewhere in Croatia, the implementation of the June 2003 government-subsidized housing program in those areas has yet to begin. More than 23,000 Serb families lost tenancy rights in those areas, which remained under Croatian government control during the war. During 2004, the government will be mainly receiving applications from former tenancy rights holders.³⁷ Even when the implementation of the program begins, however, there are concerns that it may be inaccessible to its purported beneficiaries. The purchase price of the apartments available to former tenancy rights holders is not significantly below the market price. In contrast, those former tenancy right holders whom the government had not divested of tenancy right were able to purchase their apartments for a much lower price.³⁸

The program’s value will be tested during 2004, when government-subsidized housing will be offered for the first time to returnees, according to the Croatian official in charge of returns policies. The official told Human Rights Watch in February 2004 that an unspecified number of newly built state-owned apartments are available in Sisak and Slavonski Brod. During 2004, former tenancy rights holders outside the areas of the special state concern will be given an opportunity to lease or purchase these apartments.³⁹

Reconstruction of Damaged or Destroyed Property

While the government has done impressive work in reconstructing damaged or destroyed ethnic Croat houses, reconstruction assistance to returning Serbs began only at the end of 2002. According to the government, a total of 8,000 housing units had been reconstructed as of early 2004, of which 70 percent belonged to Serbs. The government says that another 9,500 housing units are envisaged for reconstruction before the end of 2004.⁴⁰ 

Current information from the field seems to support the government’s claims that a large number of Serb houses are currently under reconstruction.⁴¹ While belated, the current efforts of the government in reconstructing Serb houses are to be commended.⁴² These efforts clearly benefit return, as manifested by the numbers of returns in Western Slavonia, which had suffered major destruction of properties: mainly due to reconstruction efforts, the number of returnees (around 1,000) in Western Slavonia in 2003 remained at the level of the previous year.⁴³ 

Despite the progress in reconstruction, Serb families continue to face serious obstacles in accessing reconstruction assistance. A number of owners of destroyed or damaged properties are ineligible for reconstruction assistance under the law because their pre-war registered residence does not match the property they now seek to repair. Prior to the war, many Croatian residents had tenancy rights to an apartment as well as a private house, and were usually registered as residing in the apartment.⁴⁴ Having lost the tenancy rights through the blatant violation of pre-1991 laws and the imposition of discriminatory legislation in 1995,⁴⁵ these individuals have been unable to repossess the apartments or receive substitute housing; at the same time, they are barred from receiving reconstruction assistance from the government.⁴⁶

War Crimes Trials

Human Rights Watch remains concerned that Croatia’s judiciary is not currently equipped to handle war crimes cases in a manner that fully respects internationally recognized fair trial standards. Flawed war crimes prosecutions have negative effects on the return of refugees.

There is continuing ethnic bias in war crimes prosecutions. During 2002, for comparable offenses, the OSCE determined that 28 of the 35 persons arrested for war crimes in Croatia were Serbs. Serbs also comprised 114 of 131 of those under judicial investigation; 19 of 32 persons indicted; and 90 of 115 persons on trial. According to the OSCE, this trend appeared to continue in 2003.⁴⁷ While a perfect symmetry in the numbers of war crimes indictees from the two ethnic groups—Serb and Croat—might not reflect the actual number of crimes committed, the disproportion in the number of prosecutions brought against Serbs compared to Croats (a ratio of 5:1, on average) is so large that it strongly suggests discrimination. By way of comparison, the Office of the Prosecutor for the International Criminal Tribunal for the former Yugoslavia has issued just over twice as many indictments against ethnic Serbs as against ethnic Croats (a ratio of 11:5) for crimes committed in the Croatian war.⁴⁸

Human Rights Watch learned in April 2004 that the Croatian State Prosecutor is committed personally to reviewing outstanding war crime indictments and supporting evidence, with a view to dropping those indictments for which no credible evidence against the suspect exists.⁴⁹ This would be a major improvement in this sensitive area. However, a note of caution is warranted since a statewide review of the outstanding war crime indictments has already been ongoing for two years, while abuses of prosecutorial authority have continued unabated.⁵⁰ 

Problems arising from ethnic bias also affect the proceedings at trial stage. In 2002, Serbs represented 47 of 52 persons convicted. Conviction rates were much higher for Serbs than for Croats: 83 per cent of all Serbs put on trial for war crimes (47 of 57) were found guilty, while only 18 per cent of Croats (3 of 17) were convicted.⁵¹

Two recent examples illustrate the problem of ethnic bias in the judiciary. Ivanka Savic, a Croatian Serb woman, was tried before the Vukovar District Court in Croatia and sentenced on January 21, 2004, to four and a half years imprisonment for war crimes. Some of the crimes for which she was convicted—on dubious evidence—include having an ethnic Croat serve and cook for her, and theft. Key legal issues in the case were never examined, including whether the crimes concerned met all the criteria for war crimes, whether there was a nexus between the acts of which the defendant was accused and the armed conflict, and whether other conditions for applying the Fourth Geneva Convention were met. Moreover, while Croatian Serbs have been prosecuted for such crimes, our research has not revealed any cases in which ethnic Croats were prosecuted for war crimes stemming from similar facts.

Svetozar Karan, a Serb returnee to Korenica, was convicted by the District Court in Gospic in July 2003 and sentenced to thirteen years’ imprisonment. The court refused to take into account exculpatory evidence and relied only on contradictory statements of witnesses that linked Karan with people who tortured prisoners of war. The highly politicized judgment by the Gospic district court faulted Karan “and his ancestors” for having been “burden to Croatia in the past 80 years”; the judgment also lamented over the five centuries in which “the accused and his ancestors … together with Turks were coming and destroying Croats.”⁵² 

On February 5, 2004, the Supreme Court of Croatia overruled the sentence and ordered a retrial.⁵³ The judgment was also condemned in the Croatian media. Nonetheless, the Karan judgement reverberated strongly in the refugee community in Serbia and Montenegro, apparently dissuading many from traveling to Korenica and the surrounding areas to visit their homes.⁵⁴ Moreover, there has been no indication that the judge will be reprimanded or disciplined for his overt expression of racial hatred and the abuse of judicial authority.

Enjoyment of Social and Economic Rights

Employment Discrimination

The European Commission’s Stabilisation and Association Report of 2003 stressed the need for the Croatian government to create social and economic conditions aimed at improving the climate for returns and the acceptance of returnees by receiving communities.⁵⁵ There has been little or no progress in tackling the persistent employment discrimination documented by Human Rights Watch in its September 2003 report.⁵⁶ In most areas of return, virtually no Serb returnees are employed in state, municipal, or town-run services and institutions, such as health centers, schools, child-care centers, post offices, or power-supply companies.

The situation is identical in the judiciary, the police, and the state administration, despite the enactment of the Constitutional Law on the Rights of National Minorities in December 2002, which mandates proportional representation of minorities in these areas.⁵⁷ Those few Serbs who do manage to get employment in state or municipal institutions are usually teachers, nurses, or policemen who were displaced within Croatia (in the area of Eastern Slavonia, which remained under Serb control throughout the war), and were already employed there.⁵⁸ For the refugees, returning from Serbia and Montenegro and elsewhere, finding employment in public institutions or the judiciary remains all but impossible.

Serb returnees have been able to find some work in private businesses owned by Croat entrepreneurs, such as a sawmill and a brickyard in Gvozd,⁵⁹ a supermarket and a restaurant in Korenica,⁶⁰ screw factory in Knin,⁶¹ fish processing factory in Gracac,⁶² and the factory producing sparkling-water in Lipik.⁶³ Even in those businesses, the number of employed returnees is in the dozens rather than hundreds. Many among them are employed as seasonal workers only.

Pensions

The new government has yet to establish a new deadline for submitting requests for the validation of work completed between 1991-95 in areas controlled by rebel Serbs. Most refugees were unaware of the first deadline for submitting the claims, between April 1998 and April 1999, and thus missed it.   

Like its predecessor, the new government continues to deny back payment of pension installments for the period after 1991. Those claiming the installments are refugees and returnees who acquired their pensions before the war but did not live in the government-controlled territory when the war began. Most resided in territory controlled by rebel Serbs and received very limited payments from the de-facto authorities.⁶⁴ The Croatian government argues that those limited payments amount to a pension and that the same person cannot receive two pensions for the same period. In October 2003, the government’s legal argument was supported by a European Court of Human Rights decision.⁶⁵ 

The government also refused to provide back payments for the inhabitants of Serb controlled territories between 1995, when Serb-rebels pension payments ceased, and whenever the person resumed receiving the Croatian pension (generally upon return to Croatia) The argument of “double payments” cannot apply to the period after 1995, however.