INTRODUCTION

Between 300,000 and 350,000 Serbs left their homes in Croatia during the 1991-95 war.This report describes the continued plight of displacement suffered by the Serbs of Croatia and identifies the principal remaining impediments to their return.The most significant problem is the difficulty Serbs face in returning to their pre-war homes.Despite repeated promises, the Croatian government has been unwilling and unable to solve this problem for the vast majority of displaced Serbs.In addition, fear of arbitrary arrest on war-crimes charges and discrimination in employment and pension benefits also deter return.Human Rights Watch believes that these problems are a result of a practice of ethnic discrimination against Serbs by the Croatian government.The report concludes with a list of recommendations to the government of Croatia and the international community to deal with these persistent problems and finally make good on the promise of return.

Precise statistics for how many of the more than 300,000 displaced Serbs have returned do not exist.According to the United Nations High Commissioner for Refugees (UNHCR), by June 2001, between 100,000 and 110,000 Croatian Serbs had returned.[1]The number of returns registered by the Croatian government in November 2002 was 96,500.[2]Both UNHCR and the government figures overrate the actual number of returnees, because, after a short stay in Croatia, many depart again for Serbia and Montenegro or Bosnia and Herzegovina.[3]Among those who stay in Croatia, most are elderly.Families with children rarely decide to return, and, unless the trend changes in the near future, it is likely that within a decade or two, the Serb population in most parts of Croatia will all but disappear.[4]While in 1991 Serbs made up 12.1 percent of Croatia's population, the 2001 census showed their number had fallen to a mere 4.5 percent.[5]

At first sight, one might expect that responsibility for the failure of refugee return lies with the Croatian nationalist parties now holding power locally in many former Serb communities, rather than with the central government currently dominated by moderate political parties.Certainly serious problems persist at the local level: local courts and administrative bodies have failed to evict Croat occupants of houses belonging to returning Serbs; the local police and state prosecutors carry out arrests of Serbs on often-frivolous war-crime charges; and local public enterprises fail to employ returning Serbs.

On closer inspection, however, the role of the central government emerges as equally, if not more, important.Most importantly, the central government has failed to create a political climate conducive to return.This failure has been a disappointment to observers sympathetic to the democratic changes in Croatia at the beginning of the decade.In the parliamentary elections held on January 3, 2000, and the presidential elections of February 7 of the same year, a coalition of parties with a professed strong commitment to democracy and human rights defeated the then-ruling Croatian Democratic Union of the late president Franjo Tudjman.[6]On February 8, 2000, the new government unveiled its legislative program, committing itself to uphold minority rights and to carry out the legislative and administrative changes necessary to facilitate the return of Serb refugees.In April 2000, the new parliament adopted laws on minority languages and education; in June, amendments to the reconstruction law and the law on the so-called "areas of special state concern" for the first time offered the prospect of equal treatment for displaced and refugee Serbs seeking to return to their homes in Croatia.[7]In recognition of Croatia's progress toward democratization, in May 2001, the European Union entered into a Stabilization and Association Agreement with Croatia, establishing favorable economic and trade relations and cooperation in justice and internal affairs.[8]

Notwithstanding the early positive signs, hopes that the new government would truly commit to the return of Serb refugees have remained unfulfilled.The government has never genuinely attempted to build a public atmosphere in which the populace would welcome return of Croatian Serbs.Instead, the authorities have consistently prioritized the needs and rights of ethnic Croats-including Croat refugees from Bosnia-over the rights of Serb refugees and returnees.This official posture both reflects and reinforces public opposition to refugee return.[9]Only in June 2003, eight years after the end of the war, did the Prime Minister of Croatia for the first time publicly invite Serb refugees to return to the country.[10]

The central government has made little headway toward resolving the issue of tenancy rights stripped from tens of thousands of Croatian Serbs during the war.While the government has done impressive work in reconstructing the damaged or destroyed houses of ethnic Croats, reconstruction assistance to returning Serbs began only at the end of 2002.A web of return-related laws and regulations, often mutually exclusive or overlapping, has for years created a legal conundrum utterly incomprehensible to prospective returnees.The competence of various agencies involved in the returns process is also ill-defined, further hindering return.In the words of an international official in Croatia, due to the complicated and contradictory legislation "even an official with the best will in the world finds it difficult to help a Serb who wants to return."[11]The parliament has failed to enact a number of reforms required to facilitate return, and the measures it has adopted have been belated or flawed.

Beyond the unconstructive role of the local and national authorities in Croatia, an additional obstacle to Serb return to Croatia is the attitude of the authorities in Serbia and Montenegro, where many Croatian Serb refugees reside.While paying lip service to the right to return, in practice the authorities of Serbia and Montenegro have subtly discouraged it, or at least kept the issue low on their agenda.Both the national and Serbian governments have shown much greater interest in receiving foreign funds for the integration of refugees in Serbia and Montenegro than in facilitating their return to their country of origin.[12]

Eight years after the end of the war in Croatia, the continued displacement of hundreds of thousands of Croatian Serbs remains one of its most lasting scars.This report surveys the principal impediments to return.Below are recommendations to the Croatian government and the international community to redress this situation.Notwithstanding progress on reform in other areas, to date the government has lacked that essential political leadership to effectively facilitate minority return and rebuild Croatia as a multi-ethnic state.

RECOMMENDATIONS

To the Croatian Government

On Repossession of Property

• Temporary occupants who refuse the housing care of temporary alternative accommodation offered by the government should be evicted after prompt proceedings meeting due process standards.

• Courts should use expedited procedures for resolving repossession cases, irrespective of whether these have been initiated by the state prosecutor or the property owner.

• Temporary occupants' use of Serb houses for business purposes should be promptly eliminated.

• Temporary occupants who use the property only occasionally, while living and working elsewhere, should be deemed multiple occupants and evicted without prior provision of alternative accommodation.

• Where members of a family lived in the same household before the war and now occupy two or more houses of Serb owners, it should be considered a case of multiple occupancy and the temporary occupants should be evicted without prior provision of alternative accommodation.

• Temporary occupants who are determined to be financially or otherwise able to make other housing arrangements should be subject to eviction without prior provision of alternative accommodation.

• The government should vigorously implement the new legislation, which denies entitlement to alternative housing care to temporary occupants who own vacated property in Bosnia and Herzegovina or Serbia and Montenegro.

• If the owner of a sizable property is willing to share it with the temporary occupant, the government should allow the owner to repossess one part of the property for the period of time required to obtain permanent alternative accommodation for the temporary occupant of the remainder of the house.

• The Ministry for Public Works, Reconstruction and Construction should also offer alternative accommodation in nearby municipalities from the one in which the temporary occupant currently lives. Refusal of such accommodation should be deemed as forfeiture of the entitlement to state-provided housing care, and the temporary occupants should be evicted.

• Owners of temporarily occupied property should receive just rent from the state for continued deprivation of the use of property, as well as compensation for deprivation of the use of property in the past.

• The Ministry for Public Works, Reconstruction and Construction should explore the possibility of making arrangements with owners who repossessed their houses but do not use them, whereby these houses could be rented by the state to provide temporary accommodation to those evicted from other properties.

On Tenancy Rights to Socially Owned Properties

• Government authorities should publicly acknowledge the housing problems that have arisen since tenancy rights to socially owned properties were discontinued in 1996, and commit to addressing them.

• Courts should reopen cases of termination of the tenancy rights. Given the circumstances at the time, the courts should adopt a rebuttable presumption that the holders left against their will, which, by virtue of the then applicable legislation, justified the absence from the apartment in excess of the authorized six-month period.

• Where the apartments have not been privatized, the original tenancy rights should be reinstated, and the rights holders should be offered an opportunity to purchase the apartments on terms comparable to other privatizations.

• Where the apartments have not been privatized because they were destroyed after the termination of the pre-war tenancy rights, the pre-war rights holders should be beneficiaries of the building reconstruction or should receive a tenancy right to a similar apartment in another location.

• Where the temporary occupant has privatized the apartments, the former tenancy rights holder should receive a tenancy right to property of equivalent value.

• If the former tenancy rights holder does not choose any of the solutions from the above, he should be given fair compensation.

On Reconstruction

• The government should live up to its commitments to treat all applicants for reconstruction equally; it should ensure that government assistance is provided without discrimination based on ethnicity.

• The government should pressure the county offices to speed up the procedure for assessing the degree of damage and other elements of application processing.

• All county offices for reconstruction should approve requests for reconstruction assistance when the house was destroyed or damaged by "terrorist acts."The Ministry for Public Works, Reconstruction and Construction should vigorously use its oversight power to ensure that county offices abide by its instructions.

• The government should enact laws enabling property owners to sue for pecuniary and non-pecuniary loss when damage or destruction to their homes resulted from acts of violence or terror that the state was under a duty to prevent.

On Looted and Devastated Properties

• Croatia should introduce looting and devastation as criminal offenses, rather than acts prosecutable in civil proceedings.

• In court proceedings, courts should not require that the plaintiffs produce original receipts to prove ownership of stolen items.Statements of witnesses should be considered to create a rebuttable presumption of ownership.

• The Ministry for Public Works, Reconstruction and Construction/ODPR should include a notice or warning to a temporary occupant about the criminal sanctions for looting or devastation.

• State prosecutors should prosecute temporary occupants who intentionally damage or loot property that has been allocated to them.

On War Crimes Prosecutions

• As part of the government's ongoing, statewide review of the outstanding war-crime indictments and supporting evidence, those indictments for which the state prosecutor does not have a prima faciae case should be dropped.

• Given the high number of dropped charges and acquittals in war crimes cases against Serb returnees in recent years, the authorities should in all possible cases pursue provisional release as an alternative to detention of indictees pending trial.

• The government must end discriminatory practices in war crimes prosecutions, and ensure that prosecutions against members of the Serb minority and the Croat majority are treated the same way.

• The government-owned media in Croatia and Serbia and Montenegro should publicize dropped charges against and acquittals or releases of war-crimes suspects, to better inform the public, including Serbs abroad, of the situation facing those who return.

On Employment

• The government should closely monitor employment practices in state institutions and enterprises. Pertinent ministries should intervene in cases in which discrimination on ethnic grounds is apparent.

• The government should end discriminatory practices and ensure fair employment opportunities for Serb returnees in the state administration and state-owned enterprises, if necessary by employing affirmative action policies.

The government should offer tax exemptions and other financial incentives to owners of private businesses who employ minority returnees.

On Pensions

• The government should establish a new deadline for submitting requests for the validation of work completed between 1991-95 in the so-called Republika Srpska Krajina.

• The authorities should decide on the claims for validation that were submitted prior to the last deadline (April 1999).

• The government should relax the requirements for proving 1991-95 employment status, by eliminating the requirement that only witnesses who have validated their own employment status can testify that the applicant was employed in the same company.Witness statements should be considered to create a rebuttable presumption of the applicant's wartime employment.

• The government should pay pensions covering the 1991-95 period to Croatian Serbs who lived outside government-controlled territory during that time.If they were receiving pensions from the Republika Srpska Krajina fund, they should receive pension installments reduced by the amount of such installments received.

To the International Community

• In all appropriate bilateral and multilateral meetings, urge the Croatian authorities to ensure non-discrimination and full respect for the rights of minorities, and to guarantee their right to return.

• Condition enhanced political, military, and trade relations with the government of Croatia on its improving its record in the areas of refugee returns and non-discrimination.

• Increase the level of assistance earmarked for reconstruction of returnee homes damaged or destroyed during the war.

• Monitor Croatian laws governing returns to ensure they are applied effectively and in a non-discriminatory manner.

• In the context of the Stability Pact regional return initiative's Agenda for Regional Action (AREA), ensure that assistance aimed at encouraging and supporting the return of refugees by creating a sustainable economic development in return areas truly benefits those wishing to return rather than reinforce existing ethnic cleavages in society.

The World Bank and the European Bank for Reconstruction and Development should make non-discrimination and the right to return prominent elements of their country assistance strategies.

To the United Nations High Commissioner for Refugees

• Maintain a sufficient presence in Croatia to engage the Croatian authorities on key issues affecting the right to return, including access to housing, pensions, and employment on a non-discriminatory basis.

To the United Nations

• The U.N. treaty bodies (in particular Committee on the Elimination of Racial Discrimination, Human Rights Committee,and Committee on Economic, Social and Cultural Rights) should follow up on the conclusions and recommendations they have issued following their reviews of Croatia and urge the government to make progress in meeting its international treaty obligations, guaranteeing equal treatment of minorities and the right to return.Persistent lack of progress on the part of the Croatian government should, where appropriate, warrant the request for additional information on measures taken by the Croatian government to remedy the shortcomings identified by the U.N. in its compliance with international law.

To the Organization for Security and Cooperation in Europe (OSCE)

• Resist downsizing the OSCE presence in Croatia and reducing the number of offices in the country until visible improvements in the return process and the treatment of minorities have been achieved.

• The OSCE presence in Croatia should continue regular and public reporting on conditions and policies related to refugee returns and non-discrimination.

• The Office for Democratic Institutions and Human Rights should appoint a senior official mandated to monitor and enhance the treatment of refugees and displaced persons in Croatia and elsewhere in the OSCE region.

• The High Commissioner on National Minorities should carry out a mission to Croatia to investigate the situation of refugee returnees of ethnic minority origin and press for implementation of any recommendations that such a mission yields.

To the European Union

• Condition full cooperation and partnership under the Community Assistance for Reconstruction, Development and Stabilisation program (CARDS) on measurable progress in the areas of refugee return and non-discrimination.

• Emphasize the necessity of significant progress in the areas of refugee return and non-discrimination in the run-up to the next review of Croatia's implementation of the Stabilisation and Association Agreement, as spelled out in the April 2003 progress report.

• The European Parliament-Croatia Joint Parliamentary Committee should maintain the questions of refugee returns and discrimination high on its agenda and, in particular, promote adequate representation of minorities in Croatia's political landscape.

• Progress on return-including specific demands regarding repossession of homes; resolution of the tenancy right issue; non-discrimination in reconstruction assistance, employment, and pension benefits; and an end to abusive war-crime prosecutions-should be required of Croatia for purposes of satisfaction of the Copenhagen political criteria for any progress on Croatia's E.U. accession application.

To the Council of Europe

The Parliamentary Assembly's post-monitoring dialogue with the Croatian government should emphasize refugee returns and non-discrimination, underscoring that the government's failure to take specific steps to address this persistent problem could result in the reopening of its monitoring procedure.In so doing, the Assembly should take particular note of the Committee of Ministers Reply of September 18, 2001 to the Assembly's Recommendation 1473(2000) on the issue of refugee returns.

Building on Recommendation 1406(1999) on "Return of refugees and displaced persons to their homes in Croatia," and its accompanying report (Doc. 8368), the Parliamentary Assembly's Committee on Migration, Refugees and Demography should appoint a rapporteur to investigate the current situation and treatment of refugee returnees, and produce a report on its findings on the ground.

• The Committee of Ministers should ensure adequate implementation of the recommendations of the European Commission against Racism and Intolerance (ECRI), addressed to the Croatian government in its second report on Croatia, published in July 2001.

• The Commissioner for Human Rights should carry out a visit to Croatia with the view to investigating the situation of refugee returnees and displaced persons in the country.

BACKGROUND: THE RIGHT TO RETURN

People who flee their homes as a result of war are entitled to return to their home areas and property, a right known as the "right to return."The right to return to one's former place of residence is related to the right to return to one's home country.This latter right is expressly recognized in the Universal Declaration of Human Rights and international human rights conventions.[13]The right to return to one's place of origin within one's country, or at least the obligation of states not to impede the return of people to their places of origin, is implied. For example, article 12 of the International Covenant on Civil and Political Rights (ICCPR) recognizes the right to choose freely one's own place of residence, which incorporates the right to return to one's home area.[14]In some cases, the right to return to one's former place of residence is also supported by the right to family reunification and to protection for the family.Recognizing these various rights, the U.N. Sub-Commission on the Promotion and Protection of Human Rights has reaffirmed "the right of all refugees ... and internally displaced persons to return to their homes and places of habitual residence in their country and/or place of origin, should they so wish."[15]Numerous resolutions of the U.N. General Assembly and of the Security Council as well as several international peace agreements also recognize the right to return to one's home or property.[16]

International law provides for restitution as a remedy for persons who have lost their homes or property because they were victims of war crimes, crimes against humanity or other serious human rights violations.The Commission on Human Rights has often recognized the need for property restitution as an effective remedy for forced displacement.[17]In 1996, the European Court of Human Rights recognized the right of a displaced Greek Cypriot to reclaim her property, despite the fact that she had not resided there for twenty-two years.[18]The Rome Statute of the International Criminal Court (ICC) authorizes restitution as a remedy for victims of war crimes and other international offenses, stating that "[t]he Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation."[19]

When displaced persons are unable to return to their homes because their property has been destroyed or claims against a current occupant are unsuccessful, they are entitled to compensation.International human rights instruments do not specifically mention compensation for deprivation of the use of property, but the right to compensation is embraced in the right to an effective remedy for human rights abuse, contained in ICCPR article 2(3).[20]In the Cyprus case mentioned above, the European Court of Human Rights recognized the plaintiff's right to compensation for the years that she had been denied access to her property.[21]

While the ethnic Serbs displaced during and after the war in Croatia have a right to return to their homes and receive compensation for their losses, it is important that this right is implemented in a manner that does not cause additional human rights abuses.The Tudjman government had brought ethnic Croat populations to the territories formerly inhabited by Serbs, and many of those ethnic Croats now live in the former homes of Serb refugees and displaced persons.The right to repossess private property must be balanced against any rights these secondary occupiers may have in domestic or international law, using impartial and efficient procedural safeguards.[22]In Bosnia and Herzegovina, property claims administrators have attempted to resolve these disputes in a manner that respects the rights of the second occupier as well as the first possessor.[23]

The government of Croatia has a key role to play in fulfilling the right of ethnic Serb refugees to return.This report discusses in detail the domestic laws of Croatia and their adherence to international standards, as well as the implementation of those laws since the end of the war in 1995 up to the present.

REPOSSESSION OF PROPERTY

Occupied property, along with destroyed property and cancelled tenancy rights over socially-owned apartments, is the main impediment to the return of displaced Serbs to their homes in Croatia.In a UNHCR-sponsored survey conducted among refugees from Croatia currently residing in Serbia and Montenegro, 90 percent of the respondents said that they faced problems repossessing their property in Croatia.[24]The authorities at different levels of government in Croatia-central, county, and local-have pursued policies that severely limit the ability of Serb returnees to reoccupy their pre-war houses and apartments.

The majority of returnees in Croatia interviewed by Human Rights Watch said that other members of their families would return to Croatia if they could get a job and repossess their homes.A woman in Korenica, who has been unable to repossess her family home since 1997, said that her two sons would return from Serbia and Republika Srpska, because "they don't have a job there either";[25] a returnee to Knin stated that his brother would like to return from Serbia, but it was impossible because his house near Knin was devastated;[26] an elderly woman from a village near Knin said that her son, daughter-in-law, and three grandchildren would immediately return from Serbia if their house were vacated.[27]

In late 2001 and early 2002 the government repeatedly stated that it would facilitate the repossession of all Serb houses by the end of 2002.[28]The Action Plan for implementation of repossession of property by the end of 2002, adopted by the Croatian government in December 2001, also included this commitment.[29]As the deadline approached, it became increasingly clear that the stated goal would not be achieved.Government officials started to talk in mid-2002 about the end of the year as a deadline for issuance of administrative decisions on return of property, rather than for the actual physical repossession of property by the owners.Major legislative changes in July 2002 made this new and less ambitious commitment explicit, stating that by the end of 2002 the government would issue decisions on return of property.If by that time the applying owner were not to physically repossess the property, the law obligates the government to pay him or her an unspecified compensation, at an unspecified time.[30]As this report went to press in August 2003, even this latest promise remained unfulfilled.The following discussion details the laws, policies, and practices that have for years impeded returnees from repossessing their property.

Property Rights Under Croatian Law

Croatian Serbs left their properties in two large waves during the first half of the 1990s.On the eve of the war and in its early days in 1991, many Serbs left properties located in government-controlled territory.Those who lived in the Serb-controlled parts fled four years later, in 1995, as a result of the Croatian army offensives "Flash" and "Storm," aimed at regaining control of Serb-held lands in Western Slavonia and Krajina.[31]

In September 1995, the Croatian government adopted the 1995 Law on Temporary Takeover and Administration Of Specified Property (1995 Law on Temporary Takeover), pertaining to the status of abandoned property.The law provided that the Republic of Croatia would administer the abandoned property.[32]Commissions for temporary takeover and administration of property, at municipal and town level, could allocate the property to various categories of people: refugees and displaced persons; returnees; war invalids; families of perished and missing Croatian soldiers; and, "other citizens who perform activities necessary for the security, reconstruction and development of the previously occupied territory."[33]

A year after the enactment of the 1995 Law on Temporary Takeover, parliament passed the Law on Areas of Special State Concern, which specifically dealt with the areas previously controlled by the Serb rebels, where most of the Serb-owned property is located.The new law reiterated the authority of the state to allocate abandoned private property to refugees and certain other groups.[34]The 1995 Law on Temporary Takeover was the legal basis for allocation of a significant majority of Serb properties to temporary occupants.[35]

Croatian law has persistently favored those who were allocated abandoned Serb homes over their returning owners.The 1995 Law on Temporary Takeover provided that legal occupants could be evicted from Serb houses only if the local authorities provided adequate alternative accommodation for them, in Croatia, often referred to as "housing care."[36]In a decision rendered in September 1997, the Constitutional Court of Croatia struck down this provision as unconstitutional; the Court observed that the provision contained no deadline for the reinstatement of the owner, which could prevent him from exercising his ownership rights protected by article 48(1) of the Croatian constitution.[37]In July 1998, parliament repealed the 1995 Law on Temporary Takeover[38] but in the same month enacted the Program for Return and Housing Care of Expelled Persons, Refugees, and Displaced Persons (1998 Program for Return),[39] containing an identical provision that made temporary occupants safe from eviction as long as a local housing commission failed to provide alternative accommodation for them.[40]Moreover, the Program limited alternative accommodation to houses or apartments owned by the State,[41] and it stopped short of defining "adequate" alternative accommodation, which temporary occupants would have no right to reject.In the same vein, the 1998 Program for Return prohibited temporary occupants from inhabiting more than one home, but gave no guidelines on what constituted proscribed "multiple occupancy."[42]As is detailed in this report, the local housing commissions and courts interpreted these vague laws in a manner most prejudicial to the interests of returning refugees.

In July 2002, the Croatian parliament adopted amendments to the Law on Areas of Special State Concern, repealing the key provisions of the 1998 Program for Return and making some progress toward securing returnees' property rights.[43]The amendments disbanded the inefficient local housing commissions and transferred decision-making from the local level to the central government.[44]Instead of the housing commissions, now the state prosecutor has responsibility for filing lawsuits against temporary users who refuse to vacate occupied property.[45]Moreover, the property owner is, for the first time in return-related laws, authorized to bring a lawsuit in order to protect his ownership rights.[46]The amendments also introduced the concept of temporary alternative accommodation for temporary occupants for whom the authorities are unable to provide more permanent accommodation."[47]Finally, the July 2002 amendments provided that owners or protected renters of vacated and inhabitable property in the territory of the former Yugoslavia are not entitled to housing care in Croatia.[48]These new provisions should provide a basis to accelerate evictions from occupied houses.

Nonetheless, the July 2002 amendments failed to address a number of other issues that have had a direct impact on the repossession of property: the financial ability of the temporary occupant to rent alternative accommodation; the temporary occupancy of several homes by members of a family that lived together before the war; temporary occupants' occasional use of property; temporary occupants' refusal to use properties jointly with the owner; and, deadlines by which the government should provide alternative accommodation to temporary owners and free the properties for the owners.In addition, the law in itself is not a guarantee that the agencies in charge of implementing it-the Ministry for Public Works, Construction and Reconstruction, the State Prosecutor, and the courts-will implement it with the requisite determination that has been all but completely absent in the previous period.As is detailed below, the first year of the new law's implementation has seen no improvement in the repossession of property.

Impediments to Repossession of Property

Municipal housing commissions, established under the 1995 Law on Temporary Takeover,[49] assigned approximately 18,500 abandoned properties to temporary occupants between 1995 and 1998, when the Croatian parliament repealed the law.[50]Virtually any Croat could get a decision authorizing use of abandoned property.Years later, thousands of Serb properties remain occupied by Croat refugees from Bosnia and Herzegovina and Serbia and Montenegro, Croats displaced from other parts of Croatia during the war, and Croats who had housing elsewhere in Croatia but were given abandoned Serb property under the law's catch-all rubric of "other citizens who perform [necessary] activities."In July 2003, according to the government, 5,200 Serb properties that had been allocated by virtue of the 1995 Law on Temporary Takeover were still occupied.[51]

Croatian law roughly divides those currently living in Serb houses in two groups:lawful temporary occupants entitled to alternative accommodation prior to eviction, and unlawful temporary occupants who do not enjoy this right.The government has considered up to 15 percent of the temporary occupancies cases of either illegal (unauthorized) occupancy[52] or "multiple occupancy," the latter being the cases in which the government has determined that the occupants possess other accommodations to which they could move.[53]Consideration of only those cases in which the temporary occupancy was authorized by the government in the first place certainly understates the problem of illegal occupancy, since hundreds, perhaps thousands, of Serb-owned houses were occupied without a government decision ever authorizing that use.In addition, hundreds of cases are not considered cases of multiple or unlawful occupancy of Serb property, although any reasonable standard should warrant such determination. The following discussion describes these various categories of current occupants of Serb homes and in each case details the different ways in which Croatian law has been manipulated to bar repossession of Serb homes.

Problems Relating to Legal Occupants' Right to Alternative Accommodation

Croatian law has in the postwar period consistently maintained the right of lawful temporary occupants to receive government-provided alternative accommodation prior to eviction.This right has proved a significant obstacle to returnees' repossession of their property.The 1998 Program for Return did not set forth any time limit within which the local housing commissions had to find alternative accommodations for a temporary occupant.In practice, housing commissions simply failed to offer such accommodation or to force temporary occupants to accept it when they did, and temporary occupants continued to occupy Serb property indefinitely.The owners had no rights under the law to initiate proceedings against the housing commissions for failing to offer alternative accommodation to temporary occupants.Although the July 2002 legal reform shifted responsibility for identifying alternative accommodation to the Ministry for Public Works, Reconstruction and Construction/Directorate for Expellees, Returnees and Refugees (usually referred to as "ODPR"), efforts to relocate temporary occupants have not improved significantly.

During the period that local housing commissions had responsibility for relocating temporary occupants, they often explained their failure by arguing that alternative housing was lacking.But, as a general rule, the commissions defined alternative accommodation very narrowly and neglected creative options to house temporary occupants.Temporary occupants could in some cases, for example, temporarily share property with Serb owners, at least in the cases in which the house comprises two or more floors or flats.In other cases, temporary occupants could be required to move into vacant houses or apartments in neighboring communities.The housing commissions did not generally try these options, nor did the central government ever suggest them as a matter of policy.

The 1998 Program for Return failed to address situations where houses were large enough to accommodate both the owner and the temporary occupant, and the owner wished to share the house until such time as proper alternative accommodation was found for the occupant.This led to absurd situations in which the temporary occupant used only one part of a spacious house, and the owner, unable to move into the remaining part, lived elsewhere with friends and relatives, paid rent as a tenant, or lived in a collective center (a government-built settlement consisting of prefabricated huts).

In a case registered by the Croatian Ombudsman, the housing commission in Hrvatska Kostajnica refused to allow a returnee, identified by the Ombudsman as "V.K.," to use an uninhabited floor of his own house in the town.In a letter to the Ombudsman, the commission wrote that the owner could not use any part of the house as long as the temporary user was on the property.Also, according to the commission, since the temporary user had a small child, "it would not be desirable that V.K. should disturb the family with respect to the restitution of the property."[54]

In June 2002, Human Right Watch observed the court proceedings on repossession of another property, in which the defendants-a Bosnian Croat wife and her Muslim husband, occupants of a three-story Serb house in Karlovac-explained that they opposed sharing the house temporarily with the owner because, in the husband's words, "He cannot live with us.We were at war with such like him for four years."The owner, Dusan Vilenica, returned to Karlovac in 1998 and has been unable to reoccupy the house or move into its uninhabited parts since.

The housing commissions and courts were equally accommodating of temporary occupants unwilling to move to a neighboring community.In fact, all housing commissions and courts interpreted the law as if the vacant or illegally occupied property in other municipalities did not constitute alternative accommodation, and therefore they refused to order the temporary occupant to move there.

There was nothing in the law that prevented housing commissions from providing alternative accommodation in areas outside the municipality in which temporary occupants were currently living.If alternative accommodation in the municipality was lacking, the 1998 Program for Return obligated housing commissions to inform the government's agencies for displaced persons and refugees of this fact.[55]The agencies might have taken this cue to start looking into possibilities for accommodation in other parts of Croatia.Housing commissions themselves could have established data-exchange mechanisms, and municipalities with surpluses in housing could have offered space to municipalities lacking sufficient housing.

These arrangements were never realized in practice.Temporary occupants were usually unwilling to leave the areas they had chosen as their new place of residence, and the authorities made no attempt to relocate them.For example, during Human Rights Watch's visit to the area in 2001, a number of municipality-owned apartments in Udbina were vacant.[56]This housing space could have been used as alternative accommodation for temporary occupants in nearby Korenica, where housing space was lacking.A member of the then-housing commission in Korenica told Human Rights Watch in June 2002 that "we can suggest to the temporary occupants to move into those apartments, but they don't want to go there.And they have the final word."[57]This official acknowledged that the housing commissions in Korenica and Udbina did not have a mechanism for information exchange, so the commission in Korenica did not even know which apartments in Udbina were empty.

In another characteristic case, a married Bosnian Croat couple living in the village of Orlic, near Knin, told Human Rights Watch that they did not want to vacate the Serb house they were occupying because the house offered as alternative accommodation to them and to the family of their daughter was several miles further away from Knin.The family also found it unacceptable that the offered house did not have two separate apartments.[58]

As is evident from the cases detailed above, the housing commissions persistently failed to confront temporary occupants over their unrealistically high standards for "adequate" alternative accommodations.In one striking case, the temporary occupant of the house of Petar Cubrilo, returnee to Gracac, rejected three offers for alternative accommodation.On the second occasion, in July 2001, she objected that two faucets, the shower, and a window frame were not in a state she found satisfactory.After five years of waiting, Petar Cubrilo finally repossessed his house in February 2002.[59]

In February 2001, the government adopted a decree that for the first time stipulated that a person who rejects an offer of adequate housing care should lose any right to such assistance.[60]In practice, however, temporary occupants still continued to decide whether the accommodation offered to them was "adequate."At a meeting of the Slunj town council in May 2002, during which the case of Tomislav Turek was discussed,[61] the president of the housing commission told the councilmen: "I asked Turek to say what it is that he wants, so that we can resolve the issue.He does not want alternative accommodation such as an apartment, but a house with a piece of land.I am not sure that we can offer something to him at this stage."[62]

The July 2002 amendments to the Law on Areas of Special State Concern held out the promise that some of the problems relating to relocating temporary occupants would be addressed.Unfortunately, progress in the first year of implementation of the new law has been disappointing.

The amendments were silent on the joint use of houses and the provision of alternative accommodation in other areas, leaving to the implementing authorities-now the Ministry for Public Works in lieu of the housing commissions-the discretion to promote joint use or relocation to alternative accommodation in other areas.As of mid-2003, however, little had been done to pursue these more expansive approaches to alternative accommodation.

The July 2002 amendments to the Law on Areas of Special State Concern also stipulated that a temporary occupant who rejects the permanent housing care or the temporary accommodation offered to him forfeits the right to housing care.[63]A year after the adoption of the amendments, nothing suggests that the authorities enforce this provision and initiate eviction procedures against uncooperative beneficiaries.The temporary occupants do not see the threat of losing the entitlement to alternative accommodation as serious.[64]One temporary occupant told Human Rights Watch as a matter of course that he had refused to move from a comfortable Serb house in the vicinity of Karlovac to the [wooden hut] settlement "Gaza" in the town.[65]In addition, the process in which the authorities offer alternative accommodation to temporary occupants lacks transparency, because regional offices of the Ministry for Public Works, Reconstruction and Construction/ODPR often offer the accommodation only verbally.[66]The property owners, as well as the international agencies and Croatian nongovernmental organizations (NGOs) monitoring the repossession of properties, cannot effectively track down such offers and react when the authorities fail to evict the obstructionist occupants.

Finding alternative accommodation for temporary occupants and reinstating returning owners in their property boils down to a question of political will on the part of the responsible authorities.In Eastern Slavonia-where the temporary occupants were Serbs and the displaced were Croats-the local housing commissions and courts have evicted thousands of Serbs from Croat properties since 1998.Many of those evicted moved to other properties, where they paid rents as tenants or shared housing space with friends and relatives, lived in collective centers, or bought a house or an apartment.[67]The practice in Eastern Slavonia shows that it is entirely possible to return occupied properties to their owners, when there is the requisite political will.

Unauthorized and Unlawful Use of Property

Although, as discussed above, provision of alternative accommodation to lawful occupants of Serb homes has proven a significant impediment to Serb return, repossession of a home unlawfully occupied has also been difficult.As detailed in this section, three types of unlawful occupancy have prevented Serb owners from repossessing their properties since the end of the war: use of property without authorization; use of property for purposes other than housing; and, multiple occupancy.Croatian legislation has failed to recognize as unlawful some other circumstances in which the temporary occupant could himself obtain alternative accommodation.Human Rights Watch believes that reasonableness and the practice in neighboring Bosnia and Herzegovina, which faces property problems similar to Croatia's, mandate considering such cases as constituting unlawful occupancy akin to multiple occupancy.The following discussion details the ways in which Croatian laws and practice have barred Serb returnees from repossessing their homes from unlawful occupants and others who should have no right to alternative accommodation prior to eviction.

Use of Property without Authorization

There are many hundreds, perhaps thousands, of cases of individuals who occupy Serb property although they never received a decision authorizing temporary use.[68]These are clear cases of illegal occupancy.Under Croatian law, local housing commissions-until August 2002 the main agency for implementation of laws relating to abandoned property-were under a duty to issue eviction orders promptly in such cases.[69]If users refused to obey and the case reached the court, the court was under an obligation to rule in a shortened procedure and the appeal could not suspend the execution of the decision.[70]In spite of these provisions, however, in the period between June and December 2001 the number of cases identified by the government as unauthorized use of property decreased by only twelve percent, from 803 to 705.[71]Lack of political will accounted for the slow resolution of a problem that was uncontroversial from the legal perspective.

The July 2002 legislation disbanded the local housing commissions and vested the authority to seek evictions with regional ODPRs and state prosecutors.These have not proved to be more effective in evicting illegal occupants than the housing commissions had been (see Eviction Procedures, below).In addition, the state prosecutors do not apply the July 2002 law outside the areas of the special state concern, although in these areas there are also Serb houses illegally occupied by third persons.[72]In such cases, owners can only initiate private lawsuits, which are usually expensive and result in the case dragging before the court for many years.

Use of Property for Purposes Other than Housing

The 1998 Program for Return explicitly stipulated that "any case of illegal use, [] when the [occupant] uses the object for any other purpose than principle accommodation of his/her family, shall be promptly eliminated."[73]There have been, however, numerous cases in which temporary occupants used properties for business or other purposes, and yet the authorities have failed to evict them.

In such cases, the temporary occupants are typically using Serb houses, not to resolve a genuine housing problem, but rather for business operations.A number of temporary occupants, most of whom had settled from other parts of Croatia, have been using Serb houses as restaurants or motels for years.The use of Serb houses for business purposes is particularly striking along the road connecting the capital Zagreb with the Dalmatian coast.This is the main route for hundreds of thousands of tourists who visit Croatia during the summer.

The town of Korenica is located on this road, ten miles from the national park Plitvice Lakes, another tourist attraction.An internal working paper by the OSCE office in Korenica, dated from August 2001, identified eight cases in which temporary occupants used private houses of ethnic Serb returnees for purposes other than accommodation: for example, the house of Milan Zigic was a caf; the house of Neven Jerkovic was transformed into a church; the house of Jovan Rapaic became a pizzeria and video store; and the house of Branko Funduk was used as an office for the private building company "Ante-Gradnja."The OSCE document identified an additional six cases in which the persons allocated abandoned houses kept these empty.A year later, only the six empty houses had been repossessed by their owners.[74]The remaining cases, in which the properties were used as business premises, were still pending.[75]As of June 2003, the only change consisted in Neven Jerkovic having sold his house to the state-run Agency for the Mediation in the Sale of Immovable Properties (Agencija za pravni promet i posredovanje nekretninama-APN).[76]

In fact, Human Rights Watch did not learn of a single case, out of dozens documented throughout Croatia, in which property used for business purposes had been returned to the lawful owner.

A prominent illustrative case is that of Ivan Kovac, a Bosnian-born Croat who lived as an immigrant in Australia, until he came to Croatia in 1995.Since 1997, Kovac has run a restaurant in Gracac in a home owned by Danilo Stanic, a Serb.Stanic and his wife returned to Gracac in 1998, but the local housing commission ignored their repeated requests that the commission evict Kovac.[77]In July 2002, pursuant to Stanic's private lawsuit, Gracac municipal court ordered that Kovac vacate the part of the house used as a restaurant,[78] but the restaurant continued operating as of June 2003, pending a court decision on Kovac's appeal.[79]

Multiple Occupancy and Other Circumstances that Should be Considered Unlawful

The 1998 Program for Return, which until July 2002 was the main legal source for repossession of the occupied property, stated that multiple occupancy was contrary to the law, but it gave no guidelines on what constituted multiple occupancy.[80]

In neighboring Bosnia and Herzegovina, the housing laws imposed by the Office of the High Representative (OHR) defined several categories of multiple occupants, including a temporary user (of a home of a displaced person or a refugee) who can safely repossess a livable house or apartment in which he lived, without owning it, before the war; or a temporary user who owns another livable home occupied by him or a member of his original household to which they could return; a temporary user whose parents or members of household occupy another housing unit in the same city, municipality, or place; and, a person who rejects alternative accommodation or aid in reconstruction of his home, offered by the authorities.[81]

In Croatia, the housing commissions and courts interpreted the concept of multiple occupancy in the narrowest sense, as a situation in which the temporary occupant, in addition to occupying a home of a refugee or a displaced person, owns another livable house or an apartment, most frequently one that has been reconstructed with state funds.According to the Croatian authorities, temporary occupants who use homes only periodically while regularly residing elsewhere are not considered multiple occupants.Moreover, those who before the war lived as one family in a single household and then moved into two or more Serb houses are not considered multiple occupants, as long as different members of the same family received certificates authorizing them to use different houses.Similarly, those who are determined to be financially or otherwise able to make other alternative housing arrangements are entitled to continuously occupy another person's house.Under the July 2002 amendments to the Law on Areas of Special State Concern all of these situations remain legal, with the temporary occupants entitled to housing care or temporary alternative accommodation before they will be expected to vacate a Serb-owned house.The only improvement the law brings is in regards to those who repossessed their houses or apartments in Bosnia and Herzegovina, but who continue to live in a Serb house in Croatia: they are now considered multiple occupants.The following discussion describes how the Croatian government's continued failure to recognize these various forms of "multiple occupancy" disadvantages Serb returnees in their efforts to repossess their property.

Occasional Use of Property by the Temporary Occupant

The 1998 Program for Return did not provide for eviction of temporary occupants who used the property assigned to them only periodically.Some temporary occupants of Serb homes in fact keep the house empty, while living and working elsewhere.Housing commissions, relying on the 1998 Program for Return, failed to take any action against these occupants. The July 2002 amendments to the law on areas of special state concern do not address the issue.

In a typical case, returnee Simeuna Trisic (age 76) from the village of Orlic, near Knin, could not enter her property from 1997 to 2002, although the supposed temporary occupants, a Bosnian Croat family, had since late 2000 been reportedly spending most of their time abroad.[82]Trisic returned to her apartment only in January 2002, after the Croat family definitively left the country.[83]

Family Split

Another form of multiple occupancy considered legal in Croatia involves cases of young men and women who lived with their parents before the war, moved into Serb houses during or after the war, and continue to live in them.In numerous cases these persons have now established their own families and refuse to vacate the Serb property they currently occupy.

Housing commissions failed to issue eviction orders in any such cases.The 2001 Annual Report of the Croatian Ombudsman reported a case from Petrinja where, in a letter to the Ombudsman, the housing commission conceded that the temporary occupant lived in his parents' house before the war, but "he has his own family now, with four members," and therefore could not be evicted before the authorities provided alternative housing for him.[84]

Human Rights Watch learned about a number of cases in which an extended Croat family occupied two or more Serb houses.In one such case, in 1995, the family of Bosnian Croat Bozo Juko was allocated a Serb house of 140 square meters in Licko Petrovo Selo.His son and two daughters have since married, and the Korenica housing commission allocated one Serb house to each of them, each a minimum 100 square meters in size.[85]Bozo Juko and each of his children are still entitled to alternative accommodation and the Serb owners of the four homes this extended family occupies are unable to repossess their homes until they get it.[86]

Formally, such cases do not constitute multiple occupancy, because different persons are designated as occupants of different housing units.Even where the family split resulted in occupation of several large houses-as in the example of Bozo Juko-the housing commissions had no legal ground to evict the temporary occupants without first providing them with alternative accommodation.The Ministry for Public Works, Reconstruction and Construction, in charge of implementation of the housing legislation after the July 2002 amendments, faces the same constraint.

Ownership of Additional Property In Bosnia

More than half the temporary occupants of Serb property are Bosnian Croats who came to Croatia as refugees during the war.[87]A significant proportion of them still possess property in Bosnia; many others sold property in Bosnia, the proceeds of which could finance acquisition of property or a tenancy in Croatia.

In June 2001, after reviewing the status of occupied properties in the country, the Croatian government announced for the first time that "families who in B[osnia]-H[erzegovina] received reconstruction or repossessed property shall not be beneficiaries of the provision to alternative accommodation."[88]The Action Plan for Implementation of Repossession of Property by the End of 2002, which the cabinet adopted in December 2001, stipulated that Bosnian Croats who had vacant property in Bosnia should not retain the right to housing in Croatia.[89]Nonetheless, throughout this period there was no law stipulating that temporary occupants who repossessed property in Bosnia were multiple occupants.On the contrary, the Law on Areas of Special State Concern stipulated that the government had to provide for "housing care" for all temporary occupants except those who owned another apartment or family house in Croatia.[90]Implicitly, the law provided that if a temporary occupant owned a house abroad, he was nonetheless entitled to housing care prior to eviction.In practice, housing commissions and courts did not consider such cases multiple occupancy.

In July 2002, the amended Law on Areas of Special State Concern finally spelled out that these cases do constitute illegal multiple occupancy.The law specifies that the government does not have to provide alternative housing for those temporary occupants of property who are owners or protected renters of a vacated and inhabitable house or apartment in the territory of the former Yugoslavia, or who sold or gave away the house or the apartment after October 1991.[91]Many Croats from Bosnia and Herzegovina or Serbia and Montenegro are unlikely to return to live in these countries, but they could rent or sell their properties there and use the funds to provide for accommodation in Croatia.

Although this amendment to the Law on Areas of Special State Concern represents a welcome step, its impact has been very limited. During a June 2003 follow-up mission in Croatia, Human Rights Watch heard of only seven cases, all in the town of Vojnic, in which the regional office of the Ministry for Public Works, Reconstruction and Construction/ODPR notified temporary occupants that they should vacate the house because they have livable properties in Bosnia and Herzegovina.[92]Elsewhere, the temporary occupants who possess such properties in Bosnia or have sold them continue to freely occupy Serb houses in Croatia.[93]

Since the amendment came into force, temporary occupants who have applied for housing care with the regional ODPR offices have been required to enclose declarations, made under penalty before a notary public, that they do not own a house or an apartment and have not sold any since October 1991.[94]The Ministry has yet to effectively check the statements declaring the lack of housing in other parts of the former Yugoslavia, and to take action upon obtaining any such information.In some cases in the past OSCE offices in Croatia have informally obtained pertinent information from OSCE offices in Bosnia, but local Croatian authorities have refused to accept it.[95]In December 2002, the Bosnian Ministry for Human Rights and Refugees agreed to submit to the Croatian Ministry for Public Works, Reconstruction and Construction/ODPR information on reconstructed properties in Bosnia; the Bosnian ministry was not, however, in possession of a complete database on other properties repossessed by owners.[96]The Housing Verification and Monitoring unit (HVM) in Bosnia and Herzegovina has also submitted information about repossessed Bosnian properties to the Croatian Ministry for Public Works, Construction and Reconstruction/ODPR, which it could use to identify illegal multiple occupants.[97]A spokesperson for the Croatian Ministry for Public Works, Construction and Reconstruction told Human Rights Watch that the HVM findings require additional verification by the Bosnian Ministry for Human Rights and Refugees, in order to serve as a piece of information potentially relevant and admissible in court.The spokesperson explained that eviction for those with property in Bosnia had been slow in coming because of the time-consuming verification procedure and the lack of a centralized database at the Bosnian Ministry for Human Rights and Refugees.[98]

The Croatian government's exclusive reliance on the Bosnian Ministry for Human Rights and Refugees is unjustified.The Ministry for Public Works, Reconstruction and Construction/ODPR should give due consideration to OSCE and HVM data, along with information from the housing commissions in Bosnia and Herzegovina, or the local land-registry offices.Some owners of occupied property have also provided photos showing that the occupant's house in Bosnia is inhabitable.The government should in principle consider all such evidence as having considerable-even if rebuttable-probative value.[99]

Ability to Provide Independently for Alternative Accommodation

Like those who have sold property in Bosnia, some temporary occupants have the financial means and ability to rent or buy accommodation/housing elsewhere, but they continue to occupy Serb houses instead.At the same time, the Serb owners-most of whom are impoverished-pay rent to live in someone else's house or apartment, or live in one of the several collective centers for returnees in Croatia.Neither the 1998 Program for Return nor the amended Law on Areas of Special State Concern addresses such cases.As with other lawful temporary occupants, those who could afford to provide for their own alternative housing are nonetheless entitled to receive that assistance from the state before vacating the home they occupy.The Croatian authorities' failure to consider such cases unlawful thus impedes Serb repossession of their homes.

Eviction Procedures

Under the 1998 Program for Return, returning property owners could apply to local housing commissions for reinstatement of their property, and the housing commissions were authorized to issue decisions canceling earlier decisions on allocation of abandoned property.[100]As previously noted, however, legal temporary occupants were not required to vacate the property until the housing commissions provided them with alternative accommodation.[101]Once the commission found such accommodation, it was supposed to inform the temporary occupants of the deadline by which they would be required to vacate the property.If the temporary occupants failed to vacate by the deadline date, according to the law, the housing commission was duty bound to file a lawsuit for eviction within seven days.

The 1998 Program for Return specified further that occupants using property in breach of the law did not enjoy the right to alternative accommodation.[102]Within fifteen days after finding out about a case of illegal or multiple occupancy, the housing commissions were obliged to order eviction from the property.If the user refused to obey, the housing commission had a duty to file a lawsuit before the municipal court, although the law set no deadline by which such cases should be filed.[103]

In either case, when the municipal court received the lawsuit it was supposed to rule in a shortened procedure; the law provided that the decision would become effective immediately, and any appeal would not suspend the execution.[104]The housing commission had to request the execution from the court.[105]

Although the eviction procedure specified or established in the July 2002 amendments to the Law on Areas of Special State Concern introduces some new actors in the eviction process-state prosecutors and the Ministry for Public Works, Reconstruction and Construction/Directorate for Expellees, Returnees and Refugees (ODPR)-the basic procedure remains unchanged.Once the Ministry for Public Works, Reconstruction and Construction/ODPR provides alternative accommodation, the temporary occupant has to vacate the property within fifteen or ninety days, depending on the type of alternative accommodation arrangement.If the temporary occupant fails to vacate, the state prosecutor has to file a lawsuit for eviction within fifteen days.The court has an obligation to rule in a shortened procedure.[106]However, the amended Law on Areas of Special State Concern contains no deadline by which the government should provide housing care or temporary accommodation to temporary owners.This means that to trigger the eviction procedures may again take months, if not years.

The law, as amended in July 2002 provides further that illegal occupants, who are not entitled to alternative accommodation, should be sued within sixty days after the state prosecutor receives relevant documentation from the Ministry for Public Works, Reconstruction and Construction/ODPR.The deadline for bringing a lawsuit against a multiple occupant (whose property has been reconstructed by state funds) is thirty days.Again, the court procedure is shortened.[107]

In the four years during which the Program for Return governed repossession procedures (1998-2002), few evictions were effected.A May 2002 report by the OSCE mission in Croatia notes that "in the majority of cases where occupants have disobeyed administrative orders to vacate occupied properties, the authorities have not sought eviction orders in court."[108]In the sixteen municipalities of Western Slavonia, for example between 1998 and September 2001, local housing commissions allegedly took an eviction case to court on only one occasion.[109]Likewise in Zadar, as of July 2001, the housing commission had identified ninety-four cases of illegal occupancy, but it had filed only eleven cases with Zadar's municipal court.[110]

In the few cases that went to court on the basis of the Program of Return and yielded an eviction order, the housing commission often postponed indefinitely the next step of requesting that the court enforce the eviction order.[111]Even if the commission requested execution of the eviction order, the court was authorized to suspend the process if the situation of the temporary occupant made "it probable that the execution would cause him irreparable or hardly reparable damage or that postponement is necessary to avoid violence."[112]

Under the July 2002 amendments, state prosecutors have taken over the proceedings initiated by the disbanded housing commissions.[113]The prosecutor must rely in the first instance, however, on the Ministry for Public Works/ODPR for documentation of cases appropriate for eviction.Although the now defunct housing commissions handed over relevant documentation to the Ministry for Public Works/ODPR by September 2002,[114] the ministry was still in the process of transferring cases to the state prosecutor as late as February 2003, and in some counties, such as the Sibensko-Kninska county, even in April.[115]In a number of key return areas that Human Rights Watch visited in June 2003, nongovernmental and international organizations were unaware of any case in which the state prosecutor had initiated eviction procedures in court,[116] or knew of only a handful of such cases.[117]

Thus, the first year of the implementation of the July 2002 amendments has seen no improvement in the repossession of property.The authorities still avoid evicting those temporary occupants who are not entitled to housing care or refuse alternative accommodation, and decline to use temporary accommodation as a transitional step for the temporary occupants who are entitled to permanent alternative accommodation (housing care).A June 2003 report by the OSCE and the UNHCR concludes that "the average of return of occupied properties per month is even lower than in the period prior to the adoption of the Amendments."[118]In the municipality of Vojnic, only seven houses had been returned to their owners in the first half of 2003, out of 200 outstanding requests.[119]In Benkovac, out of 118 cases of occupied property known to the Dalmatian Solidarity Committee as of February 2003, five had been resolved by end-April.[120]In Plaski, there were forty-one outstanding repossession claims in August 2002 and thirty-seven in May 2003.[121]When repossession occurs, it is more often due to the temporary occupant's own efforts to find other housing than a result of the government's involvement.[122]The government has focused on two methods of facilitating repossession-provision of housing care for the temporary occupants or reconstruction of their property.Both methods have limited application, as the falling repossession rate illustrates.

Owners' Suits Against Temporary Occupants

Before the beginning of 2002, most courts in Croatia allowed only the housing commissions to file lawsuits for eviction of temporary occupants who had originally obtained official permission to use the property.Owners were unable to seek a legal remedy for violations of their right to peaceful enjoyment of property.

In excluding such cases, the courts, especially in the central and southern parts of Croatia, ignored the Law on Ownership and Other Real Property Rights, which grants owners access to courts when they are prevented from using their property.[123]Instead, they relied on the 1998 Program for Return, which provided only that the housing commissions could sue for eviction from the houses once declared abandoned and then allocated to temporary occupants.

The courts' interpretation was reinforced by an August 1999 memorandum from the president of the Supreme Court of the Republic of Croatia to all county courts in Croatia instructing them that the 1998 Program for Return should be implemented instead of the Law on Ownership and Other Real Property Rights.The memorandum stated that "the owner is not competent to file a claim for the eviction of a person who took possession of this property on the basis of a [decision] of the housing commission.In an action for eviction the owner may have only the position of an intervener on the side of the plaintiff (housing commission)."[124]

Croatian human rights groups, Serb associations, and the OSCE criticized this approach as incompatible with respect for the right of property.At the beginning of 2002, the Croatian Supreme Court had come to accept that the competence of the housing commissions to seek eviction of the temporary occupants does not preclude the owner from seeking the eviction himself.Abandoning the position from the August 1999 letter of its president, the Court took the position that the lower courts should process lawsuits filed by the owners against temporary occupants.[125]

The Supreme Court's change of position came too late for numerous owners who had been worn out by years of futile efforts to repossess their property.In the one case in which Human Rights Watch was able to obtain a copy of a Supreme Court decision reflecting its new position on the ability of the owner to sue, the disillusioned co-owners sold their house near Karlovac two months after receiving the decision.[126]

In contrast to other parts of Croatia, in some parts of politically more moderate Western Slavonia, courts not only have accepted owners' lawsuits against temporary occupants but have also often granted the request.The courts considered that the Law on Ownership and Other Real Property Rights entitled the owner to limit any other person from possession and use of his property.In this view, since July 1998, when the 1995 Law on Temporary Takeover ceased to exist, the government has had no competence over the property.[127]These courts have held that owners do not have any obligation toward temporary occupants and their right to repossess the property is independent of the provision of alternative accommodation for temporary occupants.[128]The obligation taken by the government to provide alternative accommodation was to be resolved between the government and the temporary occupants, but not at the expense of the dispossessed owners.[129]

In general, the judgments in these jurisdictions in Western Slavonia have been implemented, in some cases even with the assistance of the police.[130]The state usually provided alternative accommodation to temporary occupants before they vacated, but provision of such accommodation was not requested by the court, and it did not significantly delay the reinstatement.[131]In most cases, the state offered the evicted temporary occupants the so-called APN houses.[132]

In other parts of Croatia, even where courts have accepted private lawsuits and decided in favor of the owner, their judgments have established that temporary occupants should vacate the property only when alternative accommodation is provided for them.[133]A memorandum by the law office of Rozman & Oredic mentions four such cases in the Karlovac area, in which the office represented the plaintiffs; the courts rendered the judgments in their favor in February 2002, but it was only in March and April 2003 that three plaintiffs managed to repossess their homes, once the temporary occupants found alternative accommodation, with state assistance or through their own initiative.The fourth plaintiff was still unable to move into her house as of mid-August 2003.[134]

The July 2002 amendments to the Law on Areas of Special State Concern explicitly authorize owners to sue temporary occupants, independent from the state prosecutor's actions.[135]The amendments fail to clarify, however, whether the courts should follow the Law on Ownership and Other Real Property Rights and order eviction irrespective of the availability of alternative housing care, or impose such conditions in reliance on the Law on Areas of Special State Concern.One year after the enactment of the amendments, court practice has been to resort to the housing care provisions in the July 2002 law and condition eviction on the provision of alternative accommodation for the temporary occupant.[136]Thus, although the amended law now gives owners the right to sue, this prerogative remains without any practical effect.

Looting And Devastation

In cases in which temporary occupants do vacate houses, looting and devastation of the house prior to their departure is a regular occurrence.A lawyer working on property repossession cases in Western Slavonia told Human Rights Watch that he was unaware of a single case in which a Serb refugee returned to an undamaged house.[137]A member of the housing commission in Korenica knew of only one case, out of 200 repossessions between the end of the war and June 2002, in which the returnee found the house in such a condition that he was able to stay overnight.[138]

Human Rights Watch investigated a typical case that occurred in the town of Knin.Petar Djuric returned to Knin in 1997.Since a family of Croat refugees from Bosnia occupied his house, Djuric found accommodation with relatives in a nearby village.On August 8, 2000, Djuric learned that the Croat family was about to vacate his house.The next day, Djuric and two members of the Knin housing commission inspected the house and found it emptied of usable furniture, windows, doors, toilet bowls, boilers, and other items.[139]The house was uninhabitable, and Djuric had no means to repair it, so he started looking for donor assistance.On August 10 or 11, however, another Croat family took possession of his house without any authorization, and the authorities have shown no willingness to evict them.[140]In August 2001, when Human Rights Watch interviewed Petar Djuric, he lived with relatives in a village ten miles away.In June 2002, Djuric's lawyer told Human Rights Watch that Djuric was still unable to return to his house;[141] the situation was unchanged as of June 2003.[142]

The 1995 Law on Temporary Takeover provided that the local housing commissions established under that law were required to make inventory of the property at the time of its allocation to temporary occupants.[143]Owners who wish to sue for looting and devastation of property are unable to obtain these inventories, primarily because in practice they were rarely made.Where the inventories do exist, they fail to describe in detail the condition of the property or to list the pieces of furniture and other items in the house.[144]

A great majority of owners who repossess their property do not even try to initiate court proceedings for compensation of damage or for the criminal act of looting.Former temporary occupants usually continue to live in the same area, and the returnees are afraid or feel uncomfortable to sue them.Also, court proceedings are expensive, and returnees feel that chances for obtaining justice through such proceedings are nil.In Korenica and Knin, local and international officials told Human Rights Watch that as of the end of 2002, no returnee had ever initiated court proceedings on this basis.[145]A lawyer at the OSCE office in Pakrac was not aware of any such case in Western Slavonia either.[146]

The relatively few cases filed for compensation for looting appear to be nearly always, if not always, unsuccessful.In two years of monitoring return to Croatia, Human Rights Watch has not heard of a single case in which Serb returnees have successfully sought such compensation.In one case in which a returnee to Croatia sued, the court required the plaintiff to prove ownership of the stolen items with the original receipts, even where decades had passed since the piece of furniture or other item was bought.The court's assumption was that the temporary occupant was the owner of the items, and the burden was on the property owner to prove the opposite.[147]In other cases, the plaintiffs were unable to prove that the last temporary occupant, and not somebody else, had emptied the house of the furniture and appliances.[148]

Croatian returnees to Eastern Slavonia, to the houses previously occupied by Serbs, have faced a similar problem, and in most cases have failed to get compensation from the temporary occupants.[149]The failure of the government to enforce the law on behalf of majority Croats as well as for minority Serbs is of little relevance to those who have lost property.The government cannot ignore devastation and theft just because it has been a regular occurrence in all parts of the country.

Under the July 2002 amendments to the Law on Areas of Special State Concern, state prosecutors have an obligation to sue for looting or devastation of property when the temporary occupant declines to compensate the owner.[150]As of June 2003, Human Rights Watch interlocutors in nongovernmental organizations and the OSCE were unaware of any case in which a state prosecutor had initiated a lawsuit for damages.The beginning of such a practice could conceivably affect the conduct of departing occupants.In the few areas in which regional ODPRs have started to admonish the occupants in writing that they risk prosecution for damaging the property, looting and devastation have reportedly decreased.[151]Actual prosecution, and introduction of criminal prosecution in lieu of lawsuits for damages, could only reinforce such comportment.

Repossession of Property by Ethnic Croats in Eastern Slavonia

The experience of displaced Serbs trying to return to their pre-war homes in Croatia contrasts sharply with that of displaced Croats returning home to Vukovar and other parts of Eastern Slavonia, Baranja and Western Sirmium (collectively referred to hereafter as Eastern Slavonia), near the border with the Federal Republic of Yugoslavia, which were under Serb control during the war.Specifically, Serb temporary occupants have been rapidly evicted from Croat homes, even when no alternative accommodation was provided for them.

During the war, local Serb authorities expelled around 80,000 Croats to other parts of the country.[152]At the same time, thousands of Serbs from Croatia who fled from the government-controlled territory settled in Eastern Slavonia-around 50,000 of them as of the end of war in 1995.[153]They moved into the houses of the expelled Croats.The then-Serb authorities in Eastern Slavonia issued them decisions on temporary use of property, similar to the practice in the areas controlled by the central government.[154]

After the war, the Serb population remained in the area.A temporary U.N. administration was established to administer the area before it was returned to the Croatian government.In January 1998, Eastern Slavonia was fully reintegrated into the Croatian state.The 1997 Operational Agreement on Return stipulated that displaced Serbs occupying Croat property could only be removed from it once alternative accommodation was found for them.[155]However, in the second half of 1998, when Croats began to return to the region, courts started to evict Serb temporary occupants without providing alternative accommodation.[156]At the same time, Serb owners in other parts of the country were-and still are-unable to repossess their homes under similar circumstances.What became evident was a practice of ethnic discrimination against Serbs at the state level in the process of administering the post-war property regime.

After 1998, a majority of Serb temporary occupants left the area, and, according to local Serb leaders, less than 5,000 of them were still in Eastern Slavonia in 2001.[157]Citing a Croatian Ministry for Public Works' estimate, a May 2001 OSCE report states that not more than 3,465 displaced Serbs remained in the region.[158]

The widespread evictions of Serb temporary occupants in Eastern Slavonia are legally based on the government's refusal to recognize wartime decisions for temporary use issued by the Serb authorities of the so-called Republika Srpska Krajina, to which the area belonged.[159]In a typical case, on November 19, 1999, the Municipal Court in Vukovar ordered Petar Pajic, a Serb, to move out of the house of Milan Kordic, a Croat then living as a displaced person on the Adriatic coast.Pajic had received a decision on the temporary use of Kordic's apartment in June 1992.The court found that the decision, "being an act of an occupying power, cannot authorize possession of another person's property."The court concluded: "The owner can request repossession of his property and he does not have to wait for the person in possession of his property to be provided other adequate accommodation."[160]The Vukovar county court eventually confirmed the municipal court's decision and Milan Kordic repossessed his house.[161]

The authorities have been very efficient in evicting Serb occupants of Croat properties, and by the second half of 2001 the process was more or less completed.[162]The Serbs who came to Eastern Slavonia during the war and still live in the area-up to 5,000 of them-have moved to other houses or apartments that they bought or rent, or to government-run collective centers.For a tiny fraction of them, the authorities secured alternative accommodation in so-called APN houses.[163]

In this manner, the authorities have discriminated against enjoyment of the basic human rights to property and a place to live.Ethnic Croats in other parts of Croatia enjoy an almost absolute protection from eviction, while ethnic Serbs in Eastern Slavonia have been evicted promptly without regard for the availability of alternative accommodation or other considerations.

TENANCY RIGHTS

Before the war, tens of thousands of urban Serbs lived in apartments owned by the state or state enterprises, often referred to as socially owned apartments.The right to use a socially owned apartment-frequently referred to as the right of tenancy-was a real property right, and in most aspects it amounted to ownership, except that holders of tenancy rights could not sell the right and the state could terminate their rights in certain narrow circumstances.During the war and immediately afterward, the government terminated tens of thousands of tenancy rights belonging to displaced Serbs.[164]Ever since the end of the war, it has been virtually impossible for these persons to repossess their apartments, get other homes as a substitute, or receive compensation for the past and current deprivation of the use of the possessions.Tenancy rights have been the issue in which the attitude of the post-Tudjman government most resembled that of its nationalistic predecessor.The consistent failure to address the problem of lost tenancy rights has substantially hampered the process of refugee return, particularly to the cities.

Termination of Tenancy Rights

Some 23,700 tenancy rights held by Croatian Serbs were terminated in court proceedings during and after the war.[165]In four out of five cases, the termination was based on article 99 of the pre-war Law on Housing Relations, providing that tenancy rights were to be terminated if the rights holder was absent from the apartment for longer than six months without a justified reason.[166]The state or the state enterprises, as the owners of the apartments, initiated court proceedings for termination of tenancy rights, and in most cases the courts ruled in their favor.

The court decisions terminating tenancy rights were in most cases both substantively and procedurally flawed.Although most of the displaced fled in the face of a real threat to their safety, the courts did not find that this justified their absence in excess of six months.In other cases Serbs were forcibly expelled from their apartments.[167]Even when that was the case, and the former tenancy right holders asked for the re-opening of the proceedings after the war, courts only exceptionally struck down the wartime termination decisions.[168]

In almost all cases in which tenancy rights of Serbs were terminated, the tenancy right holders were absent from the court proceedings.[169]In most cases, they were not even aware that the proceedings were taking place; in still other cases, they were unable to return to the area to attend the proceeding.The courts appointed, ex officio, "guardians for special cases" (staratelj) to represent the tenancy right holders' interests in the proceedings.In practice, however, the appointed representatives did not present any evidence in favor of the tenancy right holders, did not make any effort, or failed, to get in touch with the departed tenancy right holders, and often failed to lodge an appeal on the court decision canceling the rights.[170]

In addition to those who lost their tenancy rights in court proceedings, thousands of tenancy rights ceased to exist by virtue of a law enacted in September 1995.The law stipulated that tenancy rights in the areas previously held by Serb rebels would be terminated if the tenants did not return to the apartment within ninety days after the law became effective.[171]Only a month earlier, after Operation Storm, hundreds of thousands of Serbs had fled from Croatia; many elderly Serbs who had stayed were killed.[172]It was obvious that a genuine fear of insecurity would prevent Serb refugees from returning within ninety days to repossess their apartments.

During and after the war, the state and the state enterprises allocated the apartments left by displaced Serbs to Croat displaced persons and refugees, or to other individuals.In the areas controlled by the government during the war, the new occupants acquired tenancy rights in place of their predecessors; in the areas previously held by Serb rebels, the new occupants became protected lease holders under the Law on Lease of Apartments in Liberated Areas, enacted in September 1995.

As with the repossession of property by its pre-war owners, practice relating to tenancy rights in Croatia has varied along ethnic lines.Ethnic Serbs who had left their apartments lost tenancy rights.In contrast, the state enabled ethnic Croats who had left their apartments to preserve their tenancy rights.In the areas controlled by the Serb rebels during the war and abandoned during the 1995 operation Storm, ethnic Croats were able to return to their empty pre-war homes within the ninety days prescribed by the 1995 Law on Lease of Apartments in Liberated Areas.In the area administered in the immediate post-war period by the United Nations Transitional Administration for Eastern Slavonia (UNTAES) in Croatia's east, when returnees-most of them ethnic Croats-request reinstatement, the courts in the area have treated them as "constructive owners" and ordered eviction of the temporary occupants, most of them ethnic Serbs.[173]Finally, in the areas controlled by the government during the war, ethnic Croats as a rule stayed in their apartments and the companies owning the apartments could not in any event request termination of their tenancy rights.

Tenancy rights to socially owned apartments ceased to exist in Croatia on November 5, 1996, when a new law on the lease of apartments came into force.Since then, the legal regime over the apartments has differed in various parts of Croatia.In each area, however, the law effectively benefited ethnic Croats while indirectly penalizing ethnic Serbs.In the areas controlled by the government during the war, tenancy right holders purchased, at below-market value, the socially-owned apartments they occupied and became owners; among the purchasers were also those (mostly ethnic Croats) who occupied apartments previously held by Serb tenants.In the areas controlled by Serb rebels during the war, the occupants-comprising the Croats who had the right of tenancy before the war and the Croat newcomers who moved into the abandoned Serb apartments-remain protected leasers and pay a below-market rent.The Law on Areas of Special State Concern provides that they can become owners of the state-owned apartments after residing in them continuously for ten years, or, exceptionally, even before the expiration of the ten-year period.[174]

Impediments to Repossessing Apartments Through Courts

The post-Tudjman government has done virtually nothing to address the issue of terminated tenancy rights.The highest representatives of the government have claimed that lost tenancy rights are a non-issue and that the government does not have any obligation toward former tenancy right holders.[175]As detailed in this section, recourse to the courts has been equally unfruitful.Such policy has made return of Serbs to urban areas virtually impossible.

A number of Croatian NGOs and the Norwegian Refugee Council have for years been trying to reverse court decisions terminating tenancy rights.The Law on Civil Procedure provides that proceedings may be reopened under certain circumstances, including when an unlawful act prevented a party from participating in the proceedings; if a party was not represented by a competent person; or if the party is in a position to offer new facts or use new evidence in his favor.[176]

Faced with requests to reopen tenancy right termination cases, courts have as a rule postponed their decision or denied the request.[177]The reopening of a case is generally subject to a five-year deadline that runs from the date that the decision on termination became effective.In most cases, termination occurred more than five years ago.Even if courts overlook this issue, they reject the argument that the former tenancy right holder was not given an opportunity to participate in the tenancy rights termination proceedings, concluding instead that the guardians for special cases protected the rights holders' interests.[178]In other cases, former tenancy right holders have been unable to prove that they were forced to move out of the apartments, because witnesses were reluctant to testify in court.An elderly Serb couple from Nova Gradiska, whom Human Rights Watch interviewed in June 2002 in a collective center in Sisak, left their hometown in 1991 at the beginning of war because of telephone threats and threatening markings at the entrance to the apartment.The couple moved to Banja Luka, in Republika Srpska, Bosnia and Herzegovina.Their tenancy right was cancelled in 1994, but it was only in 1997 that they learned about it.In March 1998, they filed for retrial, but the court in Nova Gradiska denied the request because the applicants were unable to present new facts and new evidence.The wife, R.S. (65), told Human Rights Watch, "A Croat married couple originally agreed to testify and confirm our claims about the threats.But then they told us that they received threats themselves, and they changed their mind."[179]

Given that it is virtually impossible to achieve reinstatement through court proceedings, recent statements by Croatian politicians recommending the judicial path sound like an attempt to shrug off the problem rather than to address it.Then-deputy prime minister Zeljka Antunovic (now Minister of Defense) acknowledged in November 2001 that "there are cases in which tenancy rights were terminated on the basis of erroneous application of the law," and she found it "entirely logical that the higher judicial authorities would decide in favor of these people.There is nothing disputable about it."[180]The practice has not confirmed this laconic judgment, however.In an overwhelming majority of cases courts did not even admit the cases, let alone find erroneous application of article 99 of the Law on Housing Relations.At the same time, former Serb inhabitants of "Republika Srpska Krajina," who fled after the 1995 Operation Storm and lost tenancy rights as a matter of law, are in an even worse position: they cannot even request the courts to strike down earlier court decisions, because these were not made in the first place.

The Government's Failure to Resolve the Tenancy Rights Issue Through Other Means

The government has not come up with any set of initiatives and proposals for the genuine resolution of the tenancy rights issue.The position of the government has all along been that it has no legal obligation toward the former tenancy rights holders.According to the government, the provision of housing assistance, in this context, would not be a form of reparation or substitution for the past dispossession, but rather an act of benevolence.Then-deputy prime minister Antunovic has explained that the state has only a "moral obligation towards all categories of Croatian citizens who lack housing"; this moral obligation extends only to those who "choose Croatia as their home."[181]With regard to those who "wish to cash in their former tenancy rights, and then live who-knows-where in the world, we cannot allow any such abuse."[182]

The Program of Return contained a very weak provision, without any practical effect, specifying that "when possible, the [housing] commission will endeavor to find permanent accommodation for persons who do not own an apartment or house, especially to those who lived in socially-owned apartments."[183]Similarly, a July 2000 amendment of the Law on areas of Special State Concern stipulated that the government would provide housing care to people without an apartment or family house in Croatia, if they lived in the areas of special state concern, or if they lived elsewhere but could contribute to the economic and social development of the areas of special state concern.[184]Former tenancy rights holders, having no apartment or family house in Croatia, were among the purported beneficiaries of this law, but the Law did not give them any priority over other categories in obtaining housing care.Indeed, during a research mission in June 2002, Human Rights Watch did not learn of a single case in which former tenancy rights holders were beneficiaries of the housing care provision contained in the July 2000 amendments.

The most recent amendments to the Law, from July 2002, reiterate the goal of providing housing care in the areas of special state concern to the former inhabitants in the area and other Croatian citizens.[185]The law is still of extremely limited use to the former tenancy right holders.Over 20,000 tenancy rights were terminated in Zagreb, Split, Rijeka, Pula, and other large towns that are not located in the areas of special state concern.The former tenancy right holders are unlikely to settle in the rural environment that predominates in these areas.They may not even qualify for housing care in the areas of special state concern at all, unless there is a need for the ill-defined "contribution to the economic and social development of the areas."[186]Most critically, the former tenancy right holders are on the bottom of the list of priority groups for housing care.The law gives highest priority to the temporary users of claimed private properties, followed by other temporary users.The heterogeneous group of "other housing care applicants," to which former tenancy rights holders belong, rank the last.[187]In a separate document("Rulebook"), the Ministry for Public Works, Reconstruction and Construction established priorities among the "other housing care applicants" in the 2002 amendments; the Rulebook explicitly places former tenancy rights holders at the bottom of the list.[188]Predictably, in the first year of the implementation of the law, not a single Serb former tenancy right holder, either from the areas of the special state concern or from other parts of Croatia, is known to have obtained housing by virtue of the July 2002 law.

Finally, in June 2003, the government adopted a Conclusion on the Housing Care For the Returnees Who Are Not Owners of a House or an Apartment, And Who Lived in Socially-Owned Apartments in the Areas of the Republic of Croatia Outside the Areas of the Special State Concern.[189]These persons, according to the Conclusion, can rent or purchase government-built apartments in Croatia, provided that they definitively return to Croatia and that they do not own, or have not sold after October 1991, a house or an apartment in Croatia or other parts of the former Yugoslavia.[190]The Conclusion clarifies that the beneficiaries can purchase the state-built apartments "in accordance with the Law on the Socially Subsidized Housing Construction" (drustveno poticana stanogradnja).[191]In practical terms, this means that the beneficiaries would have to pay an amount ranging from 15 to 50 percent below the market price.[192]Other former tenancy right holders, whom the government had not divested of the right, had been able to privatize apartments for a far lower price, at about one third of the market value.The purchase at the new rates will be beyond the financial means of most returnees.They are also unlikely to obtain a loan from the bank in order to purchase an apartment, because their income prospects do not guarantee an ability to pay off the loan.[193]

Under the terms of the June 2003 Conclusion, only a minority of the former holders of tenancy rights in the urban areas that remained under Croatian control during the 1991-1995 war will be able to benefit from the socially subsidized housing construction.The government's scheme is clearly not a form of reparation or compensation for the past dispossession, which remain unavailable to Serb former tenancy right holders.

Priority for a Comprehensive Solution of Lost Tenancy Rights

A coalition of nongovernmental organizations in Croatia, joined as the Legal Service Coalition,[194] has devised a set of recommendations to the Croatian government on the just solution of the tenancy rights issue.[195]Human Rights Watch fully supports the recommendations, which are as follows:

1. In those cases in which the apartment has not been purchased by a subsequent holder, former tenancy rights holders should be given priority over the temporary occupants so that:

a)they can purchase the apartment at a reduced price and under the same conditions under which other Croatian citizens were able to buy their apartments, or

b)they are given the status of permanent protected leaser; or

c)the members of the former tenancy rights holder's household, who used the apartment with him, should be given an opportunity to buy the apartment, use it, or lease it in case the holder's tenancy rights have been terminated.

1. If the apartment is uninhabitable due to damage or destruction, the former tenancy rights holder should be given reconstruction assistance or permanent accommodation in a similar apartment owned by the state, with the same opportunities and rights as under 1;
2. If the apartment has been purchased by the subsequent tenancy rights holder, the former holder should be given accommodation in the same locality in a similar apartment owned by the state, with the same opportunities and rights as under 1;
3. If the former tenancy rights holder does not choose any of the solutions from above, he should be given a fair compensation, in accordance with general principles of international law.[196]

COMPENSATION FOR THE USE OF PROPERTY

The Croatian state, through its failure to enforce their property rights and through deprivation of tenancy rights in violation of international human rights law, has effectively deprived both the owners of temporarily occupied property and former tenancy right holders of the use of their property.And it has not compensated them for the violation.

As discussed above, while compensation for deprivation of the use of property is not specifically mentioned in international human rights law, the right to compensation is embraced in the general right to a remedy for human rights abuse, contained in the ICCPR and the ECHR.[197]The jurisprudence of the European Court of Human Rights,[198] the Inter-American Commission on Human Rights,[199] and the Human Rights Chamber in Bosnia and Herzegovina[200] supports claims for compensation.The World Bank also provides for compensation for losses at full replacement cost for persons displaced involuntarily as a result of development projects.[201]

The Croatian constitution provides that limitation on, or deprivation of, ownership rights can be permitted but only for a fee at market rate.[202]Although the limitations on ownership date from the mid-1990s, it was only in 2000 that the parliament enacted a law providing for compensation.Amendments to the Law on Areas of Special State Concern adopted in 2000 established an obligation on the part of the Ministry for Public Works, Reconstruction and Construction to conclude, at owner's request, a lease contract with owners who apply for repossession of the property, but after six months have been unable to repossess the property due to the Ministry's failure to provide alternative accommodation for the temporary occupant.[203]Under such lease agreements, the state would have paid owners a fee for the use of property.This provision pertained only to the privately owned property allocated to temporary owners on the basis of the 1996 Law on Areas of Special State Concern, however, whereas most properties were allocated by virtue of the 1995 Law on Temporary Takeover.During field research in August/September 2001 and June 2002, Human Rights Watch did not come across a single case in which the owners received rent payments from the state for the use of their property.

The amendments to the Law on Areas of Special State Concern from July 2002 obligate the government to compensate the owners who applied for repossession before August 1, 2002, but did not physically repossess it by October 31, 2002, or who applied after August 1 without getting the property back by the end of 2002.[204]This obligation pertains to the property allocated on the basis of the 1995 Law on Temporary Takeover.As of mid-2003, however, applicants had made little headway toward obtaining compensation.Only in May 2003, did the government begin to send compensation agreements (nagodba) to owners, offering a monthly seven Croatian kuna per each square meter of the property's living space, provided that the owner renounces the interest accrued since the law began obligating the government to pay owners compensations.[205]Most owners are reluctant to accept such stipulation, and, as of June 2003, the compensation scheme had yet to effectively start.[206]

The compensation scheme foreseen in the July 2002 amendments would compensate applicants for current lost enjoyment of their property.Croatia's obligation to compensate property owners should also cover the past period in which the government interfered with the individual's use of his property.The OSCE mission in Croatia has endorsed this view.[207]The jurisprudence of the European Court of Human Rights also supports claims for compensation, even if the court has not dealt with an entirely analogous situation.[208]In the judgment on the merits of the case of Loizidou v. Turkey, the Court found that the Turkish government owed compensation to a Greek Cypriot who had been refused access to her land in the Turkish-controlled part of Cyprus since 1974, thus effectively losing all possibilities to use and enjoy her property.In the opinion of the court, the denial of access amounted to interference with the peaceful enjoyment of possession under Protocol No. 1 to the European Convention on Human Rights.The Court explained:

It has not been explained how the need to rehouse displaced Turkish Cypriot refugees in the years following the Turkish intervention in the island in 1974 could justify the complete negation of the applicant's property rights in the form of a total and continuous denial of access.[209]

In the subsequent judgment on just satisfaction, the Court awarded the applicant both pecuniary and nonpecuniary damages, the latter "in respect of the anguish and feelings of helplessness and frustration which the applicant must have experienced over the years in not being able to use her property as she saw fit."[210]

Similarly, the need to house Croats from Bosnia or other parts of Croatia proper in Serb properties does not justify the total and continuous denial of owners' access to the properties, beginning with the moment in which the owner requested repossession.Likewise, the damage caused to owners has both pecuniary and nonpecuniary aspects.

A similar rationale should in principle apply to deprivation of tenancy rights.Meaningful interpretation of Protocol No. 1 to the European Convention of Human Rights and Fundamental Freedoms leads to the conclusion that a tenancy right, while not identical to ownership, is a property interest ("possession") protected by international human rights law.[211]As such, tenancy right holders would be entitled to the peaceful enjoyment of the tenancy right and protection from its deprivation.[212]

Most tenancy rights were terminated before Croatia signed the European Convention for the Protection of Human Rights and Fundamental Freedoms in November 1997.The deprivation of the tenancy rights without compensation may, however, constitute a continuing violation, which would make the European Convention on Human Rights and Protocol I to the Convention applicable to these cases, from the date that the Convention came into force in Croatia.[213]The European Court of Human Rights had found that there had been a continuing interference with the property rights in the case in which the Greek state de facto appropriated an applicant's land twenty-six years before the case was submitted to the court.[214]Similarly, the Human Rights Chamber in Bosnia and Herzegovina found a continuing violation of the right to respect for one's home and the right to the peaceful enjoyment of one's possessions in a case in which the authorities failed to decide in time about the applicant's claim for repossession of an apartment declared abandoned four years earlier, thus preventing him from returning to his apartment.[215]The absence of any legal avenue through which a person could repossess an apartment in Croatia constitutes, if anything, a further violation of property rights.

In the vast majority of cases, tenancy rights in Croatia were terminated in violation of international human rights law.The Croatian government should not only do its utmost to redress that violation in the future: it should also pay fair compensation for the violation in the past, covering the period that started with the former tenancy right holder's attempt to return to the apartment.

RECONSTRUCTION

The precise number of Serb-owned properties destroyed or damaged in the war is not known.As of December 2001, when the deadline for submitting applications for state-funded reconstruction expired, Croatian Serbs had submitted 42,000 applications.[216]However, some owners applied more than once for the same property, and as of June 2003 the Croatian Ministry for Public Works, Reconstruction and Construction was operating with a figure of 26,000 outstanding reconstruction applications.[217]According to the Serbian Democratic Forum, a leading association of Croatian Serbs that has acted as implementing partner for the United Nations High Commissioner for Refugees and has liaised between the Ministry for Public Works and the Serb applicants, a vast majority of the requests pertain to Serb-owned properties.[218]

As of February 2003, the government claimed it had reconstructed 118,580 housing units in Croatia since the end of the war.[219]Statistics on the ethnic composition of the beneficiaries are not available because the government claims it does not differentiate among Croatian citizens on the basis of their ethnicity.[220]This noble rhetoric obscures the small number of Serb houses actually reconstructed by the government.For example, according to the Serb Democratic Forum, as of August 2001 the government had reconstructed 140 Serb houses in twenty-four municipalities in Western Slavonia, out of 4,041 requests.[221]In Donji Lapac, an all-Serb municipality before the war, out of 645 destroyed houses the government had reconstructed only thirteen as of April 2002.[222]In Vukovar, the government had reconstructed some 4,000 houses by the end of 2001, none of them Serb.[223]In Gracac, as of August 2001, the government had not reconstructed a single Serb house, although 1,000 applications had been submitted.[224]As of August 2001, the government had not reconstructed a single Serb home in the part of the Kordun region that stretches between the cities of Karlovac and Slunj, which encompasses several municipalities.[225]

Until recently, it has been almost solely the international community that has financed the reconstruction of Serb houses, with much still to be done.In Western Slavonia, as of August 2001, foreign donors had funded reconstruction of 826 Serb houses, while the government rebuilt 140.[226]In Zadar and the surrounding area, international donors had funded the reconstruction of some 200 to 250 Serb houses as of July 2001, while the OSCE field office in the area had "never seen a single such house rebuilt by the [county] office [for reconstruction]."[227]Moreover, to reduce expenses and liability, international agencies primarily reconstruct those houses that have not been destroyed or severely damaged.Serb owners with severely damaged homes have received little assistance from either domestic or international sources.

The situation began to change in the second half of 2002, when the near-completion of the reconstruction benefiting Croat owners coincided with the beginning of the state-funded reconstruction of Serb houses.The county offices for reconstruction for the first time signed reconstruction contracts with a number of Serb beneficiaries, and in most areas they began the reconstruction as well.In June 2003, the number of heavily damaged or destroyed Serb properties under state-sponsored reconstruction was several times higher than in the entire preceding seven post-war years.For example, the state was reconstructing 840 Serb houses in the five counties in Western Slavonia,[228] 280 houses in Sibensko-Kninska county,[229] 280 in Zadarska county,[230] and 60 in the municipalities of Korenica and Udbina.[231]Deputy Prime Minister Goran Granic stated in mid-June that Serbs own 75 percent of the houses to be reconstructed during 2003.[232]These recent developments represent a welcome improvement in government's approach to reconstruction, previously impeded by discriminatory aid laws and impediments to legal redress described below.

Discriminatory Reconstruction Aid Laws

The slow pace of reconstruction of Serb homes has to a great extent been a function of discriminatory laws.Under the 1996 Law on Reconstruction, only the areas subjected to attacks from Serbian and Montenegrin forces qualified for reconstruction assistance,[233] and only Croatian citizens were entitled to such reconstruction.[234]This meant that damaged or destroyed Serb houses in areas that were under the government's control during the war and were not attacked by Serbian and Montenegrin forces could not be reconstructed, and non-citizens and those unable to prove citizenship (most of them Serbs) could not get reconstruction assistance.

A further basis for discrimination against Serbs in reconstruction assistance was found in the 1996 Law on Reconstruction's limitation of assistance to repair of damage caused "in the war."[235]Through a reference to the Law on War Damage Assessment, the Law on Reconstruction recognized as war damage eligible for reconstruction aid only the damage inflicted by one of the warring parties-"the illegal enemy groups, legal bodies of the Republic of Croatia, or the allies of these groups and bodies."[236]The county reconstruction offices maintained that homes in government-controlled areas had been destroyed by "terrorist acts"[237] whose perpetrators were unknown and could not be considered a "warring party" in the meaning of the term in the Law on War Damage Assessment.In practice, this interpretation of the law had a discriminatory impact, disproportionately barring Serb-owned property from reconstruction assistance.

The new, post-Tudjman government changed the Law on Reconstruction in June 2000.The amendments provided for reconstruction assistance in all areas exposed to destructive activities during the war, irrespective of who carried out the activities.[238]The amendments also granted the right to reconstruction assistance to all those who were residents in 1991, rather than to citizens only.[239]In addition, the amended law purportedly expanded the scope of reconstruction assistance to all properties damaged in Croatia from 1990 to 1998, irrespective of the cause of damage (war activities or "terrorist acts").The amendment specified: "This law regulates reconstruction of destroyed or damaged material goods in the Republic of Croatia which were exposed to destructive activities and effects from the beginning of the Greater Serbian aggression until the completion of the peaceful reintegration [January 1998]."[240]

The amended law continued to refer to the Law on War Damage Assessment for guidance in interpretation of war damage, however.[241]That law, as explained above, could be used to argue that arson or mining of a Serb house was "a terrorist act" and thus its owner was not eligible for assistance, even under the amended reconstruction law.Some county offices for reconstruction seized upon this ambiguity and continued to turn down Serb requests for reconstruction.[242]They claimed that the Law on War Damage Assessment, to which the Law on Reconstruction refers, precluded the responsible county commissions from assessing damage not caused by warring parties.As a result, potential applicants could not obtain official county assessments of the level of damage, a requirement for submission of a reconstruction claim.[243]

Faced with the continued obstruction of a number of county offices, in May 2001, the Minister of Public Works sent written instructions to the county offices demanding that they approve requests for reconstruction assistance even if the house had been destroyed or damaged by a "terrorist act."[244]The ministry now considers all offices cooperative, in that they all approve requests for reconstruction of the damage caused by terrorist acts.[245]

Impediments to Civil Claims for Damaged or Destroyed Property

Before January 1996, Serb owners of houses destroyed or damaged could file a civil claim against the state.Article 180 of the Civil Obligations Act (Zakon o obveznim odnosima) allowed for compensation from the state when property damage or destruction resulted from acts of violence or terror that the State was under a duty to prevent.[246]This provision in the law could have been of particular help to Serbs whose property did not qualify for reconstruction under the 1996 Law on Reconstruction because it was destroyed or damaged by "terrorist acts."In January 1996, the Croatian parliament repealed Article 180 and stayed all pending compensatory damage proceedings until enactment of new pertinent legislation.[247]The Law on Reconstruction adopted two months later in March 1996 rendered it virtually impossible for Serbs to receive government-assisted reconstruction.

Separate amendments adopted in October 1999 suspended all pending cases for compensation of damage caused by members of the Croatian Army.[248]The amendments also required that by May 2000 the government should submit new draft legislation regulating the issue to the parliament.[249]

It took a full seven and a half years before, in July 2003, the parliament finally passed pertinent legislation replacing the repealed Article 180,[250] and three and a half years before the parliament enacted new legislation on damage caused by members of the Croatian Army.[251]These delays appear to have been aimed at divesting Serbs of any remedy for the destruction of their homes and preventing their return.The government has argued that it did not have the budgetary means to compensate those whose property had been destroyed or damaged.[252]

In the judgment in the case Kutic v. Croatia, rendered on March 1, 2002, the European Court of Human Rights found that Croatia had violated the European Convention of Human Rights in respect to the applicants' right to access to court, by suspending compensatory damage proceedings under former article 180.The Court ordered Croatia to pay the applicants Euro 10,000 jointly as non-pecuniary damage.[253]The applicants' house had been destroyed following an explosion in December 1991, and their garage and the adjacent storage room had been destroyed in November 1994, also after an explosion.[254]

Legislation adopted in July 2003 still fails to address monetary compensation claims for property damaged by terrorist acts.The law on liability for damage resulting from such acts limits damage claims to personal injury, and provides that the State should compensate for property destruction or damage only through property reconstruction pursuant to the Law on Reconstruction.[255]Such restriction also pertains to the cases for compensatory damage initiated before January 1996, when Croatia stayed the proceedings.[256]The July 2003 legislation in that way eliminates the actions for damages that had been lodged before January 1996.In addition, the law fails to provide for any compensation in line with the Kutic judgment, for the denial of access to court in the period 1996-2003.

WAR CRIMES ARRESTS

Accountability for war crimes punishes those who have committed atrocities, provides a measure of respect for the victims of serious abuse, and helps societies come to grips with the past and move forward.Human Rights Watch strongly supports the work of the International Criminal Tribunal for the former Yugoslavia (ICTY) and considers it the obligation of the authorities in the territory of the former Yugoslavia to hold accountable those responsible for wartime atrocities.Such accountability efforts must of course comport with international fair trial standards.Unfortunately, to date, many of the Croatian authorities' war-crime prosecutions of Croatian Serbs have been ill-founded, reflecting an apparently discriminatory and abusive exercise of prosecutorial authority that has had a detrimental effect on minority return.

Cases against Croatian Serbs often do not reach the trial stage at all, because the prosecutors drop charges against the arrested person during the investigation.Of the total of forty-one arrests in 1999, 2000, and the first half of 2001, thirty-one persons were released.[257]Of fifty-nine Serbs arrested in 2001, only twenty were in prison as of December 2002, according to the Serb refugee organization Veritas.[258]That many of the charges against Serbs are eventually dropped, might reflect a measure of judicial integrity.Nonetheless, the apparent abuse of prosecutorial discretion by the Croatian authorities has created a perception among Serb refugees that at least some of the arrests and trials are pursued solely to deter return.In addition, only arrests (and not subsequent acquittals) have been publicized, both in Croatia and in Serbia and Montenegro.The thought of a possible arbitrary deprivation of liberty discourages many Serbs from returning.

The number of war crimes arrests of Croatian Serbs increased substantially in 2000-2001 and has been a major deterrent to return for Serb male refugees, most of whom at some stage of the war fought against government forces.In the words of a Croatian Serb who was arrested on war crime charges that were subsequently dropped, "After my arrest and the months I spent in prison, my friends say they are unwilling to take a risk and return.I was thinking about returning, but not anymore."[259]

Many arrests are based on long-standing indictments after years of inactivity.Around 2,000 war crimes indictments were outstanding in the second half of 2001.[260]The indictments were dormant under the government of Franjo Tudjman, but the new government began to act upon these indictments in the second half of 2000.While in 1999-the last year of Tudjman's rule-there were only five war-crime arrests in Croatia,[261] in 2000 the number rose to around twenty,[262] and in 2001, according to Veritas, there were fifty-nine war crimes arrests, of which several took place abroad, on the basis of Interpol arrest warrants.In 2002 the number of arrests fell: as of November, according to Veritas, twenty-seven Croatian Serbs had been arrested on war-crime charges in Croatia, of which nineteen were returnees;[263] the OSCE mission in Croatia identified twenty-eight arrests in 2002, including arrests of fifteen returnees.[264]

The most significant problem with the war crime arrests in the past three years has been that credible evidence against the indictees generally has been lacking.As an international official in Knin observed: "Almost every Serb man, who at the time of the war was between eighteen and sixty years old, wore a uniform at some stage of the war.That makes them [to ethnic Croats] already 'guilty' in some way and creates a pressure.And then, if they hear that somebody was arrested who everyone believes could never commit a crime, or that another person was arrested during his seventh trip back to Croatia, it will definitively have an impact on the person's willingness to return."[265]

The tide of arrests came at the end of 2000, after a decision of the Chief State Prosecutor to task the county prosecutors with reviewing all the war crimes cases that involved arrest warrants that had not been acted upon, although the accused lived in Croatia.[266]While some charges were dropped during the review process,[267] most arrest warrants were confirmed.[268]Subsequently, as detailed below, the police have arrested dozens of returnees without sufficient evidence for bringing charges.

Guilt by Association

A major problem with the war-crime cases against Croatian Serbs has been the use of group indictments that fail to specify an individual defendant's role in the commission of the alleged crime.[269]A number of Serbs have been indicted as a member of the responsible unit, or merely by virtue of being present at the location where a war crime was committed.Often in such cases, when the defendant is arrested and interrogated, it turns out that the prosecution lacks evidence linking him directly to the crime and drops the charges.What remains, however, is the negative effect of the arrest on other male refugees who fought in Serb formations during the war.

Human Rights Watch received a number of reports of apparently ill-founded indictments of large groups of Serb men.In August 2001, Human Rights Watch interviewed two men from a group of twenty-one individuals indicted in 1993 for war crimes in the Sisak area.The indictees were accused of committing crimes as prison guards in the town of Glina during the war.Both men interviewed by Human Rights Watch were returnees.Rade Vekic (41) and Branko Ljiljak (35) were arrested on March 1-2, 2001 and tried between April and July 2001.Vekic and Ljiljak had both worked in the juvenile center that was used as a detention center during the war, but at the time of the abuses neither was working in the center.Of ten prosecution witnesses, none recognized them as being present in the prison.[270]The court acquitted both of the defendants on July 17, 2001.[271]

In another case, Hungarian police arrested Momcilo Draca (35) on May 31, 2001 at a border crossing between Serbia and Montenegro and Hungary.He was one of twenty-seven suspects in killings of Croat civilians in 1991 in the village of Skabrnja.[272]Hungary extradited Draca to Croatia in October 2001.On December 20, 2001, Draca was released after the county prosecutor dropped the war-crime charges.[273]In August 2001, German police in the city of Broemerworde arrested Mile Grbic (42), pursuant to an arrest warrant issued by Croatia and forwarded through Interpol.The German authorities released Grbic in mid-January 2002.[274]On March 4, 2002, the county court in Gospic, Croatia, withdrew the charges against Grbic and fifty-seven other persons contained in a joint indictment.[275]On June 4, 2001, Croatian police arrested Djuro Djuric (47) at a border crossing between Croatia and Bosnia and Herzegovina.Along with thirty-four other Serbs, Djuric was suspected of having participated in the killings of civilians in two villages near Dvor na Uni.[276]Djuric was released on August 17, 2001.[277]

Frequent Acquittals and Dropped Charges

According to the U.N. Commission for Human Rights, in 554 verdicts for war crimes and genocide reached by Croatian courts between 1991 and 1999, 470 individuals were sentenced in absentia.[278]Some Serbs who had been convicted in absentia returned to Croatia and were arrested and retried.In most cases, the defendants have been acquitted after the retrial.

In 1996, a Croatian court sentenced Croatian Serb Sava Grulovic in absentia to serve five years in prison for alleged war crimes.Upon returning to the Knin area in 2000, Grulovic (then 65) was arrested, retried, and acquitted.[279]Dragan Jakovovic (41), sentenced in absentia to twenty years in prison and arrested in February 2001,[280] was released in April 2001 after the state prosecutor amended the charges to armed rebellion, to which an amnesty applies.Natasa Jankovic was sentenced in absentia to six years in prison in 1996, arrested in January 2001, and acquitted after a retrial in June 2001.[281]Zeljko Bjedov, arrested in December 2000, faced retrial in June 2001, during which the 1992 verdict in absentia was overturned due to lack of evidence.

As of July 2001, there had been only three cases in which returnees were found guilty in a retrial following previous conviction in absentia.Dragoljub Vasilijevic, sentenced in 1997 to two-and-a-half years in prison, arrested in October 2000, was sentenced to one year in prison at a retrial in May 2001; Slavko Drobnjak (30), arrested in July 2000 and retried in November that same year, was sentenced to twenty years in prison; and Nebojsa Jelic (40), arrested in April 2000, was retried in November 2000, and sentenced to five years in prison.[282]

The higher number of acquittals than convictions in retrials is not surprising, because a person would be unlikely to return to Croatia if he had indeed committed a war crime.Rather than proving the responsibility of the defendant, an earlier war-crime conviction reached in absentia in Croatia usually indicates little about the extent of the evidence against him.Human rights lawyers in Croatia are nevertheless reluctant to suggest to those who are convinced that they are innocent to return for retrial.The Croatian judiciary is not devoid of political bias, all the more so as the judges appointed after the Tudjman government's purges still hold their posts.In one case, in May 1999, several Serbs from the so-called Sodolovci group voluntarily appeared before the Osijek county court for retrial, only to be convicted again.In November 1999, the Supreme Court annulled the judgment.[283]

Human Rights Watch interviewed Jovanka Nenadovic, a woman from Pakrac, who was arrested in October 2000 and spent three months in detention before the state prosecutor dropped war crimes charges against her.Nenadovic was accused of committing the murders of seven Croatian soldiers in 1991.Her age and physical condition should have signaled to a well-intentioned state prosecutor that the charges were spurious-she was 58 years old at the time of the alleged crime, and she had difficulties moving due to bayonet wounds by Croatian Ustasha (pro-Nazi fascists) in World War II.According to the indictment, "during the investigation a witness stated that he had heard that Jovanka Nenadovic participated in torture of prisoners."[284] Such hearsay was sufficient to keep the elderly woman in prison for three months.

Vaso Gavrilovic, from Dalj, was arrested in January 1999.The Special Rapporteur of the Commission on Human Rights on the situation of human rights in the Federal Republic of Yugoslavia (Serbia and Montenegro), the Republic of Croatia and Bosnia and Herzegovina visited him one month later.[285]In subsequent months, no hearing was held or scheduled, nor did Gavrilovic see a judge or a state prosecutor.A year after the arrest, he was simply told that he was free, without further explanation.[286]Gavrilovic was 70 years old at the time of the arrest; he had refused to flee the area even though his name was on the posters anonymously hung up in Dalj, containing the names of twenty-seven alleged war criminals from the municipality.[287]Although most ill-founded cases end in acquittal or dropped charges, the threat of arrest and prolonged detention is enough to deter return of refugees.

Discriminatory Prosecutions

The perception that war crime prosecutions are manipulated to deter innocent Serbs from returning has been reinforced by the authorities' apparently discriminatory approach to war crime accountability.There are currently 1,467 pending war crimes cases, 99 percent of which involve non-Croat suspects.[288]Starting in 2001, the government has prosecuted ethnic Croats as well as Serbs for war crimes.Still, in 2002, eighteen Serbs and only three Croats were convicted on war crimes charges, while three Serbs and fourteen Croats were acquitted.[289]With one sole exception,[290] Croatian judicial authorities still have not dealt in a credible way with cases in which ethnic Croats were responsible for the killing of dozens of Serbs, as in the cases of the Pakracka Poljana,[291] Sisak,[292] or Korana bridge.[293]The proceedings against Croats so far have as a rule pertained to crimes that resulted in significant loss of lives.[294]In contrast, the Croatian authorities have in some cases indicted Serbs for relatively minor violations of the laws of war, such as the theft of flour from a house (pillage) or the knocking out of a tooth (inhuman act).[295]Depending on the circumstances of the case, such actions could possibly amount to war crimes.However, Human Rights Watch is unaware of any case in which an ethnic Croat was prosecuted on war-crime charges for abuses of this kind. Taken together, these prosecutorial practices amount to discriminatory enforcement of the law.

Alternative: Provisional Release Pending Trial

In the past two years, most arrests and war-crime trials of Serbs have resulted in dropped charges or acquittals.The record warrants greater resort to provisional release of indictees during pre-trial proceedings.Such a policy would reduce the appearance of a manhunt against male Serb returnees, reinforced by the extensive media coverage of every arrest.The risk that the suspect would flee justice unless promptly arrested would seem limited, since the mere fact of his return to Croatia attests to either his innocence or, at minimum, a willingness to have guilt or innocence established in court proceedings.

ENJOYMENT OF SOCIAL AND ECONOMIC RIGHTS

Discrimination suffered by Croatian Serbs in obtaining access to employment, pensions, and other retirement benefits has for many served as an additional powerful deterrent to return to Croatia.As detailed in the following discussion, the Croatian government has in many cases been responsible for the discriminatory treatment of Croatian Serbs, and it has generally failed to combat it.

Discrimination In Employment

One of the principal impediments to return lies is the bleak economic situation in the country.The unemployment rate is around 20 percent.A war-ravaged economy and post-war crony capitalism have made Croatia a country in which "preconditions for transformation of the economy into a viable one were better in 1990 than in 2000."[296]

Further complicating the sustainability of return is the fact that many Serbs lived in economically disadvantaged areas before the war, or in remote areas in which former communist governments built factories based on political, rather than economic, considerations.[297]Even where pre-war employment was high and the economy was functioning, unemployment has been skyrocketing in the post-war period.In Knin for example, out of 30,000 current inhabitants only 3,000 held paid positions in 2001.[298]In nearby Kistanje, where about 700 people worked before the war, in 2001 there were about forty employed individuals, mostly administrative staff at the municipality.[299]In Gracac, 90 percent of able-bodied persons were registered as unemployed at the beginning of 2001.[300]Immediate economic recovery in such areas is unlikely, and employment opportunities for potential young returnees are scant, unless the person is willing to engage in agriculture or cattle raising, or if he speaks a foreign language and finds employment with an international organization working on returns in the area.

Bosko Raskovic, a man in his mid-thirties whose family returned to the village of Raskovici, near Knin, in August 2001, told Human Rights Watch at the time that bleak employment prospects were his main concern.He had to support the family and fund the education of his two daughters, but he had spent his last pennies on obtaining various types of Croatian identity documents.[301]When Human Rights Watch again visited the village in June 2002, Bosko Raskovic and his family had returned to Serbia.

Employment discrimination on ethnic grounds is difficult to prove since unemployment among Croats is also high.A number of returnees told Human Rights Watch, however, that they were explicitly told that they could not get a job because of their ethnicity.

Boja Gajica (53), a Serb returnee to Knin, applied eight times between 1996 and 2000 for the position of nursing attendant, for which she has an associate degree.[302]Each time a Croat candidate, with lower or different qualifications, was selected.[303]On one occasion, the manager of a child-care center allegedly told Ms. Gajica that she would be afraid of the local soldiers and policemen if she employed a Serb.[304]

Ljupce Mandic (55), from Kistanje near Knin, holds an M.S. in electrical engineering and worked in the Knin power supply company before the war.When he made inquiries about reinstatement to his previous job, he was told that "your side lost the war and you can't come back."Mandic continues to work in Serbia, while his wife splits her time between Kistanje and Belgrade.[305]

In some instances it is clear that ethnic affiliation is the determining factor in employment practices.In Sibenik county, to which Knin belongs, the county prefect for educational issues has allegedly made public statements that Serb teachers would not get jobs (allocated by the county council).[306]An unemployed Serb graduate in economics, who applied for fifteen vacancies in Western Slavonia 1995-97, told Human Rights Watch that at the job interviews he was often asked whether he took part in the Homeland War as a defender.[307]As it was overwhelmingly the Croats, and not the Serbs, who fought in the Croatian army against Serb rebels, giving priority to defenders clearly discriminates against Serb applicants.

Human Rights Watch also interviewed returnees who unsuccessfully applied for jobs even though they were the most qualified or the only qualified candidates, as measured by the requirements from the job announcements.The employers in these cases decided to annul the announcements rather than hire the competent Serb applicants.In January 2003, Dusan Karanovic, an occupational safety engineer with fifteen years work experience, applied for a position as chief of the town's fire brigade in nearby Knin.According to Karanovic, the staff of the Knin employment agency informed him that he was the only candidate who had passed the state exam, which was required by the job announcement.In March, however, the Knin town hall notified Karanovic that the job announcement had been cancelled.[308]Seka Tica, an economist with a university degree, applied in June 2002 for a post at the Korenica branch of the Karlovacka Bank.The job announcement specified that the candidate had to have a degree in economics.In July the Bank notified Tica that it had selected another candidate.According to Tica, the other woman, of Croat ethnicity, had told her that she had only a high school degree.In August 2002, the Karlovacka Bank responded to Tica's formal complaint and notified her that the Bank annulled the job announcement, with a vague explanation that the job ad had been "incomplete."[309]In April 2003, according to Tica, during a trial of a case initiated by her against the Karlovacka Bank, the Bank produced a document announcing a vacancy for the same post.This time, however, the announcement stated that the Bank would accept applicants with less than a university degree.[310]

According to the OSCE, in some localities in Croatia-including in Dvor, Grozd, Vojnic, and Hrvatska Kostajnica-Serbs have been the only candidates since November 2002 for judicial vacancies, but the vacancies have remained unfilled.[311]The persistence of vacancies may constitute further evidence of discrimination.

One measure of discrimination is the degree to which state, municipal, or town-run services and institutions employ Serb returnees.In most areas of return, virtually no Serbs are employed in health centers, schools, child-care centers, post offices, courts, police, power-supply companies, customs services, or the local administration.Such is the case of Korenica, for example, including in the nearby national park Plitvice Lakes, which receives thousands of foreign tourists and employs hundreds of people.[312]Around 2,000 Serbs have returned to the area, and few of them have jobs.[313]In Gracac, where 1,500-2,000 Serbs had returned as of August 2001, only one returnee was employed in municipal institutions or enterprises.[314]As of June 2003, there were no Serbs employed in the police and the court in Vojnic, although Serb returnees outnumbered local Croats and Croat settlers by 3,500 to 2,500.[315]In the sixteen municipalities in Western Slavonia, as of August 2001 there was only one person-a nurse in the hospital in Pakrac-working in a state-run institution.[316]

Under the Constitutional Law on the Rights of National Minorities, enacted in December 2002, the State has to ensure proportional representation of minorities in the administration and the judiciary at state, county and municipal level.[317]The obligation to ensure proportional representation does not extend to public institutions, such as schools, universities, and hospitals, or to the police.The lack of legal obligation to pursue adequate minority representation in public institutions and enterprises does not augur well for a marked increase in the employment of Serbs returnees.

Pensions

The government has raised numerous obstacles to enjoyment of pension rights for displaced Serbs.Such obstructionism has been a significant impediment to those refugees who, deprived of pensions in part or altogether, do not have sufficient means to subsist upon return.Between 1995 and 2002 living expenses were significantly lower in Serbia and Montenegro than in Croatia, and it was only natural for such persons to remain in Serbia and Montenegro.

Government Failure To Validate Employment Status Between 1991-95

One significant impediment to return has been the government's unwillingness to validate the number of years of working experience in parts of Croatia controlled by Serb rebels (the so-called Republika Srpska Krajina - RSK) in the period 1991-95.[318]The government has rejected most requests for validation, claiming that the documents of the RSK pension fund, proving employment status, were lost or destroyed, or that the applicant missed the deadline for submitting the documents and other evidence.

Persons adversely affected by these policies are those who had not been retired before the war and who now lack a sufficient number of years of employment for retirement.If they are sixty-five-year-old men, or sixty-year old women, they can acquire the right to an old-age pension instead.The value of such a pension is smaller, however, than that of regular pensions.

Human Rights Watch interviewed a number of returnees who worked in RSK during the war, and most of them did not have the wartime years recognized in their employment status.A head of a human rights organization in Knin told Human Rights Watch that "nobody has had the 1991-95 period recognized; nobody ever will."[319]

Many individuals did not even have a fair chance to submit requests for validation.On April 10, 1998, the government of then President Tudjman issued a decree setting out a one-year deadline for submission of claims for recognition of working time during the war.[320]The claims could have been submitted only if the person had a registered residence in Croatia.[321]Many potential claimants still lived abroad at the time and did not even know about the deadline.[322]They could not meet the deadline and the residence requirement.The current government should issue a new decree with a new deadline.

For those who did apply before April 1999, in many instances it took years before the regional offices of the Croatian Pension Fund made a decision.[323]In most cases, proving employment status was extremely difficult due to stringent conditions set out by the government.The pension fund requests that the applicant shows written proof of wartime payments into the RSK retirement fund, and that two witnesses confirm that the applicant was indeed employed.The demand for cumulative evidence runs contrary to the Law on Pension Insurance, which explicitly states that witness statements can be accepted as the sole evidence of the status of an insured person and the number of years of working experience, when other relevant information cannot be obtained "because of the circumstances caused by the Homeland War."[324]In addition, only those who validated their own employment status and worked in the same company as the applicant can testify.[325]In most cases, applicants could not satisfy these requirements.

Unpaid Pension Installments For the Period After 1991

As described above, the government has been unwilling to validate the employment status and pension documents in RSK for the period 1991-95, where the validation would benefit the applicants who lack the employment years for retirement.At the same time, the authorities are eager to admit as legally relevant the RSK lists of pension installments paid between 1991 and 1995, when the government can use the lists to deny back payment of pension installments for the wartime period.The failure to make these payments adversely affects the financial lot of returnees, many of whom are of retirement age.

Those claiming unpaid pension installments after 1991 are refugees and returnees who acquired their pensions before the war but did not live in the government-controlled territory when the war began.During the war, most of them lived in RSK.These individuals could not receive pensions from the Croatian pension fund because financial transactions between the RSK and the rest of the country were halted.Instead, an RSK pension fund paid them installments that in most cases barely sufficed for a few portions of staple goods

In its initial decision after the war, in July 1996, the Central Service of the Croatian Retirement Fund instructed the regional offices to disburse unpaid installments to the pensioners who lived in the RSK.[326]In some areas, those rare individuals who had the courage to return to their homes in the immediate post-war period did receive installments for the 1991-95 period.[327]Possibly driven by financial constraints, the Retirement Fund suspended the implementation of the instruction in October 1996.In September 1998, the Fund voided altogether the right to installments that the Croatian Retirement Fund had not been paying between 1991 and the year in which the person applied for continued payment of the pension.[328]

The Fund has used the following argument: the RSK "para-fund" had been paying pensions to all pensioners living in its territory; the 1997 Law on Validation validated the decisions authorizing these payments; therefore the pensioners cannot receive new payments for that same period.[329]

This argument is flawed for at least three reasons.Firstly, even if the person was receiving a pension from the RSK para-fund, the Croatian Fund should cover the difference between that small amount and the amount to which the person had been entitled from the Croatian Pension Fund.Secondly, the Fund denies installments not only for the period 1991-95, but also for the period after 1995, up to the date in which the person applied for reinstatement of the pension-even though the RSK para-fund ceased to exist in 1995 and the argument of "double payments" cannot apply.Thirdly, the Croatian Pension Fund often declines to establish facts in individual cases; copies of some of its decisions obtained by Human Rights Watch do not specify the amount of the pension the claimant had been receiving from the RSK para-fund and fail to identify the period in which the RSK payments were made.[330]

Government Failure to Verify Pre-1991 Contributions to Retirement Funds

Compounding their difficulties establishing employment and benefit records for the wartime period, many refugees who lived in the former Republika Srpska Krajina have difficulties proving that they were making payments to the Croatian retirement fund even prior to the war.[331]As a result, they lack a sufficient number of years for retirement, or they can only obtain an old-age pension.

In these cases, regional offices of the national pension fund claim that documents proving payments to the retirement fund before the war had been destroyed or removed during the war.However, as human rights groups dealing with the issue of pensions claim, before the war it was impossible in public enterprises to receive salaries unless the employees paid retirement and social security payroll taxes first.It should therefore be presumed that the person was making the payments.Also, the relevant information on pension contributions was collected in Zagreb, so even if documents from the regional offices are indeed missing, they should be in the possession of the central bureau of the Croatian Retirement Fund.[332]Indeed, a Serbian Democratic Forum lawyer specialized in the issue has been able to use personal connections in the central bureau to obtain information about the "missing years" for a number of interested individuals.[333]

CONCLUSION

Faced with a host of obstacles, many Serb refugees from Croatia have decided not to return to the country.More than three years after the arrival of a post-Tudjman government to power, improvement has been so slow that many have lost their initial hopes for the new government's policies regarding return.In most parts, the returnees have been elderly farmers whose houses were not destroyed or occupied and who receive pensions from the government.In contrast, return to urban areas hardly occurs, primarily because the refugees cannot repossess the apartments in which they lived before the war or obtain substitute housing.Also, lack of employment opportunities and, for men, fear of arbitrary arrests on war crimes charges, prevent the young and middle-aged refugees from returning to either urban or rural areas.

The Croatian government must reform its laws and policies to ensure such returnees an opportunity to repossess their homes or obtain compensation for lost property, and equal access to employment and pension benefits.Until it does so, hundreds of thousands of Croatian Serbs will be unable to realize their right to return home.

ACKNOWLEDGEMENTS

This report was written on the basis of field research carried out in Croatia in August and September 2001, June 2002, and June 2003, and information gathered through ongoing telephone communication.Interviews were conducted with returned refugees, temporary occupants of their houses, Serb civic associations, representatives of the Croatian government and local authorities, and representatives of international governmental organizations and Croatian human rights groups.The report was written by Bogdan Ivanisevic, Human Rights Watch researcher on the former Yugoslavia, who carried out the research, and edited by Elizabeth Andersen, executive director of the Europe and Central Asia division of Human Rights Watch, James Ross, senior legal advisor for Human Rights Watch, Iain Levine, program director for Human Rights Watch, and Alison Parker, acting director of the Refugee Policy division.Johanna Bjorken, consultant to Human Rights Watch, contributed research and reviewed the manuscript.Production assistance was provided by Leslie Smith and Dorit Radzin, associates for the Europe and Central Asia division; Fitzroy Hepkins, mail manager for Human Rights Watch; Andrea Holley; and Veronica Matushaj, photo editor and associate director of creative services for Human Rights Watch.

This report would not have been possible without the help of the many organizations and individuals who shared their knowledge and experiences.Human Rights Watch would like to thank the following organizations and institutions for their assistance throughout Human Rights Watch's research: the Dalmatian Committee of Solidarity, the Serbian Democratic Forum, the Center for Peace, Non-violence and Human Rights - Osijek, the Committee for Human Rights - Karlovac, the Croatian Helsinki Committee for Human Rights, the Organization for Security and Co-operation in Europe Mission to Croatia, the United Nations High Commissioner for Refugees, and the Norwegian Refugee Council.

Human Rights Watch

Europe and Central Asia Division

Human Rights Watch is dedicated to protecting the human rights of people around the world.

We stand with victims and activists to bring offenders to justice, to prevent discrimination, to uphold political freedom and to protect people from inhumane conduct in wartime.

We investigate and expose human rights violations and hold abusers accountable.

We challenge governments and those holding power to end abusive practices and respect international human rights law.

We enlist the public and the international community to support the cause of human rights for all.

The staff includes Kenneth Roth, executive director; Carroll Bogert, associate director; Michele Alexander, development and outreach director; Rory Mungoven, global advocacy director; Barbara Guglielmo, finance and administration director; Lotte Leicht, Brussels office director; Maria Pignataro Nielsen, human resources director; Iain Levine, program director; Wilder Tayler, legal and policy director; and Joanna Weschler, United Nations representative.Jonathan Fanton is the chair of the board.Robert L. Bernstein is the founding chair.

Its Europe and Central Asia division was established in 1978 to monitor and promote domestic and international compliance with the human rights provisions of the 1975 Helsinki Accords.It is affiliated with the International Helsinki Federation for Human Rights, which is based in Vienna, Austria.Elizabeth Andersen is the executive director; Rachel Denber is the deputy director; Veronika Leila Szente Goldston is the advocacy director; Matilda Bogner, Julia Hall, Bogdan Ivanisevic, Diederik Lohman, Acacia Shields, and Jonathan Sugden are researchers; Anna Neistat is the Moscow office director; Sasha Petrov is the Deputy Moscow office Director; Marie Struthers is a consultant; Jane Buchanan is a fellow; Leslie Smith, Emily Letts, Dorit Radzin, Kristina Alessi, and Anna Sinelnikova are associates.Peter Osnos is the chair of the advisory committee and Alice Henkin is vice chair.

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