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.
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
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 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.
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:
164 It is estimated that of all residential properties in urban areas in the former Yugoslavia, 70-80 percent were under the tenancy rights regime. OSCE Mission in Croatia, “Prethodne informacije po pitanju izgubljenih stanarskih prava u Hrvatskoj” (Background Information Concerning Lost Tenancy Rights in Croatia), November 26, 2001 (version in Croatian), p. 2.
165 See Organization for Security and Co-operation in Europe, Mission to Croatia, Status Report No. 12, July 3, 2003, p. 6. The Legal Service Coalition, which includes six leading civic groups and human rights organizations in Croatia, found that 18,567 tenancy rights were cancelled between 1991 and 1998. The figure is based on the information from municipal courts throughout Croatia. The survey did not include Split, the second largest city in Croatia. The cities with the highest number of cancellations were: Zagreb (4,478), Osijek (2,766), Karlovac (1,834), Zadar (1,762), Sisak (1,239), Pula (702), Rijeka (549), Gospic (434), and Slavonski Brod (398).
166 According to the Legal Service Coalition, courts invoked article 99 in 14,752 cases.
167 The Legal Service Coalition, “Circumstances and Consequences of the Tenancy Rights Termination,” press release, December 2000. The OSCE mission in Croatia counts the cases of forcible expulsion into the “hundreds.” OSCE Mission in Croatia, “Prethodne informacije po pitanju izgubljenih stanarskih prava u Hrvatskoj” (Background Information Concerning Lost Tenancy Rights in Croatia), p. 2.
168 One such exceptional case occurred in Osijek, where a number of leading members of the Serb community were expelled from their apartments by force. Human Rights Watch interview with Jaroslav Pecnik, head of the office of the Croatian Helsinki Committee in Osijek, Osijek, September 4, 2001; Human Rights Watch interview with Milos Vojnovic, then-advisor at the Joint Council of Municipalities, Vukovar, September 4, 2001; Human Rights Watch interview with Biserka Milosevic, Center for Peace, Non-Violence and Human Rights – Osijek, Osijek, September 4, 2001.
169 The Legal Services Coalition goes so far as to claim that “the tenancy rights termination procedures were conducted, in 99% of the cases, with no defendant present.” The Legal Service Coalition, “Circumstances and Consequences of the Tenancy Rights Termination,” press release, December 2000.
170 Human Rights Watch interview with Biserka Milosevic, attorney and Program Director at the Center for Peace, Non-Violence and Human Rights, Osijek, September 4, 2001.
171 Law on Lease of Apartments in Liberated Areas, Narodne novine, no. 73/1995, September 27, 1995. There are no reliable estimates on the number of the tenancy rights terminated by virtue of the law. The number was probably smaller than in the areas controlled by the government, where major urban centers are located.
172 Human Rights Watch, “Impunity For Abuses Committed During ‘Operation Storm’ And the Denial of the Right of Refugees to Return to Krajina,” A Human Rights Watch report, August 1996, Vol. 8, No. 13 (D).
173 Human Rights Watch interview with Dusko Simic, Legal Adviser, Norwegian Refugee Council, Vukovar, June 22, 2002. The United Nations Transitional Administration for Eastern Slavonia (UNTAES) administered the region of Eastern Slavonia from the end of 1995 to the beginning of 1998, as part of the transition of authority from local Serb structures to the central government in Zagreb.
174 Law on Areas of Special State Concern (amended and consolidated version), Narodne novine, no. 26/2003, January 28, 2003, article 7(9) and article 7(10).
175 Statement by Lovre Pejkovic, Head of the Directorate for Expellees, Returnees, and Refugees (ODPR) in the Croatian Ministry for Public Works, Reconstruction and Construction, in “Srbi-povratnici u Hrvatsku: Sporno stanarsko pravo” (Serb Returnees to Croatia: Contentious Tenancy Right), Radio Free Europe-Radio Liberty, March 10, 2002 [online], http://www.danas.org/programi/most/2002/03/20020310113941.asp (retrieved December 10, 2002).
176 Law on Civil Proceedings, article 421.
177 As of May 2002, the Norwegian Refugee Council had filed requests to reopen in 417 cases; 162 requests had been rejected for failure to satisfy the criteria for re-opening, and more than 200 cases were pending, of which three quarters for more than six months. Norwegian Refugee Council, Triumph of Form Over Substance? Judicial Termination of Occupancy Rights in the Republic of Croatia and Attempted Legal Remedies, May 18, 2002, p. 9.
178 As detailed above, “guardians” uniformly failed to present evidence in favor of the tenancy rights holders, did not attempt to reach them during the proceedings, and did not appeal against the decisions. See above, “Termination of Tenancy Rights.”
179 Human Rights Watch interview with R.S. and M.S., Sisak, June 9, 2002.
180 Milan Jelovac, “Antunovic: Ne dolazi u obzir obestecenje bivsih stanara” (Antunovic: Compensation for Former Tenants Out of Question), Vjesnik (Zagreb), November 17, 2001 [online], http://www.vjesnik.com/html/2001/11/17/Clanak.asp?r=unu&c=8 (retrieved June 20, 2003) (interview with Zeljka Antunovic).
181 Mile Franicevic, “Zeljka Antunovic: SDP ne nastavlja HDZ-ovu politiku” (Zeljka Antunovic: SPD Does Not Continue the Policy of HDZ), Vjesnik (Zagreb), November 25, 2001 [online], http://www.vjesnik.com/html/2001/11/25/Clanak.asp?r=unu&c=1 (retrieved June 20, 2003).
182 “Antunovic: Ne dolazi u obzir obestecenje bivsih stanara,” Vjesnik (Zagreb).
183 Program for Return, “Procedures of Return,” article 5 (2).
184 Amendments to the Law on Areas of Special State Concern, Narodne Novine, no. 73/2000, July 21, 2000, article 6 (amending article 8). There were two possible forms the housing care could take: provision of a lease of a state-owned apartment or family house, or a construction plot and basic building material for construction of a family house.
185 Law on Areas of Special State Concern (amended and consolidated version), Narodne novine, no. 26/2003, January 28, 2003, article 7. This time, however, the right to housing care does not belong to those who own property in other parts of the former Yugoslavia. By virtue of this provision, former holders of tenancy rights in Croatia who found refuge in FR Yugoslavia (now Serbia and Montenegro) or Bosnia and Herzegovina and at some point acquired property there, cannot benefit from housing care in Croatia. Ibid.
186 The law provides that the Republic of Croatia will stimulate settlement of the individuals from other parts of Croatia who can contribute to the economic and social development of the areas of special state concern. Ibid.
187 Ibid., article 9.
188 Rulebook on the Housing Care Priorities in the Areas of Special State Concern, Narodne novine, no. 116/2002, October 3, 2002, article 3.
189 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, Narodne novine, no. 100/2003, June 17, 2003.
190 Ibid., article 2.
191 Ibid., article 4.
192 OSCE representatives interviewed by Human Rights estimated the price at 15-20 percent below the market price. Watch interviews with OSCE officials in Zagreb and Knin, June 2003. In a letter submitted to Human Rights Watch in June 2003, the Ministry for Public Works, Reconstruction, and Construction maintained that a monthly payment for an apartment purchased through Socially Subsidized Housing Construction was 40-50 percent lower than in the market.
193 Human Rights Watch interview with a representative of the OSCE field office in Knin, June 9, 2003.
194 The following organizations belonged to the Coalition: Center for Peace, Non-violence and Human Rights (Osijek); Center for Peace, Legal Advice and Psycho-social Assistance (Vukovar); Dalmatian Committee of Solidarity (Split); Organization for Civil Initiative (Osijek); Serbian Democratic Forum (Zagreb); and “Baranja”- Association for Peace and Human Rights (Bilje).
195 The mission of the OSCE has put forward a set of proposals very similar to those of the non-governmental organizations. SeeOSCE Mission in Croatia, “Prethodne informacije po pitanju izgubljenih stanarskih prava u Hrvatskoj” (Background Information Concerning Lost Tenancy Rights in Croatia), November 26, 2001 (version in Croatian), p. 8.
196 Legal Service Coalition, Conclusions from a roundtable discussion on Solution of the Problem of the Terminated Tenancy Rights, held in Osijek on December 7, 2000 (on file with Human Rights Watch).