<<previous  | index  |  next>>

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 Herzegovina²⁰⁰ 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.