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.
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
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.
216 International Crisis Group, A Half Hearted Welcome: Refugee Returns to Croatia, December 13, 2002, p. 8 (information from the Ministry for Public Works, Reconstruction and Construction).
217 Human Rights Watch telephone interview with Marko Brajko, Assistant Minister of Public Works, Reconstruction, and Construction, June 24, 2003.
218 Human Rights Watch telephone interview with Miroslav Grozdanic, Western Slavonia branch office of the Serbian Democratic Forum, June 24, 2003.
219 “Ove godine jos 24.000 osoba u obnovljenim kucama i stanovima” (This Year, 24,000 More Persons in Reconstructed Houses and Apartments), website of the Ministry for Public Works, Reconstruction and Construction, February 27, 2003, http://www.mjr.hr/stranica.asp?id_stranice=269&trazi=obnova (retrieved June 24, 2003).
220 Ljubomir Herceg, head of the Directorate for Reconstruction in the Ministry made such statement in a newspaper interview in Spring 2002. Milan Jelovac, “Iduce godine obnova 4000 kuca vlasnika srpske nacionalnosti” (Next Year, Reconstruction of 4,000 Houses Owned by Serbs), Vjesnik (Zagreb), April 8, 2002 [online], http://www.vjesnik.com/html/2002/04/08/Clanak.asp?r=unu&c=12 (retrieved June 20, 2003) (interview with Ljubomir Herceg).
221 Serb Democratic Forum, Western Slavonia branch office, Data on Reconstruction, August 2001, on file with Human Rights Watch.
222 Human Rights Watch interview with a representative of the OSCE field office in Korenica, Korenica, June 13, 2001.
223 Human Rights Watch interview with Milos Vojnovic, then-advisor at the Joint Council of Municipalities, Vukovar, September 4, 2001; Ljiljana Pekic, “Jednaki i jednakiji gradjani,” Dnevnik (Novi Sad, FR Yugoslavia), April 28, 2002; Human Rights Watch telephone interview with Sasa Lalic, office of the Croatian Helsinki Committee in Vukovar, January 14, 2003.
224 Human Rights Watch interview with Radmila Andric, head of the Gracac office of the Dalmatian Committee of Solidarity (DOS), Gracac, August 28, 2001. Until the December 2001 deadline for applications for reconstruction assistance, DOS gathered reconstruction applications and submitted them to the county office for reconstruction in Zadar.
225 Human Rights Watch interview with a representative of the OSCE field office in Karlovac, Karlovac, August 29, 2001; Human Rights Watch interview with Djuro Milosevic, Committee for Human Rights, Karlovac, September 3, 2001.
226 Serb Democratic Forum, Pakrac Office, Data on Reconstruction, August 2001 (on file with Human Rights Watch).
227 OSCE Field Office in Zadar, Return and Integration in Zadar, The Balance as Per 19 July 2001, p. 14 (July 2001). The report adds that reconstructed houses belonging to minorities are “allegedly to be found in Zemunik,” a village near Zadar.
228 Human Rights Watch telephone interview with Miroslav Grozdanic, Western Slavonia branch office of the Serbian Democratic Forum, June 24, 2003.
229 Human Rights Watch interview with Jovo Tisma, head of Knin office of the Serbian Democratic Forum, June 9, 2003.
231 Human Rights Watch interview with Nikola Lalic, head of Korenica office of the Serbian Democratic Forum, June 9, 2003. In the previous year, only three houses had been reconstructed, and in 2001 only one. Ibid.
232 Olga Ramljak, “Racan: Srbi, vratite se u svoju domovinu!” (Racan: Serbs, Return To Your Homeland!), Slobodna Dalmacija (Split), June 13, 2003 [online], http://www.slobodnadalmacija.com/20030613/novosti03.asp (retrieved on June 20, 2003).
233 Law on Reconstruction, Narodne novine, no. 24/1996, March 26, 1996, article 1.
234 Ibid., article 4 (1).
236 The Law on Reconstruction stated that “war destruction of, or damage to, material goods, within the meaning of this Law, shall be recognized according to the Law on War Damage Assessment.” (article 9(1)). The Law on War Damage Assessment defines as war damage only the damage caused by “enemy, illegal groups, legal bodies of the Republic of Croatia, and the allies of these groups and bodies, if it was inflicted directly or indirectly during the [period from August 15, 1990, to the cessation of war activities].” Law on War Damage Assessment, Narodne novine, no. 61/1991, November 19, 2001, article 2 (2).
237 The term is not mentioned in either the Law on War Damage Assessment or the Law on Reconstruction, but the county offices for reconstruction routinely use it.
238 Act Amending the Law on Reconstruction, Narodne novine, no. 57/2000, June 9, 2000, article 1 (amending article 1).
239 Ibid., article 3 (amending article 4).
240 Ibid., article 1 (amending article 1).
241 The Law on Reconstruction, Article 9 (1).
242 Human Rights Watch interview with Axel Jaenicke, head of Return and Integration Unit, OSCE Mission to the Republic of Croatia, Zagreb, August 22, 2001.
243 Ibid. Articles 16 (2) and 34 (2) of the Law on Reconstruction provide that an applicant for reconstruction has to provide an attestation from the county office for war damage assessment on the level of damage.
244 Human Rights Watch interview with Axel Jaenicke, Head of Return and Integration Unit, OSCE Mission to the Republic of Croatia, Zagreb, August 22, 2001.
245 Human Rights Watch telephone interview with Marko Brajko, Assistant Minister of Public Works, Reconstruction, and Construction, June 24, 2003.
246 Article 180 of the Civil Obligations Act provided: “Responsibility for damages caused by death or bodily injury or by damage or destruction of another’s property, when it results from violent acts or terror or from public demonstrations or manifestations, lies with the authority whose officials, under the law in force, were under a duty to prevent such damages.”
247 The Act Amending the Civil Obligations Act, Narodne novine, no. 7/1996, January 26, 1996, articles 1-2.
248 Law on Amendments of the Law on Obligatory Relations, Narodne novine, no. 112/1999, October 29, 1999, article 1 (introducing articles 184.a and 184.b). The parliament adopted the amendments because the January 1996 amendment pertained only to damage caused by unknown perpetrators; if the owner knew the perpetrator, and the perpetrator was a member of the Croatian Army, the owner could sue the State and, in theory at least, receive compensation.
250 Law on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations, Narodne novine, no. 117/2003, July 23, 2003.
251 Law on Liability of the Republic of Croatia for Damage Caused by Members of the Croatian Military and Police Forces During the Homeland War, Narodne novine, no. 117/2003, July 23, 2003.
252 Sergej Abramov, “Za minirane kuce naknada” (Compensation for Mined Houses), Novi List (Rijeka), April 27, 2002 (citing Ingrid Anticevic Marinovic, Croatian Minister of Justice); also, in proceedings before the European Court of Human Rights, the Government argued that it was seeking a solution “compatible with … the State’s resources.” European Court of Human Rights, Kutic v. Croatia, Applications no. 48778/99, Judgment of March 1, 2002, para. 22.
253 European Court of Human Rights, Kutic v. Croatia, Application no. 48778/99, Judgment of March 1, 2002.
254 The applicants had lodged two actions for damages against the Republic of Croatia before the enactment of the January 1996 amendments. Ibid., paras. 9 and 15.
255 Law on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations, July 14, 2003, Narodne novine, no. 117/2003, articles 7 and 8.
256 Ibid., article 10.