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Former Tenancy Right Holders Still Without Homes

Successive Croatian governments have failed to resolve the situation of lost tenancy rights of displaced Croatian Serbs. This failure has had a significant impact on refugee return, effectively preventing the return of refugees to urban areas, where many Croatian Serbs lived prior to the war. As result, most return has been to rural areas, and much of the former urban Serb population has remained in the countries of refuge.

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 the right in certain narrow circumstances. During the war and immediately afterward, the government terminated tens of thousands of tenancy rights belonging to displaced Serbs. 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 to receive compensation for the past and current deprivation of the use of the tenancy right.

Some 23,700 tenancy rights held by Croatian Serbs were terminated in court proceedings during and after the war.¹³ These apartments were located in the areas controlled by the Croatian government during the war. In addition, thousands of tenancy rights in the areas held by Serb rebel forces (the “Krajina”) ceased to exist by virtue of a law enacted in September 1995, when the government re-established control over those parts of the country.

In the areas controlled by the government during the war, the termination was usually based on article 99 of the pre-war Law on Housing Relations. Under that law, tenancy rights were terminated if the right holder was absent from the apartment for longer than six months “without a justified reason.” Although most of the displaced fled in the face of a real threat to their safety, Croatian courts rejected arguments that this justified any absence of more than six months. The emergence of evidence about the killings and torture of numerous Serb civilians in urban centers like Osijek,¹⁴ Sisak,¹⁵ and Split,¹⁶ has underscored the very real threat faced by many who fled their homes, and hence the unfairness of the court decisions affirming the termination of their right to return to those homes after the conflict.¹⁷ The court decisions reflect a proposition—wholly at odds with the civilian protection provisions of international humanitarian law and refugee law—that a displaced civilian must return to a war zone to preserve property rights. Even in cases where Serbs were forcibly expelled from their apartments, the fact of having been forcibly expelled did not help them to preserve the right over the apartment.¹⁸

The law adopted in September 1995 relating to formerly occupied territory stipulated that tenancy rights would be terminated if the tenants did not return to the apartment within ninety days after the law became effective.¹⁹ Only a month earlier, hundreds of thousands of Serbs previously resident in these areas had fled from Croatia after Croatian forces regained control. Many elderly Serbs who remained were killed.²⁰ At the time of the law’s adoption, it was obvious that genuine fear would prevent Serb refugees from returning within ninety days to repossess their apartments.

The fundamental injustice to the former tenancy right holders, done both through the court decisions and the September 1995 law, is often overlooked in the discussions in Croatia about how to address housing needs of the former tenancy right holders. The extent of the violation of the right to peaceful enjoyment of the tenancy right, and to protection from its deprivation, in the first half of the 1990s should be factored into the assessments of current and future government policies to address the issue of tenancy rights.

Alternative Accommodation in “Areas of Special State Concern”

In February 2004, the chief government official then in charge of return-related issues, Lovre Pejković, told Human Rights Watch that, by the end of 2005, the government would provide permanent alternative accommodation (stambeno zbrinjavanje, which roughly translates as “housing care”) to all former tenancy right holders in the areas that were under the control of Serb rebel forces during the war (legislation and common parlance in Croatia refer to these areas as “areas of special state concern”), providing they did not have other inhabitable property in Croatia or elsewhere in the territory of the former Yugoslavia.

Housing solutions for the former tenancy right holders in these areas consist of one of the following: provision of another state-owned apartment; allocation of an inhabitable state-owned house; allocation of a damaged house and construction material; donation of a state-owned land plot and construction material; or, simply the allocation of construction material (if the applicant already owns a piece of land). ²¹

In mid-2006, more than six months after the deadline identified by Pejković for the government to provide housing care to all eligible former tenancy right holders in these areas, there has been little progress. Although government statistics show that, as of April 2006, 2,668 former tenancy right holders had benefited from a housing care program,²² the vast majority of these cases refer to the Vukovar area, where Croatia’s legislation did not apply during the war and in the first two years afterwards, so local Serbs were able to retain physical possession and legal claims over the apartments. The United Nations Transitional Administration for Eastern Slavonia (UNTAES) administered the area in the immediate post-war period, and most of the Serbs did not flee the area. In recent years the government has repaired or reconstructed a number of apartments that were damaged or destroyed during the war and changed the status of those who lived in the apartments—both Croats and Serbs—from tenancy right holders to lease holders.²³

According to government statistics from April 2006, there were 3,400 outstanding requests for housing care.²⁴ This figure mainly pertains to the Serbs in “areas of special state concern.” As of May 2006, only a handful had benefited from the housing care program. In Knin, for example, five such cases had been resolved. The remaining forty-five cases in Knin that appear in official statistics, according to an international official familiar with the local situation, pertain to Croats and a few Serbs. The individuals concerned never possessed tenancy rights and were occupying abandoned apartments.²⁵

The OSCE field officer in Sisak told Human Rights Watch that the government’s list of eighty-eight individuals who received housing care in Sisak-Moslavina county in the past twelve months includes non-Serbs, in addition to returning Serbs.²⁶ The nongovernmental organization Serb Democratic Forum in Vojnić, which monitors return in seven municipalities in the areas of special state concern in central Croatia (Plaski, Vojnić, Gvozd, Glina, Petrinja, Dvor, and Kostajnica) as implementing partner for the United Nations High Commissioner for Refugees (UNHCR), had registered provision of housing care to only one former tenancy right holder in those seven municipalities as of May 2006.²⁷ In Senjsko-Lička county, covering a number of municipalities in which Serbs made up an overwhelming majority of the population before the war, only four Serb returnees had received housing care by the same date.²⁸

The authorities have yet to issue decisions—either approving or denying the right to housing care—to most of the applicants. In Zadar county, as of May 2006, ten applicants had received housing care consents from the Directorate for Expellees, Returnees and Refugees, while an additional 436 requests were still awaiting government response.²⁹ In five counties covering wide swaths of territory in central Croatia—Sisak-Moslavina, Virovitica-Podravina, Bjelovar-Bilogora, Brod-Posavina, and Pozega-Slavonia—688 out of 840 requests awaited a government response as of the beginning of June 2006.³⁰

The insignificant numbers of cases in areas of special state concern that have been resolved reflects the fact that former tenancy rights holders are on the bottom of the list of priority groups for housing care in those areas. The relevant legislation, as amended in 2002, gives highest priority to the (predominantly ethnic Croat) temporary occupants of private Serb properties, followed by a heterogeneous group of “other housing care applicants,” to which former tenancy right holders belong.³¹ In a separate document (the “Rulebook”), the government established priorities among the “other housing care applicants” in the law. The Rulebook explicitly places former tenancy right holders at the bottom of the list, after the inhabitants of collective centers (mainly Croat refugees from Bosnia and Herzegovina) and persons settling in those areas for the first time.³² These other groups consist almost exclusively of ethnic Croats.

Alternative Accommodation in Other Areas

In June 2003, the Croatian cabinet adopted a set of measures to enable former tenancy right holders in Zagreb and other big cities to rent or purchase government-built apartments at below-market rates. The program is designed to benefit only those persons who do not own a house or apartment in Croatia or another part of the former Yugoslavia. In early 2004, the Croatian government committed to provide by the end of 2006 permanent alternative accommodation for all tenancy right holders who meet these requirements.³³

However as of mid-2006, fewer than forty former tenancy right holders, out of the 4,466 who applied, had benefited from the government-subsidized housing program. Government statistics from April 2006 indicate that forty-one apartments “have been bought for former tenancy right holders,”³⁴ but it is unclear how many former tenancy right holders moved into these apartments; evidently not all listed beneficiaries have done so. Human Rights Watch met in May with two women in Karlovac who appeared on the government’s list of intended beneficiaries of the purchased apartments, and it became apparent that one of them still lived in a collective center and the other in her relatives’ house.³⁵

The poor implementation reflects misallocation of funds as well as operational difficulties.³⁶ In the state budget for 2004, 23 million Croatian kuna (U.S.$4 million) were allegedly allocated for the implementation of the program. But the money was spent for purposes other than the program.³⁷ The 43 million Croatian kuna (U.S.$7.5 million) allocated for housing care in 2005 were not used during the year, although the government used 17 million kuna from that sum in February 2006 to purchase the first apartments for former tenancy right holders.³⁸

Assuming that the government is able to offer apartments to former tenancy right holders, most beneficiaries could realistically opt only for renting (paying an equivalent of U.S.$15 a month on average), because the purchase price (up to U.S.$1,050 per square meter) exceeds their financial means.³⁹ Those who decide to rent the apartments should be given an opportunity at a later stage to purchase those apartments at a favorable rate. That would mirror the arrangement for other former tenancy right holders who were given the opportunity to purchase their apartments after the war at a price not exceeding one-third of the market value.⁴⁰