Croatian Serbs Await Return of Lost Homes

Croatia’s failure to arrest Ante Gotovina, the general indicted for abuses against ethnic Serbs in the military offensive codenamed Operation Storm in 1995, is widely regarded as the last obstacle to the country’s accession to the European Union.

But another important issue has received less attention from the international community, namely the rights of displaced persons and refugees from Croatia.

About 200,000 Croatian Serbs fled their homes during or directly after Operation Storm. Other Serbs had already abandoned their homes in other parts of Croatia.

Ten years after Operation Storm, the return of Serbs to Croatia is still being obstructed, especially those who formerly lived in publicly-owned housing.

Bosnia and Hercegovina has resolved the housing restitution problem under the scrutiny of the international community. But it seems a blind eye has been turned to Croatia’s treatment of analogous cases.

The Yugoslav wars prompted a redefinition of the term “return” as employed in refugee law. Previously understood as implying a return to one’s country of origin, it now implies a return to one’s original housing as well. Put simply, it means that property must be returned to its pre-war owners.

The international community has extended the definition of property restitution to cover not only privately-owned property, but a home to which one has occupancy rights.

During the Yugoslav communist era, enterprises reinvested profits in apartments for their workers, which resulted in a form of public-sector housing known as “socially owned property”. Workers granted occupancy rights were entitled to keep the property for life, and transmit the right to their heirs. They could even sublet part of the property to generate income.

Such rights could be cancelled only by judicial procedure in cases where, for example, a worker did not use his or her apartment for more than six months without good cause. However, such cancellations were exceptional.

In the former Yugoslavia, socially-owned apartments were the sole homes of hundreds of thousands of families.

After the 1992-95 war in Bosnia, residents of socially-owned property there were deemed to be on a par with private owners, and such apartments were thus subject to restitution to their pre-war occupants.

Besides displaced persons and refugees who were provided temporary housing, in most cases the socially-owned apartments had been seized by people who profited from the conflict to obtain second homes. In the general atmosphere of anarchy, there was a scramble to occupy such apartments.

A massive programme of restitution under international monitoring largely resolved the problem in Bosnia, and by now almost 200,000 houses and apartments have been returned to their pre-war occupants. Many have not actually returned home but have at least been enabled to sell or exchange their homes.

The process defused a potential crisis over these returnees, whose unresolved grievances could have made them prey to political manipulation.

But practice in Croatia has not followed that of neighbouring Bosnia. Here, the new occupants of seized apartments were often ethnic Croat refugees from Bosnia who quickly obtained the right to privatise the properties and thereby transform occupancy rights into private ownership. In many cases, they resettled permanently in Croatia.

In Bosnia, such practices were forbidden by the international community as contrary to the right to return, as set out in Annex 7 of the Dayton Peace Agreement. The cancellation of occupancy rights was forbidden as contrary to the European Convention for Human Rights and Essential Freedoms (whose application in Bosnia is ensured by the domestic human rights commission) and to Annex 6 and 7 of the Dayton agreement.

In Bosnia, the aim was to return all properties, both private and socially-owned, without distinction.

Yet in Croatia, the widespread privatisation of socially-owned apartments deprived refugees and displaced persons of any possibility of returning. More than 30,000 families - the overwhelming majority non-Croats - which had occupied socially-owned apartments lost the possibility of returning to these homes forever.

Croatia’s practice is at variance with that of other former Yugoslav states. In Kosovo, for example, socially-owned property is being returned to its pre-war occupants, while in Serbia and Montenegro, the supreme court has declared that the cancellation of occupancy rights of displaced persons is illegal, and that such people have a right to reclaim socially-owned apartments.

The succession treaty between the former Yugoslav republics includes an obligation on all new states to respect pre-war property rights.

The disparity of treatment between Bosnia and Croatia has created tensions, especially in the Bosnian town of Banja Luka where many Croatian Serbs settled after 1995. These Serbs feel unfairly deprived of the right to return or to freely dispose of their property, which has instead been given over to Bosnian Croats.

At the same time, they have also lost out because when the laws on property restitution were put into effect in Bosnia, they faced the prospect of eviction from the properties they occupied, because these formerly belonged to Muslims and Croats who fled from or were expelled from the Serb entity in Bosnia, Republika Srpska.

This sense of injustice led to demonstrations in Banja Luka against the eviction of Croatian Serbs, which the government of Republika Srpska exploited to slow down the return of Muslims and Croats to Banja Luka.

International pressure on Croatia has achieved little, and successive Croatian governments have failed to shift from their position of denying restitution or compensation to the former occupiers of socially-owned apartments. Zagreb has simply dismissed the issue as a legacy of a socialist system that no longer applies to Croatia.

Within the context of Croatia’s accession to the EU, the issue has not been given much consideration or placed under particular scrutiny.

In Bosnia, the so-called Property Law Implementation Programme provided precise statistics about the number of properties returned to pre-war owners and occupiers, and the statistics were used to assess Bosnia’s performance on the road to joining the Council of Europe, CoE, in 2002.

Only after it was determined that more than 50 per cent of more than 200,000 properties had been returned was Bosnia deemed to have discharged its obligations and allowed to join the CoE. The authorities in Bosnia have now returned around 200,000 habitable properties to their pre-war owners, as virtually all claims were decided positively.

No such obligation was placed on Croatia when it joined the CoE in 1997, at a time when no property restitution process was under way. Nor was the issue raised when discussions began over EU accession, even though the membership requirements are stricter than those of the council.

That is not to say that no property has been returned to Croatian Serbs. The process of returning some 19,000 private properties is currently in train, and with luck it will be completed by the end of this year. But this offers no remedy to the 30,000 families who were not private owners and whose occupancy rights have been cancelled. They represent the largest single group of refugees in the former Yugoslavia in need of housing whose case has not been addressed.

The solutions that Croatia has proposed are inadequate, as the housing care schemes it has put in place for former tenants whose occupancy rights have been terminated are limited to those who want to return. This disregards the now widely-accepted principle that property ownership or peaceful enjoyment of possession is a right in itself which, when violated, should receive due remedy, compensation or restitution, quite independently of intentions to return.

The current housing schemes for refugees and displaced persons do not amount to restitution in kind, as they are also subject to numerous legal limitations.

The whole programme is short of funding, so that only a few hundred new apartments have been constructed. Nor is it clear how many of these have actually been allocated to returnees.

The EU has so far refused to take a strong line on terminated occupancy rights in Croatia until the European Court of Human Rights issues a judgment.

In spite of the clear differences between the standards set for Croatia and Bosnia, in April 2004 the EC recommended that accession negotiations with Croatia should begin. Commending the measures Croatia had taken in terms of refugee returns, it urged the country to remain actively engaged in the issue.

But in subsequent documents, the issue of refugee returns disappeared from the conditions that Croatia has to fulfil. The only one now outstanding is full cooperation with the Hague tribunal, where the main outstanding issue is the need to detain and hand over Gotovina.

This disparity in treatment is resented by the displaced persons and refugees themselves, who cannot understand why similar solutions have not been more uniformly applied wherever the same problems exist. They feel their rights are being decided by distant political elites rather than by the application of sound and clear principles based on international standards. Their frustration may yet become another factor for instability in the Balkans.

Massimo Moratti is executive director of International Committee for Human Rights (www.ichr-law.org), an independent human rights organisation based in Sarajevo, whose members have been involved in the property restitution process in Bosnia and Hercegovina.