CHANGES ONLY ON PAPER

AIM Zagreb, 20 November, 1997

At the request of the public attorney, the Serb Democratic Forum, the Civic Committee for Human Rights, assembly deputy Veselin Pejnovic, and Civic Committee called "Return Home", in the end of September, the Constitutional Court of Croatia, abolished one, and partially another two articles of the law on temporary takeover and management of certain (read: Serb) property.

Has this brought any essential changes for Serb refugees, both those who are somewhere in FR Yugoslavia or the Republic of Srpska and those who have managed to return to Croatia but not to take possession of their property? Hardly, because the rest of the law has remained in force despite general demands and that of the public attorney that the law be reconsidered and abolished altogether. As soon as the decision was made public, the advisor of the president for liberated regions, Drago Krpina, declared that it did not mean that a Serb who returned could simply knock at the door and throw a Croat refugee out of his house or apartment, and that the national interest and obligation of the Republic of Croatia was not to leave the banished Croats in the street, and that the obligation was not diminished by amendments of the law. It should be said, though, that the Constitutional Court has actually abolished the obligation of ensuring accommodation for those who are in other people's homes, so that the only thing that remained is - at least on paper - the moral obligation of the state to Bosnian Croats colonized in Lika, Banija or elsewhere in liberated regions.

In principle, after abolishment of one integrally and two provisions partially - among which probably the most important is the one which conditioned the question of return of possession and use of property by the agreement on normalization of relations between Croatia and Yugoslavia - it is possible to brag in front of the international community with great changes and the principle of respect of private property, but it is clear this will not make return to their homes any easier for the owners - if they have where to return in the first place, since a large number of houses from the region of former Krajina has been completely devastated.

What the real way to return of property will be like is not quite clear yet. Real analysts stress that the law has not regulated in what cases and under what conditions property would actually be returned, just as it was not prescribed that issuing of a written decision on letting someone use temporarily someone else's property was necessary. Such a decision was neither issued to the owner at the moment it was reached, nor when he returns to his place of origin and demands to be issued the decision! But, Krpina and the others who claim that Croatia is a state ruled by law, would say: in view of the fact that there is no ban of disposal any more, it means that the owner, regardless of the fact that his property is still under temporary control of the Republic of Croatia, can sell it, exchange it, rent it... With selling, it is clear: if the market does not operate, there is the state agency for selling real estate which can carry out the sale (telling by the prices it could rather be called robbery). But, what if the owner does not wish to sell and if he simply wishes to enter and live in his home?

According to the interpretation of the public attorney, when the owner demands that his property be returned to him, it is necessary to nullify the decision by which it was given to another person to use it - and this opens many problems and questions, despite the stand of the assistant public attorney Marta Vidakovic Mukic that in the future only abandoned property will be allocated for temporary use, because "property of known owners cannot be allocated regardless of where they are, if their address is known".

In its complaints and reactions to the decision of the Constitutional Court, the Civic Committee for Human Rights stresses the following: pursuant Article 23 of the Law on the Constitutional Court of the Republic of Croatia, proposal for amendment of an individual document - in this case the decision on temporary use of someone's property - may be submitted within six months if less than a year has elapsed from delivery of the decision to submitting the proposal for re-examination of constitutionality of the law to the Constitutional Court. But in order to make that possible it would be necessary to know both dates, but since the owners of property were not issued the decisions by which their property was given to others, the issue becomes complicated. Whether in these cases it should be considered as if there had been no delivery of the decision, or should the owners find out the date when the temporary user had received such a decision?

And when speaking of the date when the proposal was submitted to the Constitutional Court - it is not stated in the explanation of the decision, so that the owners who wish to initiate proceedings can do nothing but address some of the proposers, but again the situation in which proposals for re-examination of constitutionality submitted individually will be a problem, because the dates differ. Even if all the conditions are met, and if the commission revokes the temporary decision, the only possibility left for the temporary user is to lodge an appeal to the ministry of justice within eight days, and the ministry must reach a decision about the appeal within two months pursuant the Law on administrative procedure. Only after that, in case of a decision of the ministry favourable for the owner, the procedure for its execution will follow if the user of the house does not wish to leave. In case of an unfavourable decision, or even if the ministry fails to give an answer, the owner must lodge an appeal again and probably even initiate an administrative procedure, which delays the whole affair for many months. That is where the conclusion is derived from that majority of owners who these time limits refer to will have to instigate court proceedings in order to evict the temporary user or decide to sell the property.

What numerous problems will appear because of it can only be assumed - if a large number decides to instigate court proceedings, time which is needed as it is by our judiciary to carry out the prescribed procedure and reach a verdict which orders the temporary user to move out will just be prolonged. Furthermore, the owners will be forced to find money to pay the (much too) high court taxes, travelling expenses to the seat of the court (under the condition public transportation exists) if he has no lawyer, and it is highly questionable whether in the seat of the court there is a sufficient number of lawyers who will be willing to bite into this sour apple and whether the owners have money to pay them. And to the question how they will implement the court decision once they win the case, the answer has already been given by practice: there has been very few successful "evictions" of those who had moved in on the basis of various written decisions, even in the capital, least of all in the country.

Referring to "actual circumstances at the time of passing the law" when it was allegedly necessary to preserve the property from devastation and plunder, the constitutional court decided not to reconsider the law in general "regardless of the fact that certain actions and decisions in practical implementation were contrary to law". That is how even completely nebulous provisions of the law have remained intact. Article 2 states that property which is temporarily managed and used is that of those who had left Croatia after 17 August 1990 or those who are on the occupied Croatian territory (meaning eastern Slavonia) or on the territory of FR Yugoslavia or - it sounds unbelievable - "on the occupied territory of Bosnia & Herzegovina", and since it is clear that there are no Serb refugees in the "centuries-old Croatian city" of Jajce or Drvar, it is clear what was actually meant.

Despite the articles of the law which have been abolished based on constitutional equality of all the citizens and the right to leave the state whose citizenship one has and return to it whenever one pleases, the same complaints remain. This law not only fails to protect the property of Serb refugees, but it is almost completely devastated with the exception of the cities where mostly Croat refugees from Bosnia & Herzegovina are accommodated, and what is still worthwhile is more and more often taken by the "citizens" from other Croat cities so in this way, for the first time in their lives, they too have acquired weekend houses. The already mentioned Drago Krpina has on the occasion declared that "one should not expect a large number of controversial cases, because only about 12 thousand Serbs have expressed a wish to return to these territories. The fact that a state agency was founded to trade in "certain real estate" (which is called by some "agency for ethnic cleansing"), which has focused its efforts on Podunavlje, it is clear that peaceful reintegration will complete "ethnic engineering" started in 1991, so that majority of the Croats will be in their state and majority of the Serbs in theirs. Because, according to the words of Veselin Pejnovic, assembly deputy and one of the initiators of evaluation of the controversial law, "national, and not civic category of free, autonomous disposal and taking possession of private property, is still insisted on".

Tatjana Tagirov