III       General remarks - 1999 – 2004
 

D) Respect for general (Human) rights of persons belonging to minorities and the rule of law

18.       Respect for (human) rights of persons belonging to certain national minorities, especially Serbs and Roma, remains the problematic result of war inheritance and long-term discriminatory policies. Discriminatory legislation were, in most cases, replaced with new legal solutions which, still, in certain areas do not influence the results of discriminatory policies, laws and their implementation and decisions passed in 1990s. Discrimination problems still exist in cases of recognition and exercising of wide spectrum of acquired rights such as status, property, pension, social, labour, tenancy and compensation rights. In most cases, the issues are faced by ethnic Serbs, refugees and displaced persons, who lived in former, so called, “Republic of Serb Krajina” during the war.[1] The fact that the judicial and administrative bodies do not recognise the existence of war (Homeland War 1991 – 1995) as legally relevant in exercise and recognition of the acquired rights of the above citizens is one of the main problems causing discriminatory treatment against those people and influencing their remaining in or/and sustainable return to the Republic of Croatia. Following that, the war as a “vis major” did not happen to some citizens (mostly ethnic Serbs) and, therefore, the legislative applied in certain cases concerning those people were those usually used under normal circumstances (peacetime). Referring to press release of the Human Rights Watch from January 09, 2004, “ refugee return and responsibility for war crimes are the key human rights issues establishing Croatian way to Europe''.[2] Roma in Croatia are the victims of discrimination in exercising wide spectrum of rights such as citizen status rights, housing, health protection, education, employment, access to public services and other. Referring to the reports by European Roma Rights Centre, Roma do not enjoy equal legal protection, they are facing discrimination within the legal system.[3] 

19.       State authorities in the Republic of Croatia are established on the principle of separation of powers into legislative, executive and judicial authorities (Article 4 of the Constitution of the Republic of Croatia). The Constitution guarantees the right to legal protection but “the courts were exposed to political influences, inefficient bureaucracy, lack of finances and large number of unsolved cases ''[4] (there were 1.382.867 delayed cases before courts in 2002[5]) despite the continuous decrease of the political pressure. A proper functioning of the judiciary and an adequate implementation of the Law continue to be a serious problem whereas delays within certain segments of the judiciary jeopardise the rule of law.[6]  There have been many complaints against the work of the judiciary related to discrimination; different approach concerning similar cases  on the basis of national (ethnic) identity of the clients.  The OSCE report on war crimes trials before national courts in 2002 confirms the above stated. It mentions that despite certain success being achieved, “procedural and contextual issues, especially those related to the national background of the defendants as well as the victims, continued to influence the processing of war crimes in Croatia”.[7] Ombudsman for Human Rights and the Constitutional Court of the Republic of Croatia are the most important institutions for protection of human and minority rights. Governmental Human Rights Office, Office for National Minorities as well as Parliamentary Committee for Human Rights and the Rights of National Minorities are also dealing with the same issues. Since the Republic of Croatia has ratified the European Convention for Protection of Human Rights and Fundamental Freedoms in November 1997, certain individuals who believe that their human rights guaranteed by the Convention are being violated can appeal to the European Court for Human Rights. According to the opinion of the European Commission, many appeals and cases before the European Court for Human Rights indicate (also) procedural problems within Croatian judiciary including the scope of activity of the Constitutional Court as an effective remedy in the fields of human rights and/or real concern with the respect of human rights in particular laws, especially those regulating property rights related to the war period.[8] But, the European Court for Human Rights is not an adequate protection in the above cases of violations of acquired rights since, in most cases, the violations of those rights happened before the Convention was ratified (the institute ''rationæ temporis''). Insufficient number of judges as well as the fact that some experienced judges, unfit for the regime of president Tudjman for their political affiliation or ethnicity lost jobs and were replaced by politically fit resources of a dubious quality and professionalism, negatively influenced the situation in judiciary.[9] For example, a verdict in a war crime case against one person belonging to the Serbian minority passed by the County Court in Gospic in August 2003 which was abolished confirms the above assertion. The verdict explanation says that the defendant was guilty not only of the war crimes committed in 1991-1995 war but also of crimes and genocide that Serbs have been committing over Croats for as long as 500 years, when Serbs, together with Turks (the Ottoman Empire) came to Croatia intending to destroy Croats and that “the defendant along with his predecessors set on the Croatian back for the last 80 years”.[10]

20.       While the return of displaced Croats (expellees) has almost come to its end, the problem of minority refugees and displaced persons (mostly ethnic Serbs) continues to be the greatest and the most serious human rights violation issue related to the violation of the rights of refugees belonging to minorities and discrimination in the Republic of Croatia. The Resolution of the UN Human Rights Committee adopted in 2001 also recognises the link between minority and refugee problems.[11] The total number of the officially registered refugees in Serbia and Montenegro and Bosnia and Herzegovina is about 210.000 persons, which makes almost 1/3 of the whole minority population of the Republic of Croatia. The official number of displaced Serbs is 1.702 persons[12], but the real number is still under the question mark and presumably several hundreds higher than the official one. For example, Centre for Peace Vukovar, in mid 2003, collected information on about one hundred displaced persons currently living in two small villages near Vukovar who were not registered as displaced persons. (see paragraph 29. Statutory Rights)…      

21.       Representatives of local NGOs from Croatia, Bosnia and Herzegovina and Serbia and Montenegro included into “Regional Legal Assistance Programme” project, who work directly with clients, collect information on human rights violations in the field as well as analyse number and the nature of their cases concluded, among the other things great number of violations of acquired refugee and displaced persons’ rights (mostly ethnic Serbs) come under category of human rights violations and discrimination on the basis of their nationality, ethnicity and religion. The Human Rights Watch came to the similar conclusion in the statement they published in September 2003 when promoting the report “Broken Promises: Impediments to Refugee Return to Croatia” [13], establishing that “discrimination on the basis of ethnicity slows refugee return”.[14]

22.       The European Commission, in its opinion on the Republic of Croatia, in April 2004, concludes that the Republic of Croatia needs to speed up and improve the implementation of the provisions related to housing for those refugees and displaced persons that decide to return. Croatia needs to make additional efforts to ensure sustainable return, which considers improvement of economic situation and general atmosphere in the areas of return, and to enable comprehensive integration of the Serbian community into Croatian society at all levels.[15] In its latest report dated May 14, 2004, the Human Rights Watch stated “The Croatian government has failed to take significant steps to facilitate the return of Serb refugees, despite pledges by the new prime minister and calls by the European Union as part of accession talks”. “The Croatian government must take stronger measures to facilitate the return of Serb refugees,” said Rachel Denber, acting executive director of Human Rights Watch’s Europe and Central Asia Division. “The new government’s statements are welcome, but they must be matched by action.”[16]   

23.       (Sustainable) minority returns and all issues related to that process presenta very complex matter. There are still a large number of political, legal and economical obstacles. The Government of the Prime Minister Racan had no strength, and, possibly, no will, to constructively approach solving of those problems and to reduce the influence of local extremists and right wing politicians on local levels. Controversial statement by the “reformist” Prime Minister Racan from 2002 was noted. He declared that “mass return of Serbian refugees to Croatia and Bosnian Croats to the Republic of Serbs is unrealistic.[17] Local NGOs dealing with the return issues and exercise of the refugee rights, on the occasion of the World Refugee Day, on June 20, 2003, concluded that the work of the main national institution dealing with the return, the Office for Displaced Persons and Refugees and its regional offices is the leading impediment to refugee return. They welcomed the invitation by the Prime Minister Racan to exiled Serbs to return but consider it insincere and frivolous considering missing return preconditions.[18]

24.       Commenting on the Human Rights Watch report dated May 14, 2004, Mrs. Jadranka Kosor, the vice president of the Government of the Republic of Croatia stated that the Government accomplished a lot in the last five months in relation to the exiled Serbs’ return. She also said that a clear political decision was passed. “It is a sincere government’s decision and I can assure you that they will seriously work on it” she said to the press. Mrs. Kosor emphasised that, together with the competent ministry, a special commission that works intensively on this issue was established and that it was certain that the results would be seen before the end of the Year.[19]

25.       According to the assessment by OSCE from December 2003 “The legislative and administrative framework for return continues to improve, albeit at a moderate pace and without the determined implementing efforts which are required to obtain significant results”.[20] Although it is an internal political document, co-operation agreement signed between the Government and the SDSS representatives significantly contributes to the improvement of the general atmosphere and conditions for the refugees and displaced persons to return. Co-operation between the Government and the representatives of the international community related to the return issues is somehow difficult as the activities of the Working Group on Legislation stopped in January 2003, it being a joint body of the representatives of the Government and the international community.

26.       The biggest problems in creation of preconditions for the physical return of refugees and displaced persons lay in a dispute over the repossession of the private property, solving of acquired rights of former tenancy rights holders who use to live in socially-owned apartments and statutory issues while the most significant progress was noticed in deciding on the applications and provision of assistance in the reconstruction of war damaged or destroyed buildings.

27.       Private property (houses) repossession continues to be problematic and slow considering the fact that the first deadline for the repossession was the end of 2002 and the second, the end of 2003, both of which were not respected. A number of former refugees who returned to the Republic of Croatia live in misery under terrible living conditions in utterly inadequate dwelling. For already several years, they have been waiting to repossess their houses that are legitimately (in accordance with the Law on Temporary Take Over and Management of Certain Properties from 1995 NN 73/95) or illegally occupied by, in most cases, ethnic Croats exiled form Bosnia and Herzegovina. Although this opposes the Constitution and property related laws, the Government continues to give priority to the temporary users (ethnic Croats from B&H) over the owners (exiled and displaced ethnic Serbs) by preventing evictions of those persons until they are provided with an alternative accommodation which is also affected by the slowness in the work of courts, legal bodies, delays and balking of the evictions of temporary users who, in some cases, have, at their disposal, another accommodation or are using several apartments at the same time. The courts in former UNTAES area, in cases in which displaced ethnic Serbs were occupying properties owned by ethnic Croats, were passing decisions on evictions of temporary users regardless of their being provided an alternative accommodation. This example shows that there was an obvious discrimination on the basis of ethnicity. Nevertheless, the progress in repossession of houses in certain parts of Croatia has been noticed and the Government announced that all illegally occupied buildings would be repossessed by the owners by June 1, 2004, while the process of repossession should be completed by the end of 2004.[21] In accordance to the Law on Temporary Take-over and Management over Certain Properties («NN» 73/95), the Republic of Croatia took over properties belonging to its exiled citizens of Serb ethnicity for temporary use, management and supervision. This law was based on the article 50 of the Constitution of the Republic of Croatia. Pursuant to this article, it is possible to limit or deprive properties and compensate owners with real market value of respective properties if such action would be of interest to the Republic of Croatia. The Constitutional Court of the Republic of Croatia expressed the same view in its decision passed on September 25, 1997, no. U-I948/1997. Nevertheless, the Republic of Croatia paid no compensation, established by article 50 paragraph 1 of the Constitution of the Republic of Croatia, to owners whose properties were given for use to third parties. For the same reason, only few individuals requested their rights before competent courts but have not been provided with the court decisions related to those issues yet.[22]. In some cases, temporary users damaged properties of the Serb owners, which presents an additional problem in the process of repossession. The representative of the ALTRUIST, an organisation from Split, Mr. Vojko Ivica, claims that any devastation was ordered and that non-prevention of devastations was the matter of political will saying: “If the citizens of Serb ethnicity were to do something like that, they would end up in jail!”[23].

Associations Civil Rights Project from Sisak and “HOMO” Pula, Korenica Office possess many examples[24] of property destruction committed by temporary users prior to the repossession of that property by its rightful owner. The owner repossesses completely destroyed and empty house without even a minimal living conditions. The state, in such cases, does not sanction former property user but also provides no material or any other assistance to the owner. The owner has no resources needed to repair the house or to create the minimum of living conditions in such a repossessed house. The Office for Displaced Persons and Refugees (ODPR), in their records on taking over the properties, does not describe the actual conditions of the property that is being repossessed by the owner. The above-mentioned associations registered no examples in which the ODPR filed an action for damages or brought criminal charges against such actions to the competent State Attorney’s Office. The same sources speak of examples[25] in which, upon handling over of the estates to the owner, Croatian Electric-Power Company cuts the power and water supplies to the owners while temporary users who use to live in same house move to new premises and are being provided with free connection to electricity and water. There are even more drastic examples of temporary users who failed to pay the bills for electricity and water supply. Croatian Electric-Power Company and Communal Company require for those bills to be paid as they hold this to be a precondition for connecting the owners to the power (see under Article 18 paragraph 8 of the Law on Areas of Special State Concern). However,  “repossession of other types of property continues to be unsolved. This includes business premises and land as well as some properties taken over from the occupants following other regulations excluding the Law passed in 1995.”[26] The looting of movable property by temporary occupants while leaving houses and apartments by temporary occupants is also a problem. According to the 1995 law, the properties were taken over in order to be protected and preserved. Relevant state bodies did the inventory of movable properties. It is bewildering that, although preserved, the inventory lists of movable properties are unavailable to the owners so that they can not prove the thefts in courts. Although the Government regulated the right to financial compensation for the owners of the houses occupied in accordance with the Law on Temporary Take-over and Management over Certain Properties passed in 1995, very few compensations are being paid (in the end of 2003, the compensations were paid to 450 owners out of 3900 who requested the compensation. Compensation agreements were delivered to more than 1200 addresses so far.).[27] Several hundreds of cases of owners who refused to sign the compensation agreements because of refusal by the competent ministry to pay back interest, although the ministry is required by law to pay interest, were registered.

28.       Tenancy rights come under the category of property right in urban areas of the Republic of Croatia and in the whole of the former SFRY and were considered to be a broad right to use the apartments that were, at that time, socially owned. Largely discriminated, Serbs (dozens of thousands) who left their homes (for fear or pressures during 1991 – 1995 Homeland War) were deprived of their earlier tenancy rights while Croats, with a few exceptions, were enabled in re-exercise of those rights[28] and all those who did not flee or were not expelled were enabled in buying, e.g. privatise those apartments under special facilities. Tenancy rights terminations, e.g. termination of the right to home in courts were conducted following the pre-war Law on Housing Relations and the Law on Lease of Apartments in Liberated Areas passed in 1995. According to the Law on Housing Relations, non-using of the apartment for 6 months was a reason to terminate the tenancy right. According to the Law on Lease of Apartments in Liberated Areas, the tenancy rights would be terminated in areas controlled by Serb forces until 1995 (former Republic of Serb Krajina) in case the apartment was empty for over 90 days. Strict implementation of the pre-war Law on Housing Relations and ignoring of special war circumstances, fear, violent and illegal evictions and expelling as well as adoption of the Law on Liase of Apartments in Liberated Areas were aimed to directly prevent the return and exercise of the rights for expelled and exiled Serbs. Tenancy rights termination procedures before courts were proceeded in absentia with, in some cases, with official appointing of legal representative in order to satisfy the formality and without a real essential significance. The former Deputy Prime Minister, Mrs. Zeljka Antunovic, strongly reacted to the 2001 report by OSCE that pointed out the need to solve the issue of tenancy rights. Assistant Minister for Public Works, Reconstruction and Construction and the Head of the Office for Displaced Persons and Refugees, Mr. Lovre Pejkovic, said that the OSCE was a “frivolous organisation”[29]. In March 2002, he claimed that the Government was not responsible towards the former tenancy rights holders[30].

“The most significant housing-related human rights concern and obstacle to refugee return continues to be the lack of legal and practical redress available to families who lived in socially owned apartments and whose OTR were terminated… Although the Government continues to avoid a discussion on the underlying legal and human rights aspects of the termination of OTR…”[31] The Government adopted two programs (2000-2 and 2003) related to housing of former tenancy rights holders who decide to return to and live in the Republic of Croatia. “Acquired” rights of ethnic Serbs coming from the tenancy rights were reduced to a humanitarian problem in this way. But, the programs are still not operable and allow high level of arbitrariness in deciding on the housing. Compared to former tenancy rights holders, who signed contracts on leased or privatised the apartments in the past, and, as such, in some cases even present impediments to return, nowadays housing-applicants are discriminated and their “acquired” rights continue to be denied (for example, if a former tenancy rights holder possesses or, in the meantime, became the owner of a family house or an apartment in the Republic of Croatia or any other former republic of former Yugoslavia and if he or she did not alienate these properties in any way after October 1991). Discrimination can also be noticed in the fact that two separate housing “programs” were adopted, one for so called areas of special state concern (former areas of conflict)[32], where mostly ethnic Croats exiled from Bosnia and Herzegovina need to be taken care off, and second one related to other parts of the country[33] mostly concerning housing of exiled Serbs. This presents a duality within the legal system of one country. Discrimination and different approach in exercise of rights on the basis of ethnicity is also visible in the fact that the first housing “program” is regulated by the law and the second one only by the Government’s Conclusion and through sub-legal acts.  

The Government never took into consideration NGO suggestions on possible solutions of former tenancy rights holders. These included the following options: 1.natural restitution where ever possible, 2. allocation of a substitute apartment of building and 3. financial compensation. Some NGOs in the region criticised the Conclusion of the Government of the Republic of Croatia on Housing of Returnees to Croatia – Former Tenancy Rights Holders dated June 12, 2003.[34]

It is striking that even Mr. Ante Klarić, the Ombudsman of the Republic of Croatia, the institution dealing with human rights protection issues, in his report to the Parliament of the RoC supports the idea to deny the right to any compensation to former tenancy rights holders since they “…left the Republic of Croatia without any valid reason to join to the enemy forces or to avoid to participate in defence of Croatia.”[35] Such opinion opens space for adopting same criteria and opinions in denying possibility for exercise of other acquired rights such as pension rights, labour rights, social and other rights, which imposes questioning of the institution of Ombudsman as relevant in protection of the mentioned rights pertaining to exiled and displaced Serbs. In March 2002, the Republic of Croatia ratified the Succession Agreement (regulates division of rights, obligations, resources and debts of former Socialist Republic Of Yugoslavia (SFRY) between its successor states (for details see under Item IV.XVI COMMENTS on the implementation of the Article 18 of the FCNM).

29.       Statutory rights, in the sense of return and regulation of a wide spectrum of the rights in the Republic of Croatia, such as regulation of the right to Croatian citizenship and permanent address present an additional problem for Serbian refugees who could not prove they were or never were the citizens of the former Socialist Republic of Croatia. The Croatian Law on Citizenship contains discriminatory provisions on acquiring Croatian citizenship. All ethnic Croats, regardless of their permanent address prior to the declaration of independence of Croatia are entitled to Croatian citizenship. However, the procedure for obtaining Croatian citizenship for persons belonging to other ethnic groups who did not have Croatian citizenship in the past is much more complicated than for ethnic Croats, regardless of how many years they legally lived in Croatia. These discriminatory provisions, besides a number of refugees (ethnic Serbs) affected more persons belonging to some other minorities, such as Roma, Bosniaks and Albanians. So, for example, Roma NGOs estimate that about 25% or Roma population in Croatia has no citizenship documents.[36] The citizenship is one of the most important criteria required for the exercise of a wide spectrum of rights related to social welfare, employment, citizens’ rights and many other. The problems of recognition of the right to citizenship for some persons of Serb ethnicity who realised this rights in the past and can prove their citizenship through Croatian citizenship certificates issued during the former Socialist Federal Republic of Yugoslavia were registered in wider Knin area. These persons are advised to start the procedures for establishing the citizenship or for additional registration in the book of citizens of the Republic of Croatia.[37]

Many other exiled persons, “non-citizens”, were deprived of their permanent addresses in the Republic of Croatia. Upon pressures by international community, in September 2002, Croatian authorities agreed to recognise refugees / returnees who had permanent addresses in Croatia on October 8, 1991 (the date of termination of relations with the former Yugoslavia) as foreigners with permanent right to reside. A particular problem related to permanent address, which is to be declared when issuing all relevant documents, affected displaced persons of Serbian ethnicity, former tenancy rights holders and members of their families who were already issued Croatian documents (ID cards and passports) during the UNTAES period on the basis of their pre-war permanent addresses. Upon the expiration of the documents issued within the UNTAES period, the above-mentioned persons were unable to get new documents using the old addresses of their pre-war permanent residence although they never cancelled their registrations. They were told that since their tenancy rights were terminated they needed to register on a different permanent addresses (which implies that they needed to either own a house or an apartment or make a lease agreement) in order to be able to get new documents. In accordance to the current Croatian laws, only the person who registered his or her permanent address can cancel it. The question by the citizens on how it was possible that they were able to issue personal documents on their pre-war permanent addresses during the UNTAES mandate (in 1997 and 1998) regardless of the fact that, in most cases, the tenancy rights were terminated in 1995/6, were frequently answered by relevant officers saying that this happened because of the UN presence and mandate.[38] Certain problems also occurred with the cancellations of the status of displaced persons without any written decisions by the Office for Displaced Persons and Refugees (ODPR) under the pretext that these persons were not found at their registered addresses during the re-registration. It was noticed that some displaced persons lost their status despite the fact that they lived in the addresses at which they were registered. This could have been proven by the police registration records of those people’s temporary addresses, however regional ODPR’s offices did not take it into their consideration. The loss (Lost) of the status caused unfeasibility to exercise certain rights, such as the right to vote at the elections in places opened for displaced persons and exercise of the right to adequate alternative accommodation if evicted from temporary occupied accommodation and similar.[39] Problems in exercise of statutory but also property and tenancy rights affected and limited the right to freedom of movement of refugees and displaced persons.

30.       Reconstruction of war damaged or destroyed accommodation units – The second half of 2002, unlike the previous period, registered a significant number of decisions on allocation of state assistance to Serb beneficiaries[40], and the same trend continued in the following period. According to the OSCE data, at the end of 2003, “The Government’s efforts to provide reconstruction assistance are bearing positive results.”[41] Decision procedures on reconstruction applications of ethnic Serbs speeded up significantly in 2003. Since the reconstruction of properties owned by ethnic Croats was almost completed, about 75% of reconstruction beneficiaries in 2003 were Serbian returnees. That percentage is expected to reach the amount of about 80% in year 2004. The planned deadline for the completion of the reconstruction of all war damaged accommodation units (houses and apartments) is the end of 2005.[42] The Government, at the beginning of 2004, decided to extend the deadline for submitting reconstruction applications to September 30, 2004. For all those who did not submit their applications within the earlier deadlines, this extension should enable them to do so within the latest one. The Law on Responsibility for the Damage Caused by Terrorist Acts and Public Protests and the Law on the Responsibility of the Republic of Croatia for Damages Caused by the Members of Croatian Military and Police Forces During the Homeland War were adopted in July 2003. In this way, for the first time since 1996, it was possible to get compensation for the damages and to exercise the right to reconstruction of buildings owned by Serbs that were destroyed during the war in and outside (territory controlled by Croatian Government) the conflict areas that were not included into reconstruction related legislation. Croatian Parliament, however, in January 1996, annulled the Article 180 of the Law on Obligations[43] that regulated the responsibility of the state for compensation of the damage caused by terrorist acts. Thousands of owners (mostly ethnic Serbs) whose properties were damaged were deprived of legal means for requesting and exercise the right to compensation for damages. Since the Government, before 2003, showed no interest in regulation of this right, it seemed that adoption of the Law in July 2003 was, firstly, the result of the verdict by the European Court for Human Rights[44] passed in March 2002. This verdict establishes that by annulling the Article 180 of the Law on Obligations, The Republic of Croatia violated provision of the European Convention for Human Rights Protection on the right to access to court, e.g. the right to fair trial. Adopted laws have retroactive effect and regulate the rights foreseen by the regulation annulled in 1996 in less favourable way. It means that new regulations do not regulate the right to financial compensation but refer to exercise of the right to reconstruction in accordance to the Law on Reconstruction. In reference to this Law, it is necessary to meet special criteria in order to exercise this right. Additionally, it does not allow comprehensive compensation, e.g. reconstruction of the buildings to the condition prior to the damage.  

31.       Some believe that despite all verbal promises obliging the Croatian investigative and judicial bodies to find and process all war crimes and punish their perpetrators, there is still no genuine political will to do so. Investigations, if they are conducted at all, are dictated by the wish to make an impression to the international public that Croatia is doing at least something. Results clearly show the lack of decisiveness and that it is only an illusion being created on investigation of the war crimes committed by Croats.[45] The UN Committee Against Torture, in May 2004, expressed their concern with the failures in implementation of fast, impartial and complete investigations, failures in processing the criminals and provision of fair and adequate compensations to the victims of dual standards in all phases of court procedures against ethnic Serbs.[46] The Committee was concerned with the reports on intimidation, harassment and threats facing witnesses and victims and lack of adequate protection for those persons by the state.[47] Ethnic biases, non-transparency and political influence in arrests and war crime trials, negatively affect the process of return of ethnic Serbs who were not suspects or convicted of war crimes and their wish to stay. For more statistical information on these problems, see: OSCE Mission to Croatia –Report on War Crime Trials Before Domestic Courts in 2002, February 2004.

32.       Political, administrative and legal problem in exercising acquired and non-realised social and economic rights impede the return of exiled and displaced Serbs and full integration of the whole population from formerly conflict areas under the UN protection and control of local Serb forces into Croatian society. “ Serious and permanent obstacles to return and re-integration of ethnic Serb refugees is the fact that the authorities did not recognise or “convalidate” their legal and administrative documents from the 1991 – 1995 conflict period”[48], despite the fact that Croatia was obliged to respect the Law on Convalidation, which was passed in 1997 as a result of the pressure by the international community.[49] Convalidation of individual legal acts and decisions is of a great importance when regulating the rights to pension, recognition of working experience and certain labour related rights, disability insurance rights and other. The Law on Convalidation specified no final deadline for submitting the application for convalidation but the sub-legal acts limited it to April 10 1999. Exiled ethnic Serbs, since they lived outside the country and had no valid documents at the time could not respect this deadline. In procedures related to the implementation of the Law, many irregularities and obstructions were noticed in the work of administration which set criteria that most of interested persons were unable to meet. A specific issue in submitting the convalidation application was that, as of December 1999, the applicants for convalidation of working experience were obliged to provide the authorities with the statement on their participation or otherwise in paramilitary forces (former army of the “Republic of Serb Krajina”). Sub-legal act [50] stipulates that the period of professional engagement with the army of former “RSK” shall not be recognised as working experience, therefore, in case the applicants give such a statement they are provided with negative decisions for the whole working period they applied for to be recognised, regardless of how long they were in the army.[51] The Government is persistent in its denials of the requests for prolonging or abolishing the deadlines for submitting the applications for convalidation although those deadlines, in opinion of some NGOs have no firm legal ground. A specific problem is also the fact that exiled and displaced Serbs were, the same as in tenancy rights cases, excluded from the privatisation process, distribution and buying off shares they were entitled to buy with the discount in the companies they were working with. Matured but unpaid pensions for the period 1991 – 1997 present a problem of pensioners, refugees and displaced persons, who lived outside the area controlled by Croatian authorities during the war. The problem refers to pensioners, Croatian Pension Fund policy-holders, who were not receiving pension instalments since they were forced to leave places of their permanent residence for different reasons, breakdown in communications between the territories controlled by Croatian authorities and those controlled by local Serbian forces where the pensioners lived. Croatian Institute for Pension Insurance refuses to recognise the right to pension instalments for the period of seized payments from 1991 to 1997 explaining that the “para-fund”, e.g. pension fund of the Republic of Serb Krajina already paid the pensions to those pensioners. Such opinion is under the question mark for multiple reasons such as the fact that Croatian pension fund, in July 1996, gave initial instructions on payments of matured but unpaid pension instalments to their policy-holders from former RSK area and that there were some cases of payments of unpaid pensions to those pensioners who returned to their pre-war permanent addresses (the areas that were controlled by Croatian forces during the war) right after the conflict finished.[52] Arguments for the payments of matured but unpaid pensions include: the fact that the RSK pension fund never passed any decision on establishment of pension instalments and the amounts to be paid and that the amounts that were paid to the pensioners were kind of financial assistance or advanced payment (the amounts that were paid were extremely low); even if those payments are to be considered advanced payments, Croatian pension funs still needs to pay the difference between those amounts and regular pensions to its policy-holders; many refugees (who lived outside the RSK territory), for a long time, received no pensions or financial assistance at all based on their pension insurance; etc. In accordance with its Letter of Intent submitted to the UN Security Council on completion of peaceful reintegration of territories under the transitional administration of the UNTAES, the Republic of Croatia took the obligation to recognise full enjoyment of all social and health rights in accordance with the law and other regulations of the Republic of Croatia, excluding the rights stipulated by the Law on Homeland War Defenders, to persons belonging to Serbian and all other minorities in the territory under transitional administration who are the victims of war, disabled persons in particular, widows and orphans.[53] But, in practice, these rights were difficult to exercise because the administration refused to convalidate relevant decisions issued by the RSK bodies during the RSK period; set up of impossible criteria in establishment of facts relevant to exercise of certain rights; and similar administrative and political obstructions.[54]