Commissioner for Human Rights - Report by Thomas Ham Mar Berg, Commissioner for Human Rights of the...

8/3/2019 Commissioner for Human Rights - Report by Thomas Ham Mar Berg, Commissioner for Human Rights of the Council of Europe, Following His Visit to Croatia Fr

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Council of Europe Home

Strasbourg, 17 June 2010CommDH(2010)20English only

Report by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe, following hisvisit to Croatia f rom 6 to 9 A pril 2010

Issues reviewed : Human rights of displaced pe rsons and a sylum seek ers, proceedings relating to post-warustice and hum an rights of Rom a.

Executive summary

Com missioner Thom as Ham marberg and his delega tion visited Croatia, from 6 to 9 April 2010. In thecourse of this visit the Commissioner held discussions with national, regional and local authorities,international and non-go vernme ntal organisations. The Com missioner held also m eetings with nationalhuman rights structures and representatives of minority groups.

Drawing upon the focused nature of the Comm issioners visit, the present R eport tackles the followingma jor issues:

I. Human rights of displaced persons and asylum seeke rs: Long-standing huma n rights issues caused bythe 1991-1995 war must be resolved. The Comm issioner welcomes the e fforts ma de by the C roatianauthorities in this rega rd, underlining a t the sam e time the fundam ental right of all displaced p ersons tovoluntary return in safety and dignity . Large parts of Croatias territory, including agricultural land and forests,must be dem ined imm ediately in order for the condition of sa fe return to be met. Any further measuresrelated to returns should be base d on upda ted, reliable data on the num bers and the situation of displaced persons. The Comm issioner encourages Croatia to follow up on the decisions take n at theInternational Confe rence o n Durable Solutions for Refuge es a nd IDPs which took place last March inBelgrade, and to enhance its co-operation with all relevant neighbouring countries in order to provide just

and sus tainable solutions to all pending issues. In this rega rd the Co mm issioner urges the authorities toensure the full participation of the displaced persons them selves, pa rticularly those belonging to m inoritygroups, in the planning and mana gem ent of all relevant processe s.

Issues concerning lost or damag ed p roperty and the rights of displaced persons in this regard remain of concern to the C omm issioner. Pending cases concerning the reposse ssion of property should be dealt withpromptly, in full compliance with the relevant case-law of the European Court of Human Rights. Particularattention should be paid to the situation of former occupancy/tenancy right (OTR) holders who either donot wish to or cannot return to Croatia to benefit from the housing care programme. Just solutions must befound for these p eople. T his must a lso app ly to the issue of convalidation in order to validate the yearsworked to attain pensions by displaced pe rsons during the war years in areas not under governmentcontrol. The Comm issioner also calls on the authorities to promote the integration of displaced persons byfacilitating their naturalisation, if this is requested. In this regard, he recommends that Croatia ratify theEuropea n Co nvention o n Nationality and the C ouncil of Europe Convention on the avoidance of statelessness in relations to State su ccession.

As rega rds asylum seek ers, the Co mm issioner welcomes the recent and ongo ing efforts ma de b y theauthorities to improve refugee protection. At the same time, he notes in particular the need to provide

access to free legal a id in first instance a sylum procedures. The creation of a permanent refugee receptioncentre should remain a priority, while the detention of migrants, including asylum seekers, especially forlong periods, should be avoided a nd should constitute the exception and not the rule. The C omm issionerrecomm ends the a bolition of the practice of de mand ing accomm odation fees b y migrant detainees a ndthe impos ition of a n entry ban in case of non-paymen t. The authorities should also pa y specific attentionto particularly vulnerable groups of migrants: victims of torture and other ill-treatment; victims of trafficking; a nd un accompa nied/sepa rated children. Las tly, the Comm issioner urges the authorities toresolve the remaining issues concerning the efficiency of justice, and specifically the excessively lengthyudicial proceedings which affe ct in pa rticular displaced persons a nd refugee s. Free legal aid s hould beaccessible in both law and practice. The Commissioner draws the attention of the authorities to thecase-law of the Europea n Court of Hum an rights in this dom ain.

II. Proceedings relating to post-war justice: The C omm issioner encourages the Croatian authorities toreinforce their efforts aimed at effectively investigating all persons involved in war atrocities, and takingaction against them. In this regard, he recalls the international legal principles of accountability, justiceand the rule of law. At the same time, access to justice for victims should be ensured and effectivedom estic remedies should be provided for them, including reparation. The existing impunity gap must be

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eliminated: the C omm issioner welcomes the openne ss a nd de termination shown by the authorities in thisregard. He urges them to continue to strengthen their co-operation with the International Criminal Tribunalfor the Former Yugoslavia, and their networks with the competent authorities of the relevant neighbouringcountries. W ar-related criminal cases should be exa mined and followed through in dom estic courts inaccordance with the standards of promp tness and fairness established by the Europea n Court of Huma nRights. The Co mm issioner rema ins concerned at cases of trials in absentia . He urges the Croatianauthorities to continue reviewing these cases and to ensure effective remedies for those convicted, incompliance with the standards of the European Convention on Human Rights. Reinforcing the efficiency of spe cialised courts a nd the facilitation of witness p articipation in war-related trials will contribute to furtheringthe process of post-war justice. A significant number of persons remain missing after the war. TheCom missioner encourages the authorities to continue, with the sam e d etermination, their efforts a imed atidentifying m issing persons a nd comforting their families. Finally, the Co mm issioner notes the particularimportance of history teaching for post-conflict countries. He encourages the Croatian authorities, possiblyin co-operation with the relevant neighbouring countries, to reflect more on the need to promote historyteaching in a m anner that enha nces m uch-need ed inter-ethnic reconciliation and social cohesion.

III. Human rights of Roma: The Commissioner commends the measures taken so far concerning Roma.He urges the authorities to step up their efforts, drawing on the Council of Europe Committee of MinistersRecomm endation (2008)5 on p olicies for Rom a in Europe. Desp ite some recent positive de velopments,the participation of Ro ma in political life, public administration and the judiciary needs to b e e xam ined andstrategically reinforced. The Comm issioner remains d eep ly concerned by the significant numbe r of stateless Ro ma in the region of the fo rmer Yugoslavia, including Croatia. This situation furtherma rginalises these populations. This must be looked into as a m atter of urgency, and the authoritiesshould facilitate the na turalisation of a ll stateless Ro ma , providing them with effective a ccess to free legalaid. The Com missioner underlines the pivotal role of e ducation a nd calls upon the a uthorities to complyfully with the recent European Court of Human Rights judgment in the case of Oru and others byeliminating any tendency of segregation of R oma pupils. Their pre-school education should be reinforcedin order to increase the currently extremely low percentage of Roma pupils with completed elementaryschool education. Targeted professional training me asures are a lso encouraged. As regards housing, theCom missioner stresse s that Rom a se ttleme nts providing substandard, de grading living conditions, such asthe one in Struge near Zagreb, should b e replaced by ad equa te housing in compliance with EuropeanSocial Charter standards. Lastly, whilst the Com missioner takes note of the pos itive developm entsregarding anti-discrimination a nd a nti-hate crime legislation, he rema ins concerned about the pe rsistenceof anti-Rom a m anifestations that include violence. He urges the Croatian authorities to ad dress failures o f the justice system and to ensure effective investigation and prosecution in accordance with the establishedcase-law of the Europea n Court of Huma n Rights in a ll such cases.

The Croatian authorities comm ents are appe nded to the present Re port.

Introduction

1. The present Rep ort follows a visit to Croatia by the Council of Europe Com missioner for Human Rights(the Com missioner) from 6 to 9 April 2010. 1

2. The Com missioner wishes to thank s incerely the C roatian a uthorities in Strasbourg a nd Zagreb for theassistance that they p rovided in facilitating the independ ent a nd e ffective accomplishme nt of his visit.

3. During the course of the visit the Commissioner held consultations with a number of state authorities,including the President of the Republic, Prof. Dr Ivo Josipovi, the Prime Minister, Ms Jadranka Kosor, the

Vice-Prime Minister for Social Issues and Human Rights, Prof. Dr Slobodan Uzelac, the Minister of ForeignAffairs, Mr Gordan Jandrokovi, the Minister of Justice, Prof. Dr Ivan imonovi, and the Minister of Reg ional Developme nt, Forestry and W ater Manage ment, Mr Boidar Pankreti.

4. The Com missioner also m et with regional a nd local authorities in the counties o f Meim urje a ndVukovar-Srijem, as well as with national human rights structures, international organisations and NGOs inZagreb and Vukovar. The Com missioner visited the detention centre for migrants in Jeevo, a Ro ma sitein Struge, nea r Zagreb, a nd the R oma settlements in Pribislavec and Lonarevo in the county of Meimurje.

5. Croatia a ccede d to the Council of Europe on 6 November 1996 and has signe d and ratified most of thema jor Council of Europe and core United Nations huma n rights treaties. The Co mm issioner notes thatCroatia has not as yet signed a nd/or ratified the European C onvention on Nationality, the Co uncil of Europe Convention on the avoidance of statelessness in relation to State succession, the revised Europea nSocial Charter and the UN Convention on the R eduction of Statelessnes s.

6. The Com missioner notes with satisfaction that Croatia is one of the few Council of Europe mem berstates to have ad opted a comprehensive, multi-annual a ction plan to promote, protect and respect human

rights and funda me ntal freed oms. The major challenge is to sustain efforts to impleme nt the relevantpolicies in a systematic manner and create an e nvironme nt where hum an rights principles and standardscan thrive. Such efforts are of particular significance for post-conflict societies where social cohesion andcultural and ethnic diversity should be protected and enhanced.

7. Four Om budsm an institutions (the Pe oples Om budsm an, the Om budspe rson for Children, theOm budspe rson for Persons with Disabilities and the Om budspe rson for Gender Equality) are fullyoperational and s hould be further resourced. Government hum an rights offices, such as the Huma n RightsOffice, the Office for National Minorities and the Gender Equality Office, along with the Human RightsCentre, constitute other pillars of the national human rights system which have acquired valuableexpertise.

8. In the course of his visit the Comm issioner was informed about a n ongoing discussion on therationalisation of the national system of human rights structures. Efforts aimed at improving the efficiency,coordination, coherence and visibility of the national human rights structures are welcome and should bepursued.

9. Drawing upon the focused na ture o f the C omm issioners visit, the present Re port concentrates on the


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following ma jor issues: hum an rights of displaced persons and a sylum see kers (section I); proceedingsrelating to post-war justice (section II); human rights of Roma (section III). Each section is accompaniedby the Comm issioners conclusions and recomme ndations.

I. Human rights of displaced persons and asylum seeke rs

Internally displaced persons (IDPs)

10. At the end of the 1991-1995 war there were 250 000 displaced persons within Croatia (including 32 000ethnic Serbs). In December 2009 there were reportedly 2 285 IDPs in the country, including over 1 600displaced e thnic Serbs in ea stern Slavonia.

11. The Co mm issioner was informed that the num ber of IDPs ha s only decrease d by a fe w hundred a yearsince 2005, compa red to an average d ecrease of 4 500 pe r year between 2002 and 2005. T his can beexp lained by a rather slow, delayed p rocess of reconstruction and housing care programm es (se e a lsorelevant sub-sections below).

12. In 2007 the majority of the state-run collective centres for IDPs in eastern Slavonia were closed and asma ll numbe r of the residents received an alternative fo rm of hous ing. In 2009 the six collective centresthat provided housing for about 170 IDPs , 470 refugees a nd 40 returnees were planned to be reduced tofour. It appears that there was no precise plan for the remaining closures.

13. For the e thnic Croat IDPs who ha ve not bee n ab le to return so far, the m ain obstacle to return see msto be the poor economic situation in return areas, such as the region of Vukovar. Ethnic Serb IDPs are stillreported to face several serious obstacles to viable return. The issue of house reconstruction for ethnicSerbs was reportedly addressed with considerable delay and is still in some cases critical (see also relevantsub-section below). Persisting problems relating to excessively lengthy, especially civil and administrative,proceedings (see sub-section on justice s ystem below) have mad e it ha rder for IDPs to asse rt their rightsand attain durable solutions.

14. The Commissioner remains worried by the fact that extensive areas in Croatia, including agriculturalland and forests and mo re than 100 towns and municipalities, rema in contaminated by mines a ndexplosive remnants of war (ERW). The loss to agriculture is estimated at 44 million a year while the valueof wood resources that cannot be use d be cause of mine s is estimated at 178 million. 2 The Comm issionerhas noted that Croatia made progress in demining large parts of its territory until 2008, in compliance withthe 1997 Mine Ban (Ottawa) Treaty, which was ratified in 1999. However Croatia did not manage to meetits Article 5 clearance deadline, and this was extended for 10 more years, until March 2019. Between 1999and 2008 mo re than 200 m ine/ERW casualties were reported, including 75 de aths and 137 injuries. 3

15. Demining and ERW clearance is a se rious issue that should be a ddressed b y the Croatian authoritiesas a matter of ex treme urgency, given C roatias o bligations not only under the O ttawa T reaty but alsounder the Europea n Convention on Human Rights and the contracting states positive o bligation tosafeguard notably the right to life of everyone within their jurisdiction (Article 2 of the Convention).

Return of ethnic Serb refugees

16. The Commissioner notes that before the war the Serbian minority in Croatia constituted 12.16% of thepopulation, while in 2001 this percentage had fallen to 4.5%. They still rem ained the largest nationalminority. Return of ethnic Serb refugees started in 1996. In 2009 the Croatian authorities reported that

approxima tely 40% of the previous Serb population had returned to Croatia.4

Facilitation o f returns or localintegration of refugees and internally displaced p ersons was o ne of the m ajor comm itments me ntioned inthe 2005 Declaration which followed the regional ministerial conference on refugee returns, and was signedby the governments of Bosnia and Herzegovina, Croatia and (then) Serbia and Montenegro. At the end o f 2009 the Croatian authorities had registered 132 400 returns of ethnic Serbs from other countries in theregion of the former Yugoslavia. According to UNHCR, almost 72 000 Croatian Serbs still live in Bosnia andHerzegovina, Montenegro and Serbia.

17. However, UNHCR has identified a number of inconsistencies in official refugee/returnee statistics, e.g.more than 10 000 persons a re registered both a s returnees in Croatia and refugee s in Serbia. UNHCR, inco-operation with relevant authorities, is currently reviewing the number and status of returnees andrefugees. 5

18. Although successive g overnments have mad e progress, in particular by undertaking legislative reformsto support the return of ethnic Serbs to Croatia, in practice there are still obstacles to their viable return. Inthis regard the Com missioner notes the nee d for the a uthorities to reflect more o n the reasons for whichlarge numbers of displaced ethnic Serbs have not as yet returned, and on possible ways in which returnsma y be effectively facilitated a nd ma de durable.

19. Members of civil society with whom the Commissioner met during his visit to Zagreb and Vukovarhighlighted as major problems, faced particularly by ethnic Serb refugees upon their return, the lack of timely social welfare support and continuous police inspection. The Commissioner was concerned byinformation indicating that po lice checks a re performed on a discretionary basis in house s or ap artments of ethnic Serb returnees to verify that the latter reside there on a permanent basis. It se ems that returneesrisk losing their entitleme nt to housing if they are not found at home on se veral occasions.

20. Particular difficulties face returnees who do not hold Croatian nationality. They are obliged to report tothe competent authorities when they travel out of the place of their residence. It is noted that thesereturnees are subject to ordinary aliens law and may be granted upon their arrival temporary orpermanent residence permits for which they reportedly have to pay an administrative fee. As foreignersthey are also subject to compulsory payments for health insurance.

Repossession of occupied property

21. The Com missioner notes that the reposses sion process of occupied p rivate property is now near itsend. Administrative ob stacles m ade the process, which started more than a de cade ag o, lengthy. The


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Commissioner was informed that 19 200 housing units have been returned to their owners. However 22cases are still pending before domestic courts. In these cases temporary beneficiaries still occupy property.

22. The Com missioner is aware of four relevant judgme nts against Croatia delivered by the Europea nCourt of Human R ights from 2006 to 2008. 6 The a doption of gene ral measures by Croatia in order to fullyexe cute these judgments is currently supervised b y the Council of Europe Comm ittee of Ministers. Theapplicants in these cases were prevented from using their property as it was allocated by state authoritiesto third pe rsons on the bas is of the Take over Act. Between 2000 a nd 2003, the competent a uthoritiesordered the occupants of the applicants properties to vacate them, bu t these o rders rema ined une nforcedfor several years, thus violating the applicants property rights. The Takeover Act was repealed in August1998, while in June 2008 the Constitutional Court issued a decision changing the case-law concerning thepaymen t of compe nsation to owners whose properties ha d be en a llocated to third pa rties by s tateauthorities, aligning itself with the Strasbourg Courts case-law.

23. According to the authorities, temporary beneficiaries have submitted requests for compensation for theinvestments ma de in the temporarily allocated hou sing units. During his visit the Co mm issioner was m adeaware of serious concerns by NGOs active in this field that the lawful owners often obtain property back inpoor condition, and do not receive fair compensation.

24. As regards ag ricultural land, the Croatian authorities ha ve informed the Com missioner that the processof repossession of agricultural land was concluded by the end of 2009. A new Law on Agricultural Land isalso in place. However the Com missioner has bee n informed that certain problems persist, such as theimposition of fines on refugees/returnees if they do not wish to or cannot cultivate their lands for variousreasons, including the fact that their bona fide cultivated land was not registered before the start of thewar.

Reconstruction of houses

25. On 9 April the Commissioner was informed by Minister Pankreti that Croatia has reconstructed 146600 housing units since 1995, investing for that purpose approximately 2.2 billion. It has bee n noted thatthe reconstruction process has slowed down and the da te for completion of the process has bee n

postponed . The current numb er of relevant pending cases indicated by the government is 7 000. In 2010the reconstruction of houses for 1 000 occupancy/tenancy right holder families (see next sub-section) isplanned.

26. The authorities have reportedly spent significant funds (HRK 1.15 billion) on the construction andrehabilitation of communal and social infrastructure. The government indicated that it invested HRK 300million to reconstruct electricity networks in the areas of return. It is planning to spend HRK 30 million tobring electricity to 16 remaining settlements by the end of 2010. The Project for Socio-Economic Recoveryfor Areas of Special State Control (ASSC) 7 (funded by the World Bank and the State) is also beingcompleted.

27. During his visit to Croatia the Commissioner received reports concerning discriminatory attitudes bycertain authorities towards ethnic Serb returnees, consisting, inter alia, in underestimating the cost of property dam age - thus preventing the owners from fully rebuilding their house s. Decision-makingprocesse s regarding reconstruction of house s ha ve lasted several years. There are 2 092 cases awaitingimplem entation. The Com missioner was informed that the Ministry of Re gional Developme nt, Forestry andWater Management has recruited five junior officers to deal with the pending cases which were howeverreported to be complex, requiring adeq uate ex pertise. 8 The a uthorities reassured the C omm issioner thatthe pend ing cases will be de alt with in an accelerated m anner in 2010 a nd 2011.28. Lastly, the Com missioner has take n note of a group of eight relevant judgments of the EuropeanCourt of Human Rights which were rendered against Croatia in 2007. 9 The cases concern m ainly extreme lylengthy proceedings concerning claims of da mag es cause d to the app licants during the war by the C roatianarmy or police or following terrorist acts. The claims had been filed with domestic courts in the first half of the 1990s and the proceedings were stayed by law in 1996. In view of these serious shortcomings inaccess to justice, the Strasbourg Court considered that the amo unts of comp ensation a warded b y dome sticcourts were unreasonable. The compensation which had been granted was approximately 15% of what theCourt was generally awarding in similar cases relating to Croatia. As of April 2010 the adoption of generalme asures by Croatia in order to fully execute the ab ove judgments was u nder supervision by the Co uncilof Europe Comm ittee of Ministers.

Occupancy/tenancy right holders and the housing care programme

29. The Com missioner is concerned by the situation of holde rs of socially owned flats (Holders of occupancy/tenancy rights O TR holders). This form of housing represented 70% of hous ing units in theformer Yugoslavia. The OTR status had many characteristics of that of ownership as the occupancy/tenancyright was kept for ones lifetime. Until 1995 most OTR holders were able to transform their right intoownership by paying a symbolic sum. This however was not the case for a large num ber of refugee s,mo stly ethnic Serbs, whose rights were terminated when they fled during the arme d conflict. Ethnic Serbs inareas that were outside government control lost their right ex lege when the conflict ended. TheCom missioner was informe d that 23 800 pe rsons, mainly ethnic Serbs, lost their entitlements.

30. The Com missioner has noted the case of Duan Vojnovi, a C roatian o f Serb origin, who fled Croatia in1991. In 2006 he subm itted a C omm unication (no 1510/2006) to the UN Human Rights Com mittee,complaining that the termination in 1995 of his tenancy rights violated the International Covenant on Civiland Political Rights. The complainant and his wife were deprived of their tenancy rights following courtproceedings in which they had not bee n invited to participate. In 2009 the UN Human R ights Com mitteefound a violation by Croatia of the principle of non-discrimination and of fair trial and equality beforecourts. Furthermore, the Committee concluded that the termination of the authors tenancy rights was anarbitrary and discriminatory interference with his home which amounted to another violation of theCovenant. The UN Human R ights Comm ittee has no ted in its Views that Croatia is under an obligation toprovide the Comm unications author with an effective rem edy, including ade quate compensation.


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31. The Com missioner has bee n informed that the Housing Ca re Programm e (HCP) was introduced in2003 to offer alternative housing for rent or purchase to former OTR holders who exercise their right toreturn. According to UNHCR 13 749 applications have been filed, of which 8 871 have been successful and7 092 persons have received housing care. 63% of the relevant applications originate from ethnic SerbIDPs a nd returnees, out of which mo re than 5,400 have b een granted housing care. 10

32. As regards refugees, including former OTR holders, who do not wish or are not able to return and arein nee d of housing in neighbouring countries of local integration, the Croatian authorities state that theystand ready to provide them with assistance. In particular, the authorities have indicated that they arewilling to co-operate with all host countries concerned and to support the creation of an international,multi-donor trust fund, as discussed at the International Conference on Durable Solutions for Refugee sand IDP s (Belgrade , 25 March 2010).

33. As regards the app lication of the HC P in Areas of Spe cial State Concern (ASSC), the de adline to a pplyfor housing care therein has not yet been determined. According to the authorities, 9 205 applications forhousing care in ASSC have bee n received and 5 868 a pplications have resulted in pos itive decisions. Thedea dline for applying for housing care outside ASSC ended on 30 Septem ber 2005. Until then 4 578applications had bee n received, 1 540 of which had been granted. The setting of a ne w dead line forapplications for housing care outside of ASSC and a b uy-off option for urban areas a re under considerationby the authorities who plan to implem ent the HCP until the e nd of 2011.

34. The Commissioner has noted that the new Law on Housing Care in ASSC provides claimants with thepossibility to appe al aga inst negative decisions. Given a numbe r of shortcomings in these procedures, in2008 the authorities decided to carry out a joint (with UNHCR) revision of all first instance negativedecisions on housing care outside the ASSC. The Com missioner has noted that a num ber of cases havebee n se nt back to first instance bodie s b ecause of a dministrative or procedural irregularities.

35. The Co mm issioner is concerned b y the slow pace of imp lementation of the HCP , noting that in June2008 the government ado pted an Action Plan for the Accelerated Implem entation of the HCP. Theauthorities, including Prime Minister Kosor, have stressed that despite the constraints of the nationalbudge t, allocations for the HCP have increase d in 2010. In March 2010 the Ministry of Re gional

Development, Forestry and Water Mana gem ent prepared an a ction plan for 2010 containing a ctivities andme chanisms for more transpa rent and effective implem entation of the HCP.

Certain issues concerning the integration of returnees

36. The Com missioner took note of the m odification of the Law on Foreigners which aim ed to regularisethe status of refugee s who were pre-war inhabitants of Croatia and who missed the end of 2005 d eadlinefor requesting Croatian nationality. Based on their existing links with Croatia, these groups of refugees/returnees now have access to a temporary residence status upon their return. However effectiveaccess to citizenship for this group of returnees would lift certain obstacles regarding, inter alia, access tosocial welfare se rvices.

37. The Commissioner is concerned by reports indicating that Article 22 of the Constitutional Law onNational Minorities (CLNM) relating to the employment of minority representatives is not systematicallyimplem ented. A study conducted by the Serbian Dem ocratic Forum in 2008 revealed that therepresentation of the Serb minority in public institutions remains low. The Commissioner has noted withsatisfaction positive but still modest changes following the May 2009 local elections in which Serb minorityrepresentatives won seats in more than seven municipalities in ASSC. During his visit to Croatia, the

Com missioner was p leased by the ope nness and constructive a ttitude towards the issue of ethnicminorities which were demonstrated by the regional and local authorities of Vukovar.

38. The Com missioner has bee n informed that an important numbe r of returnees are elderly people. Manyof them (especially those who stayed in occupied territories in Croatia) may not receive their full pensionsbecause their working years during the war have no t bee n validated. The situation is compounded by thecurrent high unemployment rate in Croatia which stands at 18.2%. Unemployment is especially acute inthe Areas of Special State Concern which were affected by the war. The Vukovar-Srijem county alone countsapproximately 20 000 unemployed persons.

39. The Croatian government has a ddressed the issue o f convalidation (recognition of years workedtowards a pension between 1991 and 1995 in a reas not u nder government control). Although progress ha sbee n ma de, the Co mm issioner is concerned by a high numb er of negative decisions on convalidation claims. According to UNHCR 20 089 claims were lodged between May 2008 and February 2010. 8 179claims resulted in positive de cisions, 6 873 received nega tive d ecisions an d 5 037 are still pending. Inmany cases the official records had been destroyed during the war and regrettably people are not allowedto provide evidence in the form of statem ents related to their work ex perience.

40. Lastly, the Com missioner notes the nee d for the authorities to step up the e fforts aimed at theimplem entation of the CLNM related to the use of languag es a nd scripts of national minorities. TheCommissioner was informed that there are eight Serbian language schools in the county of Vukovar-Srijemand four mixed Croatian-Serbian schools in the town of Vukovar where the knowledge of customs,language s and scripts of national minorities is also promoted in k indergartens. The Com missioner hasnoted the reported efforts to modify the current City Statute of Vukovar so that it allows the use of thecyrillic script in public and official communication. It seems that this plan is expected to be clarified afterthe 2011 census.

Certain issues concerning refugees and immigrants

41. The Co mm issioner has noted that the Law on Foreigners entered into force in Janua ry 2008 and a newasylum law was adopted in 2007. According to UNCHR, the new asylum law that entered into force inJanuary 2008 constitutes a go od ba sis for a fair and e fficient asylum system. The asylum law introducedthe following: a subsidiary form of protection, a definition of refugees sur place , an accelerated procedureand a procedure at borders and in transit zones. The introduction of a more indep endent AsylumCom mission, as a se cond instance a ppea l body, is another positive fea ture of the law. Major problema ticprovisions of the Law concern the exclusion of interviews in the accelerated procedures and the lack of free


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legal aid in first instance a sylum cases.

42. Croatia is mainly a transit country and the first refugee was recognised in 2006. From 2006 until 200920 pe rsons were granted international protection in Croatia: 15 persons were recognised as refugees and 5were granted subsidiary protection. Asylum seekers are able to communicate through an interpreter duringthe entire process, but it is not clear if this is the case for new arrivals at the border. Legal counselling inthe first instance p rocedures is funde d by UNHCR. Free legal aid is available by the state only on app eal.The Croatian R ed Cross provides community services to asylum see kers, with an em phasis o n ass istanceto vulnerable groups such as women, single women with children, separated/unaccompanied children andthe elderly. Systematic identification and psycho-social counselling of victims of torture and inhuman ordegrading treatment are reported to be lacking.

43. During his visit to Croatia the C omm issioner visited the a liens reception centre in Je evo, used

ma inly for detaining m igrants subject to deportation. The centre, which ope ned in 1997, see me d to providedecent ma terial conditions. At the time o f the visit 19 migrants were de tained there (the m axim umcapacity is 96 p ersons), including 5 asylum s eek ers. The C omm issioner was concerned to learn that someof the m igrants are de tained for very long periods of time (6-7 mo nths). Certain detainee s with whom theCom missioner spok e indicated that the information they receive concerning their detention anddeportation is in Croatian and thus they were not really aware of their legal status. Also it seemed thatsome detainees expe rience difficulties in obtaining lega l aid to challenge their detention in a timelymanner, even though the detention centre is in principle open to NGOs and lawyers.

44. The Com missioner is concerned that the de tained m igrants subject to de portation have to p ay for theiraccommodation (HRK 235 per day) if they can afford it. It is unclear how the authorities define whether thedetainees are able to pay for their accomm odation. The Com missioner is equa lly concerned by informationaccording to which unde r current p ractice migrant d etaine es who cann ot affo rd to pa y for theaccomm odation risk facing an entry ban in future.

45. The Co mm issioner is concerned a t the absence of a permane nt reception centre for asylum see kers.There is now a temporary reception centre for asylum seekers in Kutina, run by the Ministry of Interior.UNHCR ha s suppo rted the e stablishment of this centre a nd provides funding for legal a id and p sycho-

social services there through the Croatian Law Centre (CLC) and the Croatian Red Cross (CRC ).46. The Com missioner was informed that in 2008 there were 97 una ccomp anied/sep arated childrenregistered in Croatia. None of them applied for as ylum. He noted with regret that despite the e xisting legalframework, no ade quate s upport schem e for unaccompanied/se parated children exists outside the asylumprocedure, nor are there any special reception facilities. Croatia is reported to lack a comprehensive policyin line with the Council of Europe standards concerning the reception, accommodation and integration of unaccomp anied/sep arated children. 11

47. Finally, the Commissioner noted that there is a legal framework for the protection of victims of trafficking. The trafficking of human beings was criminalised in 2004. Moreover, the authorities of Croatiahave adop ted a national program me a gainst trafficking in human b eings and a national action plan for theperiod 2009-2011. Croatia ratified the UN Convention o n transnational organised crime and the protocol ontrafficking in human beings, as well as the Council of Europe Convention on action against trafficking inhuman beings. In 2009 eight victims of trafficking were identified. However, expert organisations haveindicated that the num ber of actual victims is e stimated to be much higher.

ustice system - Legal aid

48. The Com missioner has noted with concern that a considerable num ber of judgments d elivered againstCroatia by the European Court of Human Rights, from 2004 to 2009, concern excessively delayed justice incivil and administrative proceedings 12 as well as in the context of enforcem ent proceedings. 13 As of April2010, the ex ecution by Croatia of m ore than thirty such judgments rema ined unde r the supervision of theCouncil of Europe Com mittee of Ministers.

49. Croatia ha s implem ented a comprehensive judicial reform o n the basis o f an Action Plan ad opted in2005, in order to fully align the justice system with the requirements of the European Convention onHuman R ights and the Courts judgments. The ba cklog of unsolved cases ha s reportedly decrease d by atleast 50% since 2005. The Criminal Procedure Law (2008) and the Law on Amendm ents to the C ivilProcedure Law (2008) introduced new forms of accelerated proceedings. The Mediation Law was amendedin June 2009 and court med iation ha s be en introduced in municipal, county and comm ercial courts. TheCom missioner has noted that in 201 0 the Ministry of Justice started the revision of the Action Plan on thereform o f the judiciary with a view to enh ancing fu rther e fficiency in de livering justice.

50. Many displaced persons and their families are in nee d of counselling and a ssistance to be able toreturn and enjoy their basic rights, especially since return procedures in Croatia are reported to be lengthy

in nature. This has been highlighted b y almost all the non-governmental organisations that theCom missioner me t. An effective system of free legal a id is of crucial imp ortance to m igrants, includingasylum se eke rs, especially those in detention without sufficient m eans to secure legal counsel.

51. The Com missioner has noted with interest the governments d etermination to cope with this issue. Anew Law on Free Legal Aid entered into force in February 2009. The Free Legal Aid Department which wascreated in the Ministry of Justice k eep s a register of a ssociations a uthorised to provide free legal aid. Sofar twenty eight associations and two legal clinics have been registered. Moreover the above Department isan a ppellate bod y in the procedure of g ranting legal a id and it performs adm inistrative supervision for theimplem entation of the Law on Free Legal Aid. A public awareness camp aign was a lso launched tofamiliarise the general public with the provisions of the Law on Free Legal Aid. The overall budget for freelegal aid in 2010 a mounts to 941 492 (in 2009 the budge t allocation was m ore than one m illion euros).

52. NGOs providing free lega l aid ha ve qualified a s complicated the e xisting framework and conditionsconcerning funding. They have also indicated to the Commissioner that no contracts were offered in 2010and that the am ount they receive per year is fairly low (approxima tely 1 000). The Com missionerwelcomes the Croatian authorities willingness to further improve the system of free legal aid. It was


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reported that the payments to providers increased and that there would be a further growth in the comingfour years. The Ministry of Justice ha s also indicated that the free leg al aid application forms ha ve bee nsimplified and the num ber of the pages is now 4 instead of 7.

Conclusions and recommendations

53. The Com missioner comme nds the Croatian authorities efforts to resolve the crucial hum an rightsissues arising out of the forced displacement that occurred during the 1991-1995 war. He underlines thatthe right to voluntary return in safety and dignity is a fundame ntal, internationally established principlecorresponding to a right of all refugees and I DPs. 14

54. Thus the Com missioner highlights the need for the national authorities of the countries in the regionof the former Yugoslavia to take a ll possible me asures to resolve the serious rema ining issues affecting

the lives of the displaced pe rsons and their families, be they inside or outside o f their territories.55. The Com missioner considers pos itive the discussions held on 25 March 2010 in Belgrade in the contextof the International Conference on Durable Solutions for Re fugees and IDPs. He e ncourages all countriesconcerned to b e p roactive and continue their co-operation in a sustained a nd systema tic ma nner.

56. Any measures should be based on updated, reliable data on the numbers and situation of refugees,IDPs a nd returnees. The C omm issioner urges the authorities in Croatia and the relevant neighbouringcountries to enhance their co-operation, including with UNHCR, in order to create immediately an updated,harmonised database.

57. The Com missioner calls on the Croatian authorities to accelerate their efforts a imed at clearing thelarge parts of the countrys territory, especially agricultural lands and forests, which remain contaminatedby landmines and ERW. The Com missioner notes that this is an obligation emana ting not only from the1997 Mine Ban Treaty but also from Croatias obligations arising notably from the funda mental p rovisionof Article 2 of the European C onvention o n Hum an R ights where everyones right to life ha s be en e nshrinedand corresponds to p ositive ob ligations on the part of all states pa rties.

58. The Co mm issioner rema ins concerned about the situation of the ethnic Serb refugee s and IDPs andcalls on the Croatian authorities to take all necessary measures to ma ke these pe rsons sustainable returnpossible by facilitating their access to citizenship, housing, property and employment.

59. The authorities are e ncouraged to ensure the full participation of m inority mem bers in all relevantaction planning and decision making, in accordance with Council of Europe standards. 15 In this context, theprovisions of the La w on the Us e of a National Minority Languag e a nd Script should be fully implem ented.An affirmative action policy is also needed with respect to returnees and the reconciliation of communities.Such measures will strengthen the inherent pluralism, social cohesion and stability of democracy in Croatia.

60. Recalling the relevant European C ourt of Human R ights judgme nts as well as R esolution 1708 (2010)on solving property issues of refugees and internally displaced persons , adopted by the Parliamentary Assemb lyof the Council of Europe, the Commissioner urges the Croatian authorities to pay particular attention to thefull and e ffective e njoyment o f property rights by displaced pe rsons. The p ending cases concerningrepossession of property should be dealt with promptly in full compliance with the relevant case-law of theEuropea n Court of Huma n Rights. The process of reconstruction of houses affected by the war needs to beaccelerated and the competent authorities manpower is to be properly reinforced.

61. Particular attention should also be paid to the issue of agricultural land that was cultivated before thewar by people who fled and who now wish to return and stay in Croatia. The authorities should deminethese pieces of lan d imm ediately and provide all necessary help to displaced pe rsons and returnees whowish to stay and cultivate the land they used to ha ve before 1991. A just solution should be found for theissue of agricultural lands that for a variety of reasons were not registered before the war but werecultivated b ona fide. In this context, me mbe rs of national m inority groups concerned should be providedwith proper information and if necessary with free legal aid.

62. The Com missioner is concerned by the situation of former OTR holders who do not wish to or cannotreturn to Croatia and thus benefit from the HCP . The local integration of thes e pe rsons should befacilitated by their former and new home countries. Effective remedy, including adequate compensation,according to the es tablished principles of international law, should b e p rovided to any former OTR holderwho has lost their rights following proceedings that did not correspond to the standards of a fair trial and/orto the principle of non-discrimination.

63. The Com missioner calls on the authorities to continue to improve the HCP , which m ay include a b uy-off option for non-conflict affected areas a nd should take into consideration the ho using nee ds o f applicantswho ha ve missed the 2005 d eadline concerning housing in o ut-of-ASSC urban a reas. The pendingapplications should be p rocesse d without delay and in a fair and transpa rent manner.

64. Particular care should be given to the issue of convalidation and recognition of years worked bydisplaced persons towards a pension d uring the p eriod 1991-1995 in areas not under government control.This is of particular importance for the life of all displaced persons and their families, especially of theelderly ones.

65. As regards returnees who do not hold Croatian nationality and express the wish to stay and integratein the country, the authorities should facilitate their acquisition of Croatian nationality. In this regard, theCom missioner highly recomme nds the ratification by Croatia of the Europea n Convention on Nationalityand of the Co uncil of Europe Convention on the a voidance of statelessness in relation to State succession.

66. With regard to asylum se eke rs, the Co mm issioner welcomes the m easures a dopted b y the Croatianauthorities to build a n as ylum system in line with international and European s tandards. He calls upon theCroatian authorities to further improve asylum legislation and practice in order to address in particular thelack of free legal aid in first instance proceedings and the exclusion of interviews in the acceleratedprocedures.


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67. The Co mm issioner welcomes the fa ct that the detained as ylum seek ers in Croatia are not required topay for their accomm odation a nd e ncourages the authorities to e xtend this p ractice to all migrantdetainees. Moreover, the Com missioner urges the C roatian a uthorities to remedy the problem of thelong-term detention of m igrants and the imposition of a n entry ban for non-payment. The authorities arecalled upon to be particularly attentive to and establish an efficient system of identification that would leadto psycho-social counselling and the e ffective protection of victims of torture and inhuman and degradingtreatment, as well as of victims of trafficking.

68. The Co mm issioner underlines the nee d for Croatia to es tablish a permane nt reception centre forasylum seekers to strengthen current limited capacities. He also urges the authorities to provide for anade quate support scheme and a special reception facility for unaccompa nied/sepa rated children in line withthe relevant Council of Europe standards. This particularly vulnerable group of children should be grantedaccommodation, access to quality education and specific protection from violence and risks of trafficking.

69. Finally, the C omm issioner urges the Croatian authorities to step up their efforts aime d a t enhancingthe efficiency of the national justice system, in accordance with the relevant judgments of the EuropeanCourt of Huma n R ights. Particular attention sho uld be paid to the problem of e xcessively lengthy judicialproceedings, which affect in particular vulnerable social groups such as displaced persons and asylumseek ers. The Com missioner recalls the Council of Europe Com mittee of Ministers Re commend ation (2010)3 and highlights the ne ed to e stablish effective dom estic reme dies for all cases concerning ex cessivelength of proceedings. The authorities are urged to continue to look with particular care into the issue of free legal aid for those pe rsons in need thereof, and e nhance the national legal a id system so that accessto justice becomes a real possibility for everyone.

II. Proceedings relating to post-war justice

Legal framework and international co-operation

70. Com missioner has noted that Croatia is vested with an ade quate lega l frame work relating to theprosecution of war-related crimes, relevant co-operation with neighbouring countries and with theInternational Criminal Tribunal for the Former Yugoslavia (ICTY). Croatias co-operation with the ICTY isregulated by the Constitutional Law on Co-operation of the Republic of Croatia with the InternationalCriminal Tribunal of 1996. Th e Criminal Code was no tably amend ed in 2004 to include the new criminaloffences of crime against hum anity and preparation of criminal acts aga inst values protected byinternational law. The amendments also introduced into domestic law the well-established principle of superior or command responsibility which concerns the responsibility of military and civilian superiors forcriminal acts committed by their subordinates.

71. The Com missioner welcomes the Croatian authorities ongoing e fforts to enhance co-operation in thisfield with neighbouring countries. The co-operation of Croatian police with their counterparts in Bosnia andHerzegovina and Serbia was reported to be efficient. The Comm issioner welcomes the willingness of theCroatian authorities to complete the work aime d at e stablishing a sp ecial database of commo n war-relatedcrimes covering the region of the former Yugoslavia.

72. The Co mm issioner has noted that Croatian prosecutors co-operate in the ex change of e vidence andthe transfer of some war-related criminal cases with prosecutors from Bosnia and Herzegovina and Serbia.In 2005, the Chief State Prosecutor of Croatia signed a protocol with his counterparts of Bosnia andHerzegovina and Serbia a nd Montene gro, establishing a me chanism for direct co-operation at the pre-trialstage. Exchanges o f evidence, documents and data b etween prosecutors of the a bove countries havereportedly led to investigations, prosecutions and convictions.

73. The Com missioner was informed that in Croatia a nd ne ighbouring countries constitutions prohibit theextradition of na tionals. This has p roven to b e a problem contributing to the impunity of a large num ber of war-related crimina ls. For exa mp le, Branimir Glava was convicted b y a Croa tian court for war-relatedcrimes, found refuge in Bosnia and He rzegovina and has not bee n extradited. The Com missioner notedwith interest that in February 2010 Croatia a nd Bosnia a nd Herzegovina signe d a n Agreement on mutualexecution of court decisions in criminal matters. Under this Agreement convicts with dual nationality (of theabove two states) can no longer escape to one country and thus avoid serving their sentences which arenow to be exe cuted in either state.

Co-operation with the ICTY

74. The Com missioner notes that unde r its completion strategy, 16 the ICTY has concentrated on theprosecution and trial of the most senior leaders while referring other cases involving medium and lower-ranking defe ndants to national courts. Thus the ICTY continued the proceedings concerning the Croatianformer generals Gotovina, Ce rmak a nd Markac. The trial comm enced in March 2008 and the judgment isexp ected to be rende red in 2010. The three defenda nts are charged with war crimes and crime s ag ainsthumanity arising from the 1995 military offensive Operation Storm in the region of Krajina.

75. The Commissioner has been informed of and concerned that the ICTY has experienced problems ingaining access to im portant documents related to the abo ve-mentioned p roceedings. He noted that uponthe personal initiative of the Prime Minister of Croatia in October 2009, an Inter-Agency Task Force wasestablished a nd a report was produced identifying the existing adm inistrative gaps and the m easures thatshould be adopted for identifying missing evidence. On 9 April 2010 the Co mm issioner was informed b ythe Croatian Ministry of Justice that m any documents relevant to these proceedings ha d disa ppea red,having been withdrawn by several officers from the Ministry of Defence. In this context, criminalproceedings against 20 pe rsons had be en instituted and missing files in the Ministries of Defence a nd of Justice have be en soug ht.

76. In accordance with the completion strategy, the ICTY transferred to Croatia in November 2005 thecase of Ademi an d Norac for crimes allegedly committed in the Me ak pocket in 1993. In a ddition tocharges of ordering indiscriminate attacks, Adem i and Norac were charged on the bas is of comm andresponsibility for failing to prevent and punish crimes by their subordinates, as a result of whichapproxima tely 30 Serb civilians were killed. The dome stic proceedings e nded in 2009, following a judgmentby the Croatian Supreme Court, with the first defendants acquittal and the sentencing of the second to six


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years imprisonment. 17

77. The Com missioner underlines the importance of transferring, when po ssible, such cases to nationalurisdictions, in accordance with the principle of subsidiarity of international justice. This is a process thatalso contributes to the strengthening of national judicial systems. In this regard the project for nationalprosecutors and young professionals from the former Yugos lavia, set up b y the ICTY a nd the Europea nCom mission, is noted. As a result of this project, in June 2009 three prosecutors from Bosnia andHerzegovina, Croatia and Serbia, started working as liaison prosecutors with the Office of the ICTYProsecutor in the Hag ue.

Domestic proceedings concerning war-related crimes

78. The Com missioner has noted that since 1991 more than 600 people ha ve been convicted for

war-related crimes, another 600 ha ve bee n indicted and several hundred m ore are unde r investigation inCroatia. Croatia has issued 700 international arrest warrants for war crime suspects. However, it has beenreported that from to 2005 to 2009 only 80 war-related criminal cases have b een prosecuted. 18 Many casesstill remain unresolved, and in a numbe r of cases the pe rpetrators of war-related crimes have not be enidentified.

79. During his visit the C omm issioner noted that serious efforts have bee n unde rtake n by the Croatianudicial authorities to rectify domestic judgments delivered in the 1990s in reportedly biased, war-relatedtrials. The Supreme Co urt of Croatia has qua shed a numbe r of disputed verdicts and remitted cases forretrial. Thus, the Supreme Court rem itted the case of Arambasic , a U.S. citizen and former Serb policeofficer, for retrial in April 2009. The Supreme Court ordered Aramba sics release as he ha d a lready s pentsix years and eight months in detention, considering that further detention would not be proportional tothe expected sentence.

80. Moreo ver, in 2009 p rosecutors reviewed all war-related crimina l cases in which there were ind ictme nts orongoing investigations. For 254 of the 1 242 individuals involved in these cases, prosecutors e itherdowngraded the charges from war-related crimes to armed rebellion, for which amnesty would apply, orannulled p roceedings for other reaso ns, such as insufficient evidence.

81. The Com missioner welcomes the adop tion of the provisions of the 2009 Criminal Procedure Actproviding for the reo pen ing of cases concerning war-related crimes , which were tried in absentia. The casescan be reope ned up on the presentation of ne w evidence by either the d efenda nt or the prosecutor.Impo rtantly, the defend ant is no longer required to be present as use d to be the case. Prosecutors haverequested the reopening o f approxima tely 20% of cases tried in absentia . According to the Office of theChief State Prosecutor, in 2009 prosecutors requested that trials be reope ned for 93 of the 464 individualsconvicted in absentia and courts of o riginal jurisdiction granted requests on b ehalf of 48 defend ants andrejected cases involving 24.

82. The Commissioner is concerned that despite this progress, war-related criminal trials in absentia againstethnic Serbs continued, despite the reported opposition from the State Attorney's Office. In 2009 54% of Croatian Serb defendants were reported to be tried in absentia , in the contex t of two large trials in thecounty court of Vukovar. 19 The quality of trials in absentia was reported to be low. For exam ple, in som ecases the right to a defence counsel was reported not to have been properly safegua rded. This p racticehas so fa r led to a perception, espe cially in the refugee community, that ethnic Serbs, regardless o f theirwar-time past, are potentially subject to arrest and prosecution upon return to Croatia. A persistentproblem in the presentation of evidence in such cases has been the unwillingness o f witnesses, pa rticularlythose from Serbia o r Montenegro, to come and testify before the courts.83. The Co mm issioner has noted an increasing awareness by the authorities in Croatia of the nee d toensure that all war-related criminal cases are investigated and prosecuted without any ethnic bias. InOctober 2008 the State Prosecutors Office adopted instructions for county prosecutors which establishedgeneral criteria in war-related criminal cases to avoid bias against ethnic Serbs. The Ministry of Justiceinformed the Com missioner that one third of pe rpetrators are former me mbe rs of the Croatian a rmedforces. Ethnic Croats were defendants in a number of high-profile cases, such as the one concerningBranimir Glava who was found guilty in ter alia for his comma nd responsibility, having failed to preventsubordinates from torturing and murdering civilians.

84. The Commissioner is concerned that in several cases service in the Croatian army or police wasconsidered a s a mitigating circumstance. In the aforeme ntioned, high profile case of Ademi and Norac , whichwas transferred from the IC TY, Norac was f ound guilty of war crime s a gains t civilians. A m itigating fa ctor insentencing Norac was his service in the Croatian army. The Supreme Court reduced his sentence fromseven to six years imprisonment and upheld Adem is acquittal. In January 2010 the Croatian SupremeCou rt confirmed the conviction o f Miha jlo Hrastov fo r ruthless ly murdering thirteen a nd injuring twodisarmed former Yugos lav Peoples Army (JNA) mem bers, but reduced his se ntence from eight to sevenyears imprisonme nt partly because the defenda nt served in the Croatian police a nd pa rticipated in the1991-1 995 war.

85. Wa r-related criminal trials a gainst m emb ers of C roatian m ilitary and police un its are reported to beoften burdened by pressure on beha lf of veterans associations, local politicians and the public. In theaforementioned Glava case the na tional parliame nt granted pe rmission to conduct criminal p roceedingsbut withheld permission to detain the d efenda nt who was an MP. Some high ranking officials also tookpublic positions in favour of members of the Croatian army or police accused of war-related crimes onseveral occasions.

86. As regards am nesty by virtue of the Law on Pardon, in a numbe r of cases where investigations ha vefailed to substantiate original charges of war-related crimes, courts have convicted the defendants onreduced charges, thereby m aking them eligible for amne sty. According to the Office of the C roatianProsecutor General, between 2004 a nd 2005 investigations and prosecutions were ab andone d or theoriginal charges were reclassified a s a rmed rebellion for about 750 mem bers of Serb paramilitary groups.One s uch case is the one of Maslovar , extradited from Greece in April 2008 based on a war crimeinvestigation. After extradition, his charge was reclassified as armed rebellion, amnesty was later granted


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and thus he was release d from detention.

87. The Co mm issioner has noted that the system of s upport to witnesses and victims has beenprogressively developed. T he ne w Criminal Procedure Law provides for the use of testimony m ade througha video link. Five county courts have be en e quipped to use this type o f testimony. In 2009 a video linkwas used by the county courts of Zagreb, Rijeka and Vukovar. As regards protection of witnesses, it hasbee n noted that the name s of witnesses, their statements a nd court records have be en pub licly disclosedto the media in the Glava case. The journalist who covered the case reportedly received death threats andrefused to testify. The new Criminal Procedure Law provides for confidentiality of investigations and theprotection of witnesses.

88. The Department for Support to Witnesses and P articipants in Wa r Crime Proceedings was e stablishedin 2006 to provide legal, physical and psychological support to witnesses. It was reported that the

Department offered support to 1 800 victims from 2006 to 2009. However witness support still appears tosuffer from shortcomings and a numbe r of witnesses ha ve bee n subjected to intimidation. 20

89. The Law on Application of the Statute of the International Criminal Court and Prosecution of CriminalOffences a gainst the International Law of War and International Huma nitarian Law provided inter alia forthe establishment of specialised chambers within the county courts in Zagreb, Osijek, Rijeka and Split, toadjudicate on war-related criminal cases. One of the main aims of this initiative was to protect witnessesfrom pressure and intimidation. The first transfer to a spe cialised chambe r took p lace in 2006 base d onthe Chief State Prosecutors concerns over impartiality and witness intimidation in the local jurisdiction.

90. Rep resentatives of the Ministry of Justice informed the Com missioner that in the past five years,proceedings for war-related crimes were conducted before 21 county courts, in the environment and thecommunity where the crime had been committed. According to the authorities this indicates the readinessand maturity of domestic courts in prosecuting and trying all war crimes. However, a number of courts lackthe expertise and infrastructure for witness protection and support. For example they do not have separateentrances for the public, the accused and the witnesses. The Commissioner was informed that the courtswith specialised chambers have been equipped to protect witnesses a nd use videoconferences.

91. Another major issue relating to post-war justice is the victims right to reparation under the establishedprinciples of international law. The Commissioner is concerned that national authorities in the countries of the former Yugoslavia, including Croatia, have not manag ed so far to establish an effective me chanismthat would ensure reparation for the victims of war-related crimes and their families. Indeed, post-warustice may not be obtained solely by prosecuting and convicting war criminals but also by restoring thehuma n dignity of all victims who ha ve suffered p ecuniary and especially non-pecuniary dama ges.

92. Croatian legislation provides for the possibility for war victims and their families to file compensationclaims against the State. The Law on the R espons ibility for Damage Cause d by Acts of T errorism andPublic Demonstrations as well as the Law on the R espons ibility of the Rep ublic of Croatia for Dama geCause d by Mem bers of Croatian Armed and P olice Forces during the Home land Wa r entered into force in2003. However it appea rs that attempts by m any victims fam ilies to receive compens ation for dam agecaused by the loss of their family members through private lawsuits against the State failed. It wasreported that so fa r at least 50 claims for compe nsation were filed but a ll have be en rejected. 21

93. Last but no t least, the C omm issioner underlines that the Croatian authorities efforts in identifying theapproxima tely 2 000 pending cases o f missing pe rsons due to the war, should continue unaba ted. PrimeMinister Kosor assured the Commissioner that despite current budgetary constraints the ongoing work of the Croatian authorities in this field will continue and be supported by all funds necessary. TheCom missioner has also no ted with satisfaction the increase d co-operation and contacts that took place in2009 be tween the compe tent Croatian and Serbian a uthorities, including m issing persons fam ilyassociations from both countries, in order to resolve the fate of the war victims who are still reportedmissing.

Conclusions and recommendations

94. The Com missioner wishes to underline the importance for post-war pea ce and stability of theinternational legal principles of accountability, justice and the rule of law. He recalls the 2005 UN BasicPrinciples a nd Guidelines,22 notably states obligation to effectively investigate and take action ag ainst allpersons allege dly responsible for gross hum an rights violations and s erious international huma nitarian lawviolations.

95. At the same time, everyone claiming to be a victim of such acts should have effective access to justiceand be provided with effective remed ies, including reparation. The C omm issioner urges the Croatianauthorities to take mea sures to ens ure fair and a dequa te reparation to victims of war-related crimes andtheir families, in line with the established principles of international law as reiterated in the 2005 UN BasicPrinciples and Guidelines. To this end, the authorities are urged to continue their efforts to enhance thenational system of free lega l aid, so that this is accessible by everyone in ne ed thereof (see also ab ovesection I).

96. The Co mm issioner has noted that the ICTY has played a crucial role in setting standa rds of responsibility for war-related crimes in Croatia. He urges the Croatian authorities to continue strengtheningthe effectiveness of their co-operation with the ICTY.

97. The Commissioner supports the reform measures aimed at strengthening the independence,impartiality and professionalism of the judiciary. Cases concerning war-related crimes should besystematically examined and followed through in domestic courts, in accordance with the standards of promptness a nd fairness established notably by the Europea n Court of Human R ights.

98. The Commissioner welcomes the authorities efforts aimed at rectifying past, war-related crimeudgm ents and reviewing the one s de livered in absentia. As a matter of principle, persons convicted inabsentia should have access to an effective remedy, in accordance with the fair trial standards establishedby the Europea n Court of Human R ights. 23 All persons wrongfully convicted and punished should have


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effective access to compensation, in accordance with Article 3 of Protocol No 7 to the European Conventionon Human Rights.

99. The Co mm issioner urges the C roatian authorities to take effective me asures to ensure that cases of war-related crimes are always prosecuted in an unbiased manne r, independently of the a llegedperpetrators ethnic or other background, in accordance with the general prohibition of discrimination of Protocol No 12 to the European Convention on Human Rights. Service in the Croatian army or police shouldnot be a mitigating circumstance for serious human rights violations. All remaining war-related criminalcases sho uld be investigated without delay.

100. The Commissioner encourages the reinforcement of the four county courts which specialise inwar-related crime trials, as well as the establishment of efficient, special investigation departments therein.Enhanced specialisation will contribute to raising the quality of relevant proceedings.

101. The Com missioner urges the a uthorities to enha nce regional co-operation, facilitate the participationof witnesses in war-related criminal proceedings and take all necessary measures to effectively protectthem from po ssible intimidation attempts.

102. The Com missioner is concerned by the fact that requests concerning the ex tradition of na tionals areoften denied by Croatia and other neighbouring states a nd highlights the ne ed to investigate andprosecute all persons, without any distinction, who have allegedly committed war-related crimes. Croatia,together with its neighbouring countries, should further reduce the regional impunity gap. The measureswhich m ay nee d to be taken include constitutional ame ndme nts to allow extradition a ndbilateral/multilateral agreements to facilitate extradition or to ensure that convicts always serve theirsentences in one country.

103. The Croatian authorities are encouraged to continue with the same energy and d etermination theirefforts, at national and regional level, aimed at identifying the approxima tely 2 000 pending cases of persons m issing due to the war. In this regard, the Com missioner urges the authorities to ratify the 2006International Convention for the Protection of All Persons from Enforced Disappearance, which was signedby Croatia on 6 February 2007.

104. Lastly, the Commissioner wishes to note that post-war justice and peace call for measures far beyondthe necessary criminal proceedings and victims reparation. He recalls Council of Europe ParliamentaryAssembly Recommendation 1880 (2009) on history teaching in conflict and post-conflict areas and reiteratesthe significant role of history teaching for reconciliation in post-conflict situations, such as the one in theregion of the former Yug oslavia. Genuine k nowledge of history facilitates unde rstanding, tolerance andtrust between individuals, especially the young ones, and peoples. All countries concerned should realisethe vital need to teach history without reso rting to one sing le interpretation of events. The Co mm issione rstresse s that it is only through a n ope n dialogue , knowledge of the truth and deep reflection thatme mbe rs of po st-conflict dem ocracies in Europe m ay attain social cohesion and preserve their inherent,valuable pluralism. 24

III . Human rights of Roma

Overview of the situation of Roma in Croatia

105. Rom a in C roatia a re currently estimated by the a uthorities to numbe r between 30 and 40 thousand,while the 2001 na tional census had registered 9 500. 25 A large num ber of Rom a have m igrated, espe cially

in the pas t twenty years, from other parts of the region of the former Yugos lavia. It has bee n noted thatsome Rom a declare themselves as m emb ers of other ethnic groups and a s ignificant number of them arede fa cto or de iure stateless (see third sub-se ction below). Whilst Roma have be en present in Croatia formore than 600 yea rs and are recognised as a national minority, the pream ble of the Co nstitution does notexp ressly mention them amo ng the autochthonous national minorities. 26

106. Croatia has ratified the Framework Convention for the Protection of National Minorities and theEuropea n Cha rter for Regional or Minority Language s. A reservation has been ma de though in respect of Article 7, paragraph 5, of the Charter, which results in the non-application of the protective provisions of the Cha rter to non-territorial language s, including the R oma ni languag e.

107. On the dom estic level, Croatia ha s put in place a solid legal ba sis to protect and p romote the rightsof national minorities, including the Constitutional Law on the Rights of National Minorities (CLNM), the Lawon the Use of a National Minority Language and Script, and the Law on Education and Schooling in aNational Minority Language and Script.

108. Similarly to the s ituation in other mem ber states, Rom a in C roatia fa ce marginalisation seriouslyaffecting, inter alia, their social and economic well-being. Among factors contributing to the persistent

ma rginalisation of Rom a, the National Programme for Roma has indicated reduced a ccess to he althcareservices, low educational level, very poor housing conditions and low emp loyment rates. The Com missionerhas noted that a n imp ortant numb er of R oma in Croatia are recipients of welfare allowances (reportedlymore than 50% o f the current Roma population).

109. The Co mm issioner welcomes a series of me asures taken by the Croatian authorities to improve thesituation of the Rom a, in pa rticular the adoption in 2003 of the comprehensive National Programm e for theRom a (NPR), as well as the Action Plan for the Decade of R oma Inclusion 2005-2015. The NPR a ims toimprove the protection of the rights of Rom a in fields such as social welfare, education, employme nt,healthcare and the fight against discrimination, inclusion in social and political life and preservation of theRoma culture. The priorities so far are reported to be regularisation of civil status, housing and education.

110. The Prime Minister, Ms Jadranka Kosor, chairs the commission for monitoring the im pleme ntation of the NPR a nd is the national coordinator for the Action Plan for the Decade for R oma Inclusion. PrimeMinister Kosor assured the Com missioner of he r governments sincere comm itment to continuing theirefforts in order to improve the situation of Rom a in Croatia as well as the fight against all forms of discrimination.


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111. The Council for National Minorities, composed of representatives of na tional minorities, is in charge of allocating funds for national minority associations and institutions and their programm es. Th e funding andthe numb er of programme s have grown every year since the establishme nt of the Council in 2002. Theauthorities informe d the C omm issioner that in 2009 overall HRK 39 000 000 (5 368 605) was spent toimprove the situation of R oma in Croatia.

112. Drawing upon his discussions with Roma representatives, the Commissioner notes however that thereappe ars to be a p erception of lack of transparency and accountability in the process of allocating funds.Many Rom a still do not believe that there have be en tangible, positive change s, feeling also that theyhave not been sufficiently involved and consulted on the matters related to their minority. This is a realchallenge as the Ro ma population is he terogeneous. However, all major processes affecting their livesneed to be inclusive and bas ed on ge nuine dialogue an d open, systema tic consultations.

Participation of Roma in public life113. The Co mm issioner has taken no te of the efforts undertake n by the authorities to improve therepresentation of the R oma minority in public life. One Ro ma MP was e lected in 2007. The Com missionerhas noted with satisfaction that minorities vote for a general and a minority list in the parliamentaryelections, which lea ds to a minimum, fixed representation of minorities in the Parliament. Moreover, Rom arepresentatives are me mbe rs of the commission for monitoring the implem entation of the NPR as well asof a working group monitoring the im pleme ntation of the Decade o f Rom a Inclusion. The CLNM providesfor proportional representation of minorities in executive bodies. Article 22, paragraph 2, of the CLNM alsopromotes the representation of national minorities in public administration and the judiciary. 27

114. The Commissioner notes that despite these commendable measures the representation andparticipation of Roma at the levels of national and local authorities remains low. According to official datathe Roma is the least represented minority in public administrations (one representative), while theimplem entation of the recruitment plan for national minorities ha s a pparently not substantially improvedthe level of emp loyment of Rom a in public administration. 28 A longterm strategy to imp leme nt theem ployment provisions contained in the CLNM appe ars to be lacking.

Statelessness115. The fact that a significant numb er of Rom a, esp ecially those who have migrated to Croatia from otherparts of the region of the former Yugoslavia during the wars, are stateless rema ins of de ep concern to theCommissioner. This is a situation that seriously affects the enjoyment by these persons of vital civil, socialand economic rights. UNHCR and civil society estimate that in Croatia there are 1 000 de facto statelessRom a while a further 2 000 persons a re of unk nown citizenship a t risk of statelessne ss (reportedly citizensof the former Socialist Federal Repub lic of Yugo slavia). Roma ni NGOs have estimated that 25% of thecurrent Roma population do not have citizenship do cuments and, thus, do not have a ccess to socialbene fits, em ployment, voting rights, or property restitution. The NPR has identified the legal status of Rom a a s a priority. Pursuant to the NPR, mob ile teams consisting in pa rticular of representatives of thecompetent Ministries, centres for social welfare and Roma NGOs are charged with providing assistance,legal advice and information to the Rom a popu lation.

116. An EU-UNHCR project on Roma is also under way since August 2009 covering the region of theWestern Balkans, including Croatia. The project will run for a period of 18 months in cooperation with theOffice of the Omb udsma n. The a im of the project is the acquisition of citizenship by 100 R oma andprovision of assistance to another 1 000 individuals in order to regularise their civil status.

117. Notwithstanding these s teps, there are se rious o bstacles for Rom a in access to citizenship orresidence permits: the current legislative framework, such as the provisions requiring knowledge of Latinscript or Croatian culture; shortcomings in the administration, such as excessive procedural delays; andcomplicated procedures. The Law on C roatian C itizenship indicates that citizenship may b e refused if theapplicant does not know the Croatian languag e or Latin script. Most of the elderly Rom a a nd m any Rom awome n are illiterate and therefore cannot a bide e asily by the adm inistrative requireme nts. In a ddition,ma ny Roma , espe cially those who ha ve migrated during the wars in the region of the former Yug oslavia,do not possess civil status-related certificates necessary for their naturalisation.

118. The Croatian authorities recognise these p roblems, pointing to shortcomings in the ap plication of thelegislation and subsequent delays in the procedures. According to data provided by Ministry of Interiorrepresentatives, between August 2007 and April 2010 188 Rom a were g ranted Croatian citizenship and 70applications ha ve bee n rejected (ma inly because of the a pplicants alleged involvement in criminaloffences or inability to prove residence). The Com missioner has noted the particular problems encounteredby most R oma in identifying civil status-related d ocuments be cause they are poor and often unable toseek , or are unaware of the existence of free leg al aid. O ften they cannot afford to go to other countries of the former Yug oslavia to o btain docume nts required for citizenship app lications.

119. The Co mm issioner notes that a substantial reinforceme nt the free le gal aid programm e in order totarget more the Roma population would be highly beneficial for the regularisation of their civil status. TheCom missioner is concerned that the new Law on Free Lega l Aid (2009) excludes pe rsons of unregulatedlegal status in Croatia, thus hindering the access of ma ny Rom a to free leg al aid which is vital foraccessing the adm inistration and above a ll justice (se e a lso abo ve section I).

Access of Roma to education

120. During the visit to Croatia, many o f the C omm issioners interlocutors stressed the impo rtance of education of Rom a for their successful integration and a ccess to emp loyment. Indeed , education may a ctas a real catalyst for the promotion and respect of the huma n rights of R oma and for accelerating theirintegration in Croatian society.

121. The Co mm issioner has noted that the Croatian authorities have taken steps to improve theenrolment of R oma children in pre-school, primary and s econdary education. The num ber of Ro ma childrenenrolled in primary schools has risen in Croatia. The Croatian authorities have reported that in 2010 there


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are 5 000 Rom a children e nrolled in schools, 29 while in 2005 this number was only 1 000. In the county of Meimurje, visited by the Commissioner on 7 April, Roma children constitute 12% of all school pupils.However, in 2009 there were only 300 Roma children in secondary education and 12 in higher education inCroatia.30

122. The authorities have take n m easures to p rovide textboo ks, transportation, accomm odation indormitories and scholarships for Rom a students. Free textbook s, free transport and a ccomm odation instudents' dormitories as well as s cholarships for Rom a studen ts have be en provided. In Me imurje theauthorities have decreased the num ber of Rom a-only classes from 50 to 37. In this county, due toreported p oor knowledge of the Croatian langua ge a mong Rom a children who attend schools, the Ministryof Education has e mployed teaching assistants from the Ro ma community. These teaching assistants havereceived relevant training.

123. Despite these me asures, the Comm issioner has been informed of a numbe r of serious, persistingproblems. While the special language classes have been integrated into mainstream programmes, defacto segregation of Ro ma p upils persists in some schools. 31 Presently pre-school education isdecentralised (transferred to municipalities) and has a limited capacity for accommodating all children.Reg rettably pre-school e ducation las ts only a few months.

124. Progress on the successful comp letion of primary education is unsatisfactory. The Com missioner hasbeen informed that currently only 10 to 25% of Romani children finish primary school. 32 Furthermore,Rom a wome n are sub stantially disadvantaged regarding the comp letion of education and illiteracy, mainlydue to the unfortunate pheno meno n of underage p regnancies and ma rriages. It seem s that the drop-outproblem ha s not b een effectively addressed to date. Mo reover, in Meim urje the local authorities withwhom the Com missioner met informed him that they are in nee d of m ore human resources, especiallypsychologists, educators and social workers for Roma children.

125. The Co mm issioner has noted that in the judgment of 16 Ma rch 2010 de livered by the Grand C hamb erof the Europea n Court of Human R ights in the case of Oru and others v. Croatia , the Court found thatplacing Roma children in separate classes in primary schools was discriminatory. The application, lodged in

2003, concerned fourteen R oma applicants from Meimurje who a lleged that their segregation intoRom a-only classes deprived them of their right to edu cation and mad e them endure severe educational,psychological and em otional harm and, in particular, feelings of a lienation a nd lack of s elf-esteem .

126. The Court found that the placement of the applicants in Rom a-only classes during their primaryschool education had not been justified, in violation of Article 14 taken together with Article 2 of ProtocolN1 to the Convention. The Court underlined that temporary placeme nt of children in a s epa rate class onthe grounds that they lack an a dequa te comma nd of the languag e is no t, as such, automatically contraryto the Convention. However, in this case such placement, not based on objective criteria, affectedexclusively mem bers of the disad vantaged ethnic group of R oma and was not followed b y adaptation of the education system to the specific needs of the children. The Com missioner has noted with satisfactionthat the national authorities he m et during his visit expressed their determination to exe cute a nd complyfully with this judgment. The Commissioner will follow the relevant developments closely.

Access to employment, housing and healthcare

127. The Co mm issioner has noted that in the framework of the NPR and the Action Plan for RomaInclusion 2005-2015, the Croatian authorities have impleme nted various mea sures, including additionalschooling a nd ad ult vocational training, espe cially for young R oma wome n, to promote e mployme nt.

128. The Com missioner is concerned that despite these m easures, Rom a are reported to face ende micunem ployment. If emp loyed, the majority of Roma usually get seasona l jobs or short-term jobs onbuilding sites. The traditional businesse s, like bask et weaving, are u nfortunately disappe aring. Effortsaime d at requalification do no t appea r to be systematic. During his visit the C omm issioner was informedabout the successful implementation of a project that provided IT courses until 2009, which however maystop because of lack of necessary funding.

129. According to the NPR, the m ain obstacles to the e mployme nt of Rom a a re low educational level,em ployers' prejudices and ma rginalisation due to poverty. 33 It seem s that currently there a re no Ro maEmployment Advisors in the Croatian Employment Service, even though the NPR provided for theem ployment of six such Advisors. The Com missioner was informed a bout cases of a lleged discriminationin the process of employment in recent years, when young Roma who were invited to job interviews wererejected allegedly because of their ethnicity.

130. The Co mm issioner has noted certain progress in R oma housing, including the policy of legalisation of irregular Roma se ttleme nts. In the county of Meimurje, 9 out of 12 s ettlem ents have be en lega lised. 34

Since 2005 several infrastructure p rogramm es concerning Rom a s ettleme nts have b een launched. Anencouraging case in 2006 was the relocation of seventee n Ro ma families from flood-risk areas to newlypurchased houses in a safer area in the settlem ent of Donja Dubrava. The Comm issioner himse lf witnessed that the situation in the largely legalised settlements of Pribislavec and Loncarevo, inMeimurje, provides decent living conditions for Roma.

131. This is in sharp contrast to the situation in the irregular Roma settlement in Struge, near Zagreb,which the Co mm issioner visited on 7 April. The Com missioner noted that the living conditions of Rom a inthis settleme nt are substandard and may be qualified as d egrading. Repo rtedly 350 persons live there,including approxima tely 250 children. The site does not provide a

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