by Drago HEDL
Prime Minister Ivica Racan's invitation to Serb refugees to return to Croatia - forced by demands of the European Union, which views that issue as crucial for any discussion of a possible accession of Croatia to the European Union - will not be a cheap project. Racan would rather see that money invested in the construction of one of the highways that are pompously being open for traffic these days, which would have been possible if in the early nineties certain groups were not given license to defend the homeland by blowing up and setting on fire Serb houses. Although the problem of tenancy rights is also a cause for concern for Racan's cabinet, the compensation for damages for insane demolition and burning of privately owned houses could reach deep into the state budget.
The Croatian government was given until July 25 to respond to the request for just compensation in the case filed with the European Human Rights Court in Strasbourg under the name "Varicak v. Croatia". This case is only one of many in which Croatian citizens are demanding compensation for damages outside their homeland, mostly for two reasons - because of the violation of the right of access to the courts, and unreasonably long legal proceedings. In the case "Varicak v. Croatia", both reasons are invoked, so that it is very likely that the Republic of Croatia, for violation of Articles 6 and 13 of the European Convention for Protection of Human Rights and Basic Freedoms, will lose the case.
In August 1994, therefore almost nine years ago, Marica Varicak from Zadar submitted a civil suit against the Insurance Society Croatia and the Republic of Croatia, demanding compensation for her blown up and destroyed house in Zadar, in Put Bokanjca bb, which was blown up in the night between February 22 and 23, 1992. According to the report of the Zadar police, that night, as many nights before and after that date, was tumultuous. Arson and blowing up of houses was an ordinary occurrence those days in Zadar and in many other parts of Croatia.
Marica Varicak's house had about 600 meters square of living space, on three floors. The owner insured the house with the Insurance Society Croatia for $500,000, but was unable to cash in the insurance policy. In the filing with the Municipal Court in Zadar, submitted by the local office of the Insurance Society Croatia in connection with Marica Varicak's suit, the insurance society claims that "no insurance company in the world" includes insurance against "political risk". It is worth quoting a part of the document filed by the Insurance Society Croatia, which states that before 1991 "there were no cases of destruction of anyone's property on the territory of the Zadar county". However, after 1991 blowing up and arson of houses "became daily events, spread like an epidemic and were very numerous, which is obvious from the report of the Zadar Police for March 23, 1992, which states that on the same day the house of the plaintiff [Marica Varicak] was destroyed, another six buildings (seven including the plaintiff's house) were destroyed, some of them were set on fire while others were blown up with explosives. All of these buildings were owned by Serbs."
Therefore, Marica Varicak, even though she insured her house, cannot cash in her insurance policy since, as "a Serb" in Zadar in 1991, she had to be aware "of the epidemic" of blowing up and arson of houses and, therefore, that was at the time her "political risk".
Unlike the Insurance Society Croatia, the Croatian state found a much more elegant way out. The suit of Marica Varicak filed with the Municipal Court in Zadar collected dust until May 1999, when the court decided to seek from the Zadar Police and Defense departments "data about the number and types of explosions, blowing up of houses, destruction and arson of buildings in the Zadar region in the relevant period of time". One hearing was postponed after that, and in January 2002 the Zadar Municipal Court concluded that the requested data about blowing up and destruction of houses had been "obtained". However, in September 2002, without calling a hearing, the court decided to stop the proceedings in the case, calling on the infamous article 184 of the Civil Obligations Act [Zakon o obveznim odnosima]. That article stipulated that all cases demanding compensation for damages caused by members of the Croatian Army and Police during the Homeland War should be "stayed".
Namely, in 1996 the Croatian Parliament adopted changes in the Civil Obligations Act according to which legal proceedings relating to claims for damages resulting from "terrorist acts" were to be stayed until a separate regulation establishing responsibility for caused damage is adopted. That regulation hasn't been adopted until this day, but in the meantime the Parliament adopted new modification of the law, which ordered that all proceedings relating to claims for damages resulting from acts by Croatian soldiers or policemen between August 17, 1990 and June 30, 1996, therefore for the official duration of the Homeland War, be stayed.
Whatever the case, the suit Marica Varicak filed with the Municipal Court in Zadar almost ten years ago is still "stuck". Consequently, Marica Varicak approached the Human Rights Court in Strasbourg, which has been working on her case since December 2002. Since then the Croatian government has been corresponding with Strasbourg. When on July 25, Strasbourg receives government's response in connection with the case "Varicak v. Croatia", regarding the large request for compensation of damages, and if Marica Varicak rejects the government's offer, the Court in Strasbourg will make a binding decision.
It can already be concluded with some certainty that Croatia will lose this case. Arguments listed by the government in its response to Strasbourg, sent in March 2003, which aim to rebut the charges made by the plaintiff, are rather thin. Namely, the government claims that Marica Varicak has not used all legal means permitted by the Croatian judiciary, and could approach the Constitutional Court of Croatia and request that the court examine whether the article of the Civil Obligations Act ordering staying of damage compensation cases violates the constitution.
The court in Strasbourg will most likely not heed that argument, just as it ignored the same argument in the case "Kutic v. Croatia", when in March 2002 it decided in favor of Vojin and Ana Kutic from Martinci near Bjelovar. In December 1991, their house was blown up and destroyed, and then in November 1994, the same happened to their garage and meat-curing shed. They demanded damages of 227,738 kunas [about $33,000]. The court in Strasbourg did not examine the validity of their damage compensation request, not wishing to prejudge the outcome of the trial conducted in accordance with article 6 of the convention. Therefore, for undue delay in processing of their damage request the court ordered Croatia to pay the Kutics 10,000 Euros [about $13,000] as compensation for non-pecuniary damages [as compensation for undue length of legal proceedings, rather than for destroyed buildings].
The same decision will probably (perhaps with a different compensation) be made in the case "Varicak v. Croatia", which naturally does not prevent Marica Varicak from again approaching the same court if she is dissatisfied with any potential damages some court in Croatia may award in the future.
The court in Strasbourg is already dealing with an avalanche of suits from Croatia, and newspapers are full of statements of plaintiffs who are threatening to approach Strasbourg due to inability to get justice in Croatia. If those who believe that their cases have been dragging for far too long in Croatian courts, which violates the right to prompt trial and reasonable time in which the verdict needs to be reached, approach Strasbourg, Croatia could go bankrupt.
It would be very unfavorable for Croatia if the Court in Strasbourg (Croatia accepted its jurisdiction on October 17, 1997) starts handing out decisions that also recognize pecuniary [monetary, relating to money] damages, due to blowing up or arson of buildings. Tens of thousands of houses were destroyed in that manner in Croatia, and no one has been found guilty of deliberate destruction of property in Croatian courts. Given the number of deliberately destroyed houses and the fact that no one has been prosecuted for their destruction, it can be concluded that the destruction was encouraged, or at least tolerated by the authorities. The price of that policy will now be paid by all tax payers, whose taxes will be used to pay compensation for pecuniary and non-pecuniary damages awarded by the European Court of Human rights in Strasbourg. However, the court in Strasbourg cannot help Croatian taxpayers, who, although innocent, are being financially punished for somebody else's crimes.