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Democratic Development, Judicial Reform and the Serbian Question in Croatia

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Abstract

In anticipation of Croatia’s accession to the European Union, this article assesses the way in which the state has come to terms with the Serbian question and the practice of non-discrimination in the justice sector. The first part offers an historical review of the Serbian question in Croatia and the main laws that discriminated against non-Croats during the war and rule of President Franjo Tudjman (1991–1999). The second part evaluates the nature of judicial reform in light of the external demands placed on Croatia to improve relations with the Serbian minority and recent rulings from the European Court of Human Rights, which have questioned the capacity of the Croatian judiciary to provide an effective remedy in cases of human rights violations.

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Notes

  1. European Council, ‘Principles governing the negotiations’ in Negotiating Framework, 3 October 2005, at http://ec.europa.eu/comm/enlargement/croatia/pdf/st20004_en05_HR_framedoc.pdf.

  2. See: Paul Hockenos, Homeland Calling: Exile Patriotism and the Balkan Wars (Ithaca, NY: Cornell University Press, 2003).

  3. Guillermo O’Donnell, Philippe Schmitter, and Laurence Whitehead (eds.), Transitions from Authoritarian Rule (4 vols., Baltimore: Johns Hopkins University Press); Juan J. Linz and Alfred Stepan, Problems of Democratic Transition and Consolidation (Baltimore: Johns Hopkins University Press, 1996); and Adam Przeworski, Michael Alvarez, José Antonio Cheibub, and Fernando Limongi, “What Makes Democracies Endure?” Journal of Democracy 7, no. 1 (January 1996), pp. 39–55.

  4. Brad K. Blitz, Rosemary Sales, and Lisa Marzano, “Non-Voluntary Return? The Politics of Return to Afghanistan”, Political Studies Vol. 53, No. 1 (Spring 2005), pp. 182–200.

  5. See Hockenos, 2003.

  6. On the Croatian public’s confidence in the European Union, see. Eurobarometer 64 Croatia at http://ec.europa.eu/public_opinion/archives/eb/eb64/eb64_hr_exec.pdf.

  7. According to the most recent Census Data, the Serb population dropped from 12.2% of the total population (581,663) in 1991 to 4.5% (201,631) in 2001.

  8. Official estimates of registered returns claim that ethnic Serbs constitute less than a third (117,500) of total registered returnees (373,247) since 1995.

  9. Survey research has suggested that the two most pressing explanations for Croatian resentment of Serb returnees are first the perception that their return would raise negative tendencies (46%) and second that the returning Serbs might start the war over again (34%) See Organization For Security and Cooperation In Europe, Croatia’s Refugee Challenge: Motivational and Emotional Factors for the Return of Refugees to their Homes and the Acceptance of their Return by the Local Population, Empirical research conducted by the Puls Agency in co-operation with the OSCE Mission to Croatia (Zagreb 2004) at http://www.osce.org/croatia/human_rights/judiciary_reform.php3.

  10. See: Brad K. Blitz, “Refugee Returns, Civic Differentiation, and Minority Rights in Croatia 1991–2004” Journal of Refugee Studies, Vol. 18 No. 3 (2005), pp. 362–386; Human Rights Watch, Broken Promises: Impediments to Refugee Return to Croatia, (2003) at http://www.hrw.org/reports/2003/croatia0903/croatia0903.pdf and Human Rights Watch, 3 September 2003, Croatia Fails Serb Refugees – Ethnic Discrimination Slows Refugee Return at http://www.hrw.org/reports/2003/croatia0903/croatia0903.pdf.

  11. For an excellent review of Croatia’s political development, see Jill Irvine, The Croat Question: Partisan Politics in the formation of the Yugoslav Socialist State (Boulder, CO: Westview Press, 1993).

  12. Ivo Banac, The National Question in Yugoslavia. Origins, History, Politics (Ithaca, NY: Cornell University Press, 1984).

  13. Marcus Tanner, Croatia: A Nation Forged in War (New Haven, CN: Yale University Press, 1997) p. 57.

  14. By contrast, Eastern Slavonia was not subject to the same pressures of nationalist groups, and the level of inter-ethnic tension was historically less acute. Jill Irvine notes that in the nineteenth century, the Krajina proved to be a fertile ground for more exclusive strands of Serbian and Croatian nationalist movements. See Irvine, The Croat Question; and Banac, The National Question.

  15. Rogers Brubaker, Nationalism Reframed: Nationhood and the National Question in the NewEurope (Cambridge: Cambridge University Press, 1996).

  16. For a fuller account of these figures see Vladimir Žerjavić cited in Sabrina Ramet, The Three Yugoslavias: State-Building and Legitimation, 1918–2005 (Bloomington and Washington, DC: Indiana University Press and the Wilson Center Press, 2006), p. 161.

  17. Milan Martić established ethnic Serb police units as early as August 1990. See the International Criminal Tribunal for the Former Yugoslavia Case No. It-95–11 the Prosecutor of the Tribunal Against Milan MARTIC - Amended Indictment http://www.un.org/icty/indictment/english/mar-2ai030909e.htm.

  18. Ibid, and ICTY Case No. IT-03–72-S Prosecutor v. Milan Babić - Sentencing Judgement 29 June 2004. http://www.un.org/icty/babic/trialc/judgement/bab-sj040629e.pdf.

  19. Ibid.

  20. See International Displacement Monitoring Centre, Croatia: Reforms Come Too Late For Most Remaining Ethnic Serb IDPs - A Profile of The Internal Displacement Situation, 18 April 2006 (Geneva: International Displacement Monitoring Centre/Norwegian Refugee Council, 2006) at www.internal-displacement.org and Blitz 2005.

  21. European Commission against Racism and Intolerance, Second Report on Croatia, CRI 34. (Strasbourg: ECRI, 2001) at http://www.coe.int/T/E/human_rights/Ecri/1-ECRI/2-Country-by-country_approach/Croatia/PDF_CBC%202%20Croatia.pdf.

  22. See. Brad K. Blitz, “‘Refugee Returns, Civic Differentiation and Minority Rights in Croatia 1991–2004”, Journal of Refugee Studies, Vol. 18, No. 3 (Autumn), pp. 362–386.

  23. See The two reports by Human Rights Watch Broken Promises: Impediments to Refugee Return to Croatia. (September 2003) Vol. 15 No. 6 (D) at http://www.hrw.org/reports/2003/croatia0903/croatia0903.pdf and Human Rights Watch, 14 October 2004, ICTY Justice at Risk: War Crimes Trials in Croatia, Bosnia and Herzegovina, and Serbia and Montenegro at http://hrw.org/reports/2004/icty1004/.

  24. See Tena Erceg, The Position of National Minorities in the Republic of Croatia-Legislation and Practice (Zagreb: Human Rights Center, April 2005).

  25. See Coalition for Promotion and Protection of Human Rights, Problems of Ethnically Motivated Incidents in the Republic of Croatia, (Osijek, Croatia: Coalition for Promotion and Protection of Human Rights, 2006) and United States State Department, Country Reports on Human Rights Practices - 2005, Released by the Bureau of Democracy, Human Rights and Labor, 8 March 2006 at: http://www.state.gov/g/drl/rls/hrrpt/2005/61642.htm.

  26. Milorad Pupovac, ‘Neka premijer javno osudi spaljivanje srpskih kuća–Let the Prime Minister Publicly Condemn the Burning of Serbian Houses’, Slobodna Dalmacija (Split), 12 February 2004.

  27. Ljubomir Mikić, Analysis – Annex G of the Agreement on Succession Issues; Regional Mechanism for Resolving Proprietary and Legal Issues and Recognition of the Acquired Rights of Refugees and Displaced Persons in the Area of the former Yugoslavia, Center for Peace, Legal Advice, and Psychosocial Assistance (Vukovar), March 2006.

  28. Pupovac claimed that the Government Agency for Property Transactions had bought off more than 8,000 houses over a 3-year period, half of which had not been reconstructed and there was no information about how such bought off property was managed. See Milorad Pupovac, ‘The State Buys Off More than it Returns’, Slobodna Dalmacija (Split), 12 October 2004.

  29. See Blitz 2005.

  30. Croatia also concluded bilateral agreements on minority protection with neighboring states, Italy, Hungary, Serbia and Montenegro and adopted a National Program and Action Plan for Roma communities.

  31. Organization for Security and Cooperation in Europe Mission to Croatia, 2006 Review Report On Croatia’s Progress In Meeting International Commitments Since 2001 Document Number C.FR/13/06. 9 June 2006 at http://www.osce.org/documents/mc/2006/06/19522_en.pdf

  32. Statistics for 2005 from the Ministry of Justice show that national minorities constitute five per cent of all judges, with Serbs comprising 2.4%. Ibid, p. 8.

  33. Ibid, p. 7.

  34. See. Cvijetic v. Croatia-71549/01 2004 ECHR 88 (26 February 2004), Pibernik v. Croatia-75139/01 2004 ECHR 96 (4 March 2004), Kvartuc v. Croatia-4899/02 2004 ECHR 639 (18 November 2004).

  35. OSCE, Reforming the Judiciary - the Judicial Reform (no date) at http://osce.org/croatia/13396.html.

  36. OSCE, Organization for Security and Cooperation in Europe Mission to Croatia Status Report No. 17 On Croatia’s Progress In Meeting International Commitments Since July 2005. Report Issued 10 November 2005. pp. 3–4 at: http://www.osce.org/documents/mc/2005/11/17011_en.pdf.

  37. Human Rights Watch records the judgment by the Gospić County Court, which faulted an ethnic Serb defendant, Karan ‘and his ancestors’ for having been a ‘burden to Croatia over the past 80years’. The judgment also lamented the five centuries in which ‘the accused and his ancestors...together with Turks were coming and destroying Croats’. The organization found no evidence that the judge would be punished for such statements. Human Rights Watch, ICTY Justice at Risk: War Crimes Trials in Croatia, Bosnia and Herzegovina, and Serbia and Montenegro, 14 October 2004, pp. 12–13 at: http://hrw.org/reports/2004/icty1004/.

  38. The OSCE reports, ‘according to Mission information, in 2005 the Supreme Court, as of early November, decided nine appeals in war crime cases. It reversed convictions against seven Serbs and the acquittal of one Croat and remanded for retrial. It further upheld the convictions of two Croats, increasing the sentence in one case, and reducing it in the other.’ OSCE, 2006, p. 16.

  39. Human Rights Watch, 2004.

  40. Humanitarian Law Center, War Crimes Trial in Vukovar, Belgrade, January 5, 2005 at: http://www.hlc.org.yu/english/War_Crimes_Trials_Before_National_Courts/Croatia/index.php?file=1015.html.

  41. OSCE, Organization for Security and Cooperation in Europe Mission to Croatia Status Report No. 17 On Croatia’s Progress In Meeting International Commitments Since July 2005. Report Issued 10 November 2005, p. 16. http://www.osce.org/documents/mc/2005/11/17011_en.pdf.

  42. Ibid, pp. 15–16.

  43. United Nations Committee Against Torture, Conclusions and recommendations of the Committee against Torture: Croatia. Document Number CAT/C/CR/32/3 (2004). 11/06/2004. at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CAT.C.CR.32.3.En? Opendocument and United States State Department, Country Reports on Human Rights Practices, Released by the Bureau of Democracy, Human Rights and Labor, 25 February 2004 at http://www.state.gov/g/drl/rls/hrrpt/2003/27831.htm.

  44. Humanitarian Law Center, ‘Human Rights Organisations on Hrastov Trial’, Belgrade, 9 February 2005 at http://www.hlc.org.yu/english/War_Crimes_Trials_Before_National_Courts/Croatia/index.php?file=1045.html.

  45. Organization for Security and Co-operation in Europe Mission to Croatia Background Report: ECHR Cases Involving Croatia As Of August 2005, 12 August 2005. p. 10 at http://www.osce.org/documents/mc/2005/08/16068_en.pdf.

  46. Ibid, p. 2.

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    Brad K. Blitz

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Blitz, B.K. Democratic Development, Judicial Reform and the Serbian Question in Croatia. Hum Rights Rev 9, 123–135 (2008). https://doi.org/10.1007/s12142-007-0036-0

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