This site contains opinions of many dwelling-right
holders
(See also: http://free-zg.htnet.hr/BrankoSoric/english.html )
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THE CROATIAN
STATE DEPRIVES US OF ALMOST-ALL OUR PROPERTY, WHILE EUROPE LOOKS ON INDIFFERENTLY!
The Law on Renting Apartments (passed in
1996) has not yet been changed (2004), although it violates the Croatian Constitution, the European Convention on Human Rights, the international Agreement on Succession Issues,
and Resolution 1096 of the Parliamentary Assembly of the Council of Europe!
The apartments, that had been nationalized in former Yugoslavia (SFRY), HAVE NOT
BEEN RETURNED to original
owners (which is in conformity with Resolution 1096 of the Parliamentary
Assembly of the Council of Europe, 1996). These nationalized apartments have been sold to
the holders of "dwelling rights" (stanarsko pravo) at a price of about 10 percent
of the actual value, in the same way as the publicly-owned apartments had also been sold;
and even a part of privately-owned apartments has also been compulsorily
sold in the same way - by Article 48 of the Law on Renting Apartments. This has
been approved by the Constitutional Court of Croatia for the sake of social justice.
On the contrary, our dwelling rights, in several thousands
of the so-called "private occupied apartments", have unjustly been abolished (by
the Law on Renting Apartments, 1996), i.e. our
PROPERTY, worth about 90 percent of the market price of an apartment, has been seized from us! Thereby, our OWNERSHIP (so-called "divided ownership", dominium divisum) has also been seized; namely,
the dwelling right comprised forever the main owner's rights on an apartment, which had been definitively (forever) seized
from original owners by the laws in SFRY. The dwelling rights were same
in the private, public, and other apartments. [To put it briefly: we were the owners in a much-greater degree than the nominal
owners who were registered in land registers (cadastral books)]. We should have been treated in the same way as the dwelling-right
holders in the nationalized apartments.
Neither the Constitutional Court
of Croatia nor the European Court of Human Rights has corrected the injustice that had been done to us!!!
The mistake (or the
guilt) of the judges of both these Courts consists in wrongly equating a dwelling right with a lease! The dwelling right is not a lease, and no lease contracts have been signed by dwelling-right holders! The dwelling right is an ownership; it
is a permanent, legal ownership, which is guaranteed by the Croatian Constitution
(since 1990) - although it is not complete, i.e. it does not comprise all the owner's rights. However, it is almost complete, i.e. about ten times greater
and ten times more valuable than the incomplete ownership of the nominal (registered) owner, who has permanently (forever)
lost the main owner's rights by the laws (in SFRY), i.e. he lost more than 90 percent of the value of such an apartment.
In
my case, the European Court of Human Rights even put untrue (false!) statements, regarding my dwelling right, into its
decision! (I can prove, and have proved that, but it has not been corrected
so far! The spreading of untruths is being continued!!!)
OSCE cares about human rights
of refugees (returnees), but it does not care about our human rights (although it should care)!!!
For the last thirteen years our acquired and human rights have been violated, the Croatian Constitution
is violated, as well as the European Convention on Human rights, etc., in spite of the opposite proposals made in the Sabor
(Croatian parliament)!
It has been proposed in the Sabor, that we should get equal
rights to cheaply buy our apartments in the same way as other dwelling-right holders had bought theirs, while the nominal
owners should be awarded a just compensation by the State.
The same was said in the Sabor on April 22, 1998 (by
Dr Nedjeljko Mihanovic, HDZ), on January
29, 1999 (Zeljka
Antunovic on behalf of SDP), on January
29, 2003 (Jadranka Kosor and Vladimir Seks, HDZ ; and others).
However,
that has not been realized for the last thirteen years! The government puts off action and waits for us to die!
In March of 2004 the Sabor ratified the Agreement on Succession Issues together with its Anex G.
What follows from the Annex G of the Agreement on Succession
Issues (of March 2004.)
According to Article 2 (1)(a) of Annex G, the rights to property to which citizens or other legal persons
of the SFRY were entitled on 31 December 1990 must be recognized, and protected and restored, and
any transfer of these rights made after 31 December 1990 and concluded under duress or contrary to sub-paragraph (a) of this
Article must be null and void. Moreover, (2) all contracts
concluded before 31 December 1990,
including those concluded by public enterprises, must be respected.
[NOTE (by B.S.): We
acquired our dwelling rights in the so-called "private" occupied apartments before 1990].
According to Article 6 of Annex G, domestic legislation concerning dwelling rights (stanarsko pravo)
must be applied equally to persons who were citizens of the SFRY and who had such rights, without discrimination on any ground.
[NOTE (by B.S.): "Legislation"
means "giving the laws" or "legislative power" i.e. bodies of the government who make, annul and change the laws].
The dwelling-right holders have cheaply bought
the publicly-owned, nationalized, and some private apartments at a price of about 10 percent of the actual value. However,
the same dwelling rights in the so-called "private" occupied apartments (worth about 90 percent of the market value of an
apartment) were seized (cancelled) by the Law on Renting Apartments (1996). The damaged dwelling-right holders, with whom I spoke, believe that it is quite clear from Articles 2 and 6 of Annex G, that our dwelling rights must be restored
to us, whereby, at last, all our problems should be solved! However, some of our politicians and lawyers (and perhaps some
of those outside Croatia?)
do not give up their unjustifiable desires, and, as it seems, they are fabricating (excogitating) a "derogation" that does
not exist!!! They try to make us believe that Article 2 of Annex G "does
not apply" to our case, or, in other words, that our contracts (by which we acquired our dwelling rights before 1990) exceptionally
"do not have to be respected"!!!
To put it quite briefly, there is no derogation, because, according to Article
6 of Annex G the domestic legislation CAN, and according to Article 2 it MUST annul Article
30 of the Law on Renting Apartments, whereby it will respect our contracts, by which we acquired our dwelling rights before
1990.
In which case a
derogation exists?
It is irrefutable that all effective
laws must be respected, as well as all stipulations of such laws. (All laws have equal legal power). Likewise, all stipulations of effective international agreements must be respected; these agreements, by their legal power, are above the laws (according to Croatian Constitution).
Accordingly, if two stipulations of an international agreement - such as Articles 2 and 6
- refer to the same thing (i.e.
to contracts by which the dwelling rights have been acquired), nobody has any right to arbitrarily maintain that one of these
stipulations should not be respected, but both
of these stipulations must be respected, if that is possible.
Only if those two stipulations were contradictory to each
other, if they were quite incompatible with each other, it would be impossible to respect both of them, and so there
could be a derogation, i.e. one of these stipulations could make an exception
from the other or (partly) cancel the other.
In which case the stipulation that refers to dwelling rights (Article 6 of Annex
G) would derogate the general stipulation of Article 2, which says that all contracts must be respected?
This could be possible, e.g.,
if Article 6 would read thus: "Domestic laws concerning dwelling rights, that
will be in force at the moment when Agreement on Succession Issues becomes effective, shall be applied further in the future
without discrimination".
However, Article 6 does not
say that! On the contrary, it says that the domestic legislation concerning
dwelling rights shall be applied without any discrimination, which means that one will have to apply in the future those laws
(or stipulations) which will be effective at that future moment (and it is not prescribed which laws will be
effective in a few months, or in a few years, etc.; but, of course, it is clear that they must not be discriminatory
or violate human rights). So, there is no derogation, because it is not
said that the now-existing stipulations of the Law on Renting Apartments should remain unchanged and be applied in the
future. In other words, it is not prescribed that one will have to apply Article 30 of the Law on Renting Apartments, which (having annulled the contracts by which we had acquired our dwelling rights) is contrary to Article 2 (2) of Annex G.
We can also see and confirm that
there is no derogation, in this way: Both stipulations (i.e. Articles 2 and
6 of Annex G) CAN be respected simultaneously. They are not incompatible or
contrary to each other. How can we see that? Here is the explanation:
According to Article 6 of Annex G domestic legislation will
be applied. This domestic legislation can (and must) make a new law that will change the Law on Renting Apartments and annul Article 30 of the same Law (by which article our dwelling rights have been abolished). In this way our dwelling rights will be restored to us (or,
alternatively, we can (and should) be given the right to cheaply buy our apartments at the same price as other apartments
have been bought by dwelling-right holders). So, on the one hand, our contracts
(by which we acquired our dwelling rights) will be respected in accordance with Article 2 of Annex G, and, on the other
hand, the new law (containing the above-mentioned changes of the Law on Renting Apartments) will become a part of the "domestic
legislation concerning dwelling rights" which will be applied without discrimination as required by Article 6 of Annex
G. Hence it is clear that the two stipulations (i.e. Article 2 and 6 of Annex
G) are not incompatible and
they CAN be respected and
applied simultaneously; and, because this is possible, it follows that both these
articles MUST be respected
simultaneously; namely, the whole international agreement must be respected,
i.e. all its stipulations (articles) must be respected if that is possible; - and that is possible.
Let us repeat once
more, briefly: According to Article 6 of Annex G the domestic legislation CAN, and according to Article
2 it also MUST annul Article 30 of the Law on Renting Apartments, whereby it will respect our contracts, by which
we acquired our dwelling rights before 1990.
The damaged dwelling-right holders
agree that THERE IS NO DEROGATION, because
the Articles 2 and 6 of Annex G do not cancel each other, but they supplement
each other.
We beg all
the citizens, all the honest lawyers and politicians, to prevent any false or
deceitful interpretations of the laws and of the international agreement!
Dr. med. Branko Soric
and other dwelling-right holders
(July, 2004.)
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