text:
following a round table with state and local authorities (Zagreb, 8-9 June 2001), a round table with Roma NGOs (Zagreb, 29-30 July 2001), and
two field visits (October/November 2001 and January 2002)
by Ina ZOON, Council of Europe consultant
Survey financed by the European Commission under the
joint Council of Europe/OSCE-ODIHR/European Commission Project
"Roma under the Stability Pact"
Special thanks to Ms. Lovorka Kušan – Attorney-at-law, in Croatia
September 2002
Background to this report and procedure 4
Introduction 5
Description of the citizenship law 8
Implementation of the law 10
The "proficiency in the Croatian language and Latin script" requirement 12
The residence requirement 14
The "attachment to Croatian culture" requirement 13
The "respect for the legal system" requirement 13
Naturalization of spouses - the civil marriage requirement 13
Unreasonable procedural delays 16
High administrative fees 16
The question of guidelines and interpretation of the law 17
Recommendations 17
Roma housing in Croatia 20
Racial Segregation 21
Legalization issues 22
Infrastructure and access to municipal services 23
Roma access to social housing 24
Discrimination in the private housing sector 25
Governmental policies 25
Recommendations 26
Roma Health Status in Croatia: absence of data 27
Health rights and non-discrimination clauses 27
Practice: allegations of discrimination 27
Attitudes of medical personnel hostility – verbal abuse and poor treatment of Romani patients and refusal to examine, treat/document or poor treatment of Romani victims of skinhead attacks or police brutality 28
Roma citizens without health insurance obliged to pay a deposit in advance 29
Community nurses: failure to visit Roma settlements 30
Access to health insurance 30
Access to emergency care 31
Vaccination 33
Government policy to improve Roma health 33
Recommendations 34
Assistance for maintenance 36
Children allowance 38
Personal disability benefit 40
Free school books for socially threatened primary school pupils 40
Placement of Roma children in institutional care 41
Recommendations 41
Towards the elaboration of A national strategy for roma 43
Background to this report and procedure
The present report was prepared by the consultant in the framework of the Joint Programme: "Roma under the Stability Pact" being implemented by the Council of Europe and the OSCE/ODIHR Contact Point for Roma and Sinti Issues and funded by the European Commission in the framework of the Stability Pact for South-Eastern Europe (1999-2002).
The Joint Programme covers different countries involved in the Stability Pact among which Croatia, for which the consultant was asked by the Council of Europe to prepare a comprehensive report on obstacles facing the Roma minority in accessing different categories of rights and namely citizenship, housing, health and social assistance (which were identified as the main areas where Roma face direct or indirect discrimination in Croatia).
The consultant attended two meetings in Croatia (a round table with representatives of the various ministries involved in Roma issues, June 2001, Zagreb and a meeting gathering most of the Croatian Roma NGO's, 29-30 July 2001, Zagreb); she also undertook two fact-finding visits, together with a Croatian lawyer, Mrs Lovorka Kusan who was also recruited by the Council of Europe as a local consultant for this project (27 October - 3 November 2001 ; 18-24 January 2002). Both consultants visited settlements in Zagreb and Medimurje counties, held meetings with Roma and non-Roma NGO's from different regions and had discussions with various representatives of the authorities and of international organisations having offices in Croatia.
The aim of the present study is to provide a picture of existing gaps or obstacles in the legislation which result in difficulties for Roma when trying to access some basic rights. It is intended as a tool for the Croatian authorities, with the support of the Council of Europe and in the framework of the Stability Pact, to improve their existing laws and practices so as to make sure that all citizens, including those belonging to minority groups, enjoy all the rights they are entitled to.
In 2001-2002 and as part of the Programme "Roma under the Stability Pact", the Council of Europe and the ODIHR-CPRSI also organised a series of meetings with Roma NGO's and the authorities involved in Roma issues so as to foster a better communication between both parts and to support the process of elaboration of a national strategy for Roma in Croatia.
According to the data of the State Bureau of Statistics (Statistièki zavod), the number of Roma in Croatia in 1991 was as follows: 6,695 or 0.14% of the total population (4,784,265). Some Roma leaders however estimate the number of Roma to be as high as 150,000, which seems to be exaggerated. However, the figure of 6,000 is probably too small as the official statistic only cover persons having citizenship. Roma not being able to prove that they have citizenship or not having citizenship are thus not included in this figure. Then, it has to be considered that Roma tend not to declare themselves as Roma. Other estimate from NGO's (ERRC, 1998) propose a figure of 30 to 40 000 persons.
Most Roma now live in compact settlements outside the cities, mainly around Zagreb, in Medimurje country, in the areas of Cakovec, in Pula, Rijeka, Varazdin, Osijek and Slavonski Brod (State report submitted by Croatia on the implementation of the Framework Convention for the Protection of National Minorities, 1999).
Roma from other regions of the then Yugoslavia settled in Croatia in the 60's and 70's. During and after the war, many Roma living in Croatia fled to other regions of the ex-Yugoslavia and to western European countries. A large number of Roma from Bosnia-Herzegovina and Kosovo on the other hand emigrated into Croatia. Only part of them have managed to obtain Croatian citizenship. An unknown number of Roma also fled to the Federal Republic of Yugoslavia due to anti-Romani violence in Eastern Slavonia following the reintegration of the region into the Republic of Croatia (ECRI, 15 December 2000, second report on Croatia).
Roma in Croatia, as in other countries of the region, belong to the various existing religious groups, ie. they are Catholic, Muslim and Orthodox. Among the Roma group, there are two linguistic groups, the ones speaking Romani and a group called Boyash, whose language derives from ancient Romanian but is not strictly speaking Romani language. They are mainly established in the Medimurje county.
With regard to international texts protecting human rights in general and minority rights in particular, Croatia signed and ratified the Framework Convention for the Protection of National Minorities. The Croatian authorities are considering the question of accepting Article 14 of the Convention for the Elimination of All Forms of Racial Discrimination, which would allow the possibility for individuals and groups of individuals to file petitions before the Committee on the Elimination of Racial Discrimination.
Ratification of the Additional Protocol No 12 to the European Convention on Human Rights prohibiting all forms of discrimination is expected to take place soon. However, Croatia did not yet sign the Revised European Social Charter and the European Convention on Nationality.
Article 14 of the Croatian Constitution establishes the fundamental principle of equality before the law as well as the right of every individual to enjoy all rights and freedoms regardless of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, education, social status or other characteristics. Association with a national minority does not explicitly appear among the prohibited grounds of discrimination. The Croatian Constitution also guarantees to members of all nations and minorities the freedom to express their nationality, the freedom to use their language and script as well as their cultural autonomy (Article 15). New paragraphs 2 and 3 have been added to Article 15 of the Constitution and read: "Equality and protection of national minorities are governed by the Constitution Law adopted according to the procedure for adopting organic laws. In addition to the general suffrage, the Law may provide, to the members of national minorities, the right to elect their own representatives to the Croatian Parliament."
Furthermore, the Croatian Parliament adopted in May 2000 the Law on the Use of languages and Script of National Minorities in the Republic of Croatia as well as the Law on Education in the Language and Script of National Minorities.
The Constitutional Law on Human Rights and Freedoms and the Rights of Ethnic and National Communities or Minorities in the Republic of Croatia of 1991 (Constitutional Law of Human Rights) provides extensive guarantees of minority rights in key fields of life including inter alia education, use of language, culture and media. Furthermore, this law addresses the issue of minority participation in public affairs and minority representation at state and local levels, including special administrative arrangements in areas where national minorities constitute a considerable proportion of the population (ECRI, 2000). A draft new law on minorities is under preparation, with the assistance of the Venice Commission of the Council of Europe. It plans, inter alia, to establish minority self-governments on the model of what exists in Hungary.
Finally, a National Strategy of the Government for the improvement of the situation of the Roma in Croatia is to be finalised by December 2002.
In 1991, when Croatia became independent, it adopted a new citizenship law which recognized the right to the citizenship of the new state of all SFRY citizens who had Croatian republican citizenship in the day when the law entered into force. All the others became foreigners.
In the federation days, the republican citizenship was a legal construction without practical effects. Many people, Roma and non-Roma, did not know which is their republican citizenship. Many thought that domicile determines republican citizenship in the same way in which there was a connection between them living in the federation and being citizens of the federation. The numerous changes in the citizenship legislation were of no interest to the common citizen. Although the regulations in place before 1991, would allow individuals to change their republican citizenship, nobody made use of it because made no practical sense. Furthermore, the federal authorities did not keep a centralized evidence of the republican citizenship of all federation subjects.
Roma encounter serious difficulties in accession Croatian citizenship. The impact of the citizenship law is not the same in all regions and all Romani groups, but varies according to the legal status of the applicants before 1991 (whether they had Croatian republican citizenship or the citizenship of another republic) and the moment of arrival in Croatia. Roma from Medjimurie, for example, came from Romania hundreds of years ago, settled in Medjimurie and lived there all this time, without significant movements. In 1991, the vast majority hold Croatian republican citizenship which was continued on the basis of article 30(1) of the citizenship law. In other regions, during the last fifty years, Roma came from other republics of the former Yugoslavia in search for work. As a rule, they preserved the citizenship of the republic they came from and transmitted it to their children. In 1991 they became foreigners and obliged to apply for naturalization.
The Slavonski Brod example is illustrative: out of 1,100 Romani people who live now in the Romani settlement in Slavonski Brod, 75 do not have citizenship.
The Orthodox Roma (Ludari) all came to Slavonski Brod in the 50's from Bosnia. Other 10 Muslim families of Roma came by the end of the 80's from Kosovo. They settled and have been registered there, as SFRY citizens with Bosnian republican citizenship. The declared their children as ethnic Romanian, Roma or Muslims. Marriages and children born in Croatia slowly changed the overall picture, and, following the previous citizenship rules, as of October 1991 some of the young people had Croatian republican citizenship. When the actual citizenship law entered into force they simple registered as Croatian citizens under article 30(1). The rest, who, as Orthodox of Bosnian descent with declared Romanian, Roma or Moslem ethnicity obviously did not qualify as "members of the Croatian nation", became ex lege foreigners with permanent residence. During the war the vast majority of the Roma families remained in Croatia. They applied for Croatian citizenship and, over a period of ten years gradually obtained it. However, there are still 75 people who have failed to acquire it. Within the first group, Roma who came in the 60's, the profile of unsuccessful applicant is an older woman mother and wife of Croatian citizens.
Some of the circumstances Roma are living in should also be taken into account when assessing legislation impact: the educational level of Roma is much lower than the national average, the illiteracy rate is much higher, particularly among Romani women. Severe poverty is widespread, the unemployment rate is almost 100 per cent. Some people are not registered in the places where they de facto live. There is an increased mobility of individuals and families, in search for work. Many people do not have IDs, a significant number of children are born in house and not registered, which makes difficult the determination of their citizenship. Traditional Romani marriages often replace the civil one, families are large, with many children. Many Roma have still families in other parts of the former Yugoslavia; some of their relatives came in Croatia during the war and failed to register with the authorities.
Description of the citizenship law
The Law on Croatian citizenship1 entered into force on October 8, 1991. It was the first citizenship regulation in the history of the new independent Republic of Croatia, adopted in a moment when establishing the initial body of citizens was of crucial importance for shaping the ethnic structure and identity of the new state.
The period 1991-2001 was a time of legal stability in the field of citizenship. The law was amended only once, in 1992.2 In 1993 one provision -- art. 26(3) -- which the constitutional Court found in contradiction with the Constitution was abolished.3 Only two implementation rules have been published in this period, one concerning citizenship records4 and the other one on termination of citizenship by revocation5 The implementation of all the other articles of the law, including determination of ethnicity and naturalization procedures is based on instructions issued by the Ministry of Interior for internal use, which have never been made available to the public.6
The law is based on the principles of exclusivity of Croatian citizenship in case of dual citizenship, legal continuity, avoidance of statelessness, equality of rights of children born in and out wedlock, and gender equality. The acquisition of Croatian citizenship is based on ius sanguinis to which a limited number of ius soli rules are added (e.g. children found or born on the Croatian territory acquire citizenship if they have no parents, parents are unknown or of unknown citizenship).
Croatian citizenship can be acquired by descent (art. 4); by birth on the territory of the Republic of Croatia (art.7); by naturalization (art.8) and by international agreement. The transition between the Socialist Republic of Croatia and the new state was secured by recognition and continuation of the republican citizenship into Croatian citizenship through simple registration (acquisition by registration, art. 30 para. 1). Those who did not have republican citizenship in October 1991, but were living in the country could opt into Croatian citizenship provided that they belong to the Croatian nation and had formally registered residence (acquisition by declaration, art. 30 para. 2).
Acquisition by descent (art. 4): A child born in Croatia acquires Croatian citizenship if one or both parents are, at the moment of the birth, Croatian citizens. A child born abroad acquires the Croatian citizenship if, at the moment of the birth, both parents are Croatian citizens, or one parent is Croatian citizen and the other parent is stateless, or of unknown citizenship. Regardless the place of birth, a stateless child or a child with foreign citizenship, acquires Croatian citizenship if adopted by Croatian citizens. The adopted child is consider as being Croatian citizen since birth.
Acquisition by birth on the territory of Croatia (art. 7) the child born or found on the territory of Croatia acquires Croatian citizenship if both parents are stateless, unknown or with unknown citizenship. The child loses Croatian citizenship is, before reaching the age of fourteen, it is determined that both parents are foreign citizens.
Acquisition by naturalization (art. 8). Foreigners may apply for Croatian citizenship if: they reached 18, are legally capable, have, their foreign citizenship is terminated or will be terminated when they will acquire the Croatian one, had residence in Croatia for at least five years, continuously, prior to the date of submission of the application, prove proficiency in Croatian language and Latin Script, respect the Croatian legal system and customs and accept the Croatian culture. The access of the foreign children to Croatian citizenship depends on the citizenship of the parents, on the manner they acquired it and on the place where the child lives (art. 13).
The law establishes a facilitated naturalization procedure for persons born in Croatia (art. 9), spouses of Croatian citizens (art. 10), emigrants and their spouses (art. 11), foreigners whose admission into Croatian citizenship is in the interest of the country and their spouses (art. 12), adopted children (art. 14), ex-Croatian citizens (art. 15 - reestablishment of the citizenship), and ethnic Croats who live abroad (art. 16).
Acquisition by registration (art. 30 para 1) is the main procedure for the establishment of the initial body of citizens and the instrument for the implementation of the legal continuity principle. It recognizes the entitlement to the citizenship of the successor state of all persons who, on October 8, 1991, were holders of Croatian republican citizenship, regardless their ethnic background. This category of people were deemed by law citizens of the new independent Croatia, starting from on October 8, 1991, and they have been registered as such by the competent authorities. All the rest became de jure foreigners.
Acquisition by declaration (art. 30 para 2) is the mechanism which ensures permanent residents the right to opt into Croatian citizenship, if (i) they are ethnic Croats (belong to the Croatian nation); (ii) had permanent residence on October 8, 1991 on the territory of Croatia and (iii) sign a written statement that they consider themselves Croatian citizens. Persons who, on October 8, 1991 were registered as permanent residents but did not belong to the Croatian nation became acquired, by virtue of law, the status of foreigners with permanent residence in Croatia. Those who did not fulfill the residence requirement were deemed foreigners without a legal status in Croatia and had to apply for temporary residence, under the foreigners' law.
Termination of citizenship: Croatian citizens cannot be deprived of their citizenship (art. 9 of the Constitution), but their citizenship bound may be terminated, upon their request, trough a revocation procedure, renunciation or according to international treaties. Revocation is granted when the applicant already acquired or will acquire another citizenship if released from the Croatian one, and reached the age of 18; fulfilled all military obligations; paid all due taxes, public obligations and obligation towards physical persons; settled all property related issues and all legal issues steaming from marriage parenthood; there are no on-going criminal proceeding against him for an act which is prosecuted ex-officio, and there is no pending execution of a prison sentence.
Procedural provisions - Citizenship related applications (acquisition or termination) are filed with the competent police stations or the diplomatic or consular offices of the Republic of Croatia abroad (art. 24); the Ministry of Interior conducts all the proceedings and issues decisions (art. 25) according to the administrative procedure. If the ministry considers that it in the interest of Croatia to deny an application it can do so, although the applicant meets all legal requirements (art. 26 para 2). The Croatian citizenship is proved by the Certificate of Citizenship [domovnica] and evidenced by valid identity card, military identity card or passport (art. 28 and 29).
The succession of the naturalization operations is:
1. The applicant summits his Croatian citizenship application to the Ministry of Interior. If all legal requirements are fulfilled the ministry issues a "promise" or a "guarantee" - a document which certifies that the applicant will acquire Croatian citizenship if released from his/her initial citizenship.
2. The applicants obtains the revocation of his initial citizenship from the competent authorities of his/her country of origin, and submits the relevant documents to the Ministry of Interior.
3. If in this period, all legal requirements continued to be fulfilled, the Ministry of Interior issue a positive decision.
4. On the basis of this decision the Civil Register issues the applicant's "certificate of citizenship" (domovnica).
5. On the basis of this certificate the competent authorities issue identification card and passport.
Implementation of the law
The obstacles encountered by Romani applicants in acquiring Croatian citizenship range from eligibility requirements to administrative practices, from high administrative fees to unreasonable procedural delays. The most important of these obstacles are described bellow.
The "proficiency in the Croatian language and Latin script" requirement
In practice, the "proficiency in the Croatian language and Latin script" imposes on the applicant two obligations: to speak Croat and to know the Latin script. According to the Ministry of Interior, the Croatian language proficiency implies just speaking basic Croatian; the word "proficiency" has no real legal meaning and nobody has been ever denied access to Croatian citizenship for not speaking Croatian well enough. Compliance with "proficiency in Latin script" implies the applicant's ability to write his own name with Latin characters. Applicants who, instead of signing, have draw a cross or imprinted a fingerprint on their citizenship application have been rejected on lack of proficiency in Latin script ground. Language and Latin script proficiency are not required under the facilitated naturalization procedure for spouses of Croatian citizens, emigrants and their spouses, and adopted children.
On its face, the provision is neutral, because it requires literacy from all naturalization applicants, but has a disparate impact on ethnic groups with high level of illiteracy, such as Roma. In the seventies, more than half (53.88 %) of the Romani adults in Medjimurie county were illiterate7 and the situation did not improve dramatically since. In 2000, a small scale survey found that as much as 38,53% of the adults were iliterate.8 This percentage is very high as compared to the national illiteracy rate which was, according to the last census, only 0.04% 9.
Romani women are three times more likely to fail acquiring citizenship on script knowledge grounds than men: according to the same survey, women's illiteracy rate was 47.61% while among men was 15.87%.10 Consultants where informed about a number of cases of Romani women who were denied citizenship on illiteracy grounds; similar cases are described by law journals (e.g. T.T, a Romani women who lived in Croatia for almost 30 years, has real estate in the country, and was nevertheless refused citizenship for being illiterate.11)
The facilitated procedure for applicants married to Croatian citizens do not really help Romani women either, because they are often married according to Romani traditions and do not have a civil marriage certificate. The case of M.O. from Slavonski Brod illustrates the tremendous difficulties a Romani woman, whose husband and children are Croatian citizens, may face when trying to acquire citizenship:
M.O. applied for Croatian citizenship first time in 1993. Her application was rejected but the reasons for denial were not included in the decision. In the same year the administrative court ruled in her favour and recommended the Ministry of Interior to renew the procedure. In 1995 M.O. is rejected again, on language grounds, without other explanations. In 1996 she applies again, and she is rejected again, because she is not ethnic Croat. In 1997, the administrative court again rules in her favour, stating that the ministry should have processed her application under the facilitated nationalization procedure, because her husband is a Croat citizen. In 1998 she applies again and is rejected again because she is not married under civil law, but lives in a common law marriage with the father of her three children and, "from her file results that she is illiterate" [Broj 511-01-42-UP/I-1/8064/5-1995 from 29.06.1998].
Knowledge of official language of the country is common practice, being considered as indicative for the degree of integration of the naturalization applicant. It is also common practice in the European Union countries to avoid discriminatory effects on vulnerable groups such as illiterate people, senior applicants, persons with mental disabilities by way of exception and/or by organizing low-cost or free of charge literacy courses for adults.
There are indications that in Croatia the Latin script requirement is applied rigidly and the law used as instrument of exclusion of illiterates. Legislators have failed to include a waver for certain category of persons, the administration did not provide any literacy programs for adult Roma to help them overcome the problem. Under these circumstances, although the law is neutral on its face, the negative effect on Roma is disproportional as compared to any other group of applicants.
The residence requirement
Applicants for Croatian citizenship must have previously obtained permanent residence status and prove continuous stay on Croatian territory for a period of at least five years prior to application. A foreigner may obtain permanent residence only if s/he has a "domicile", a place to live in Croatia as determined by special law. "Continuous" means that the domicile registration has not been terminated during the previous five years, and formal registration has not been deleted in this period.
In practice, three type of obstacles undermine the chances of Roma applicants to fulfil the residence requirement:
1. Difficulties in registering domicile before 1991. Roma de facto living for many years in Croatia were not eligible for the permanent resident status in 1991, for not having registered domicile on the Croatian territory. This was due to restrictive domicile rules which required proof of the ownership of the house (which many Roma living in shanty housings could not provide) or a lease contract (which Roma would not have for the same reason). If under 18, Romani women from another former Yugoslav republic who came to live with their husbands in Croatia could not be registered because the law required minors to have the same domicile with their parents. Additionally, even when fulfilling legal requirements, there allegedly was a reluctance of the local authorities to register Roma as inhabitants of the city.
2. De facto residence: The law requires five years of registered residence but in the administrative practice the requirement has been interpreted as five years of de facto continuous residence. Croatian experts sustain that the practice continues12 although declared unconstitutional by a 1997 Constitutional Court decision13.
3. Failure to register children's residence. When turning 18, many potential naturalization applicants discovered themselves not eligible for Croatian citizenship because their parents failed to register them. Many of them were born in Croatia and/or lived their entire life on Croatian territory. Acknowledging the seriousness of the problem the Constitutional court noted that, absent explicit provisions, the administration should implement the law in favour of this category of applicants.
During the war, not only Romani children, but also children from other ethnic groups suffered because their parents could not or failed to register them. Children were born on foreign territories, mothers give birth outside hospitals, identity papers lost, birth certificates difficult/impossible to obtain or not recognized. Observers note that in the Roma community such cases are still frequent, even in times of peace, due to their mobility in search for work, low level of legal awareness, and an increasing tendency of the Romani mothers to give birth at home. Romani children are more likely not to be registered and administration's failure to follow the indication of the Constitutional has a disparate impact on Romani applicants.
The "attachment to Croatian culture" requirement
Applicants for Croatian citizenship must proved attachment to Croatian culture. The consultants were informed that the Ministry of Interior did not develop any procedure or instrument to test the fulfilment of the Croatian culture requirement. Reading skills and knowledge of Latin script are considered sufficient. According to the Ministry, no citizenship application has been ever rejected on lack of attachment to the Croatian culture.
This requirement is typically one where clarification are needed, either through amending the law or procedural guidelines, in order to dissipate the confusion of the text. What exactly is meant by "attachment to the Croatian culture"? Is catholic religion a part of "Croatian culture"? and if yes, would this requirement impose an the Roma applicant who might be Muslim or orthodox, to convert to that religion? Or does it mean that a woman who wears her traditional Roma clothing would be obliged to abandon those clothes and wear Croatian-style clothing? These questions are raised by allegations according to which a Roma applicant has been denied citizenship because was selling goods in the market on Sunday, a day when work is prohibited by catholic church. The consultants did not come across off any independent analysis of the implementation of this particular requirement to provide further information on administrative practices. To ensure transparency and to avoid discrimination allegation the Ministry of Interior should clarify and make public the content of the requirement.
The "respect for the legal system" requirement
The law does not provide any further indication on the content of this requirement. According to the Ministry of Interior, an applicant proves respect for the legal system if s/he has never sentenced by a Croatian court, for a criminal offence or misdemeanour by a court of law. There is no time limitation (the applicant should have never been sentenced or considered as never having been sentenced). It is not relevant whether the applicant has committed the crime with intention or not.
The consultants are of the opinion that, on the one hand the scope of the limitation is unjustifiable broad and on the other one it has a disparate impact on vulnerable and marginalized groups such Roma, that are more likely to be prosecuted and sentenced for minor offences. It is recommended, therefore, to reduce the scope of the limitation, by reformulating and clarifying the requirement.
Naturalization of spouses - the civil marriage requirement
Spouses of Croatian citizens are granted, under art, 10 of the citizenship law, more favourable treatment than other naturalization applicants. They do not have to meet the release from the initial citizenship, five years residence and proficiency in Croatian language requirements. They need only to have, at the moment of the application, permanent resident status and prove respect for the Croatian legal system, customs and culture.
In relation to the equal access of spouses in general and Romani spouses in particular, the questions are: who is recognized as "spouse" and are Romani families disproportionately affected by article 10 or by its implementation?
The recognition as a "spouse": the general requirement is the existence of the civil marriage with a Croatian citizen. For marriages concluded on the Croatian territory, the quality of "spouse" is proved with a civil marriage certificate or, starting with 1998, with a catholic marriage certificate.14 Marriages celebrated abroad are considered, according to the international private law norms, valid, if recognized by the state where concluded (for example religious marriages in Israel).15 However, marriages concluded before 1991 on the territory of the SFYR, are not automatically recognized but need to be convalidated.
Article 10 grants to all "spouses" of Croatian citizens more favourable treatment, as required by article 6 (4)a of the Convention on Nationality. The text is facially neutral, granting to all "spouses" the same treatment. The implementation rules, however, as determined by the Croatian family law, convalidation legislation, international agreements [or lack of thereof], and the norms of private international law produce perverse effects, placing undue hardship on, or blocking the access of the applicants belonging to certain ethnic or religious groups to the facilitated naturalization procedure.
Indeed, applicants who concluded non-catholic marriages on the Croatian territory (i.e. marriages celebrated in orthodox churches, synagogues or mosques) are excluded, as well as those who concluded such marriages in other countries where they are not legally recognized. This rule conducts to situations where an applicant married yesterday in a catholic church may apply immediately for Croatian citizenship under article 10, while the applicant married to a Croatian citizen in an orthodox church twenty years ago cannot do the same. Cohabitation, regardless its length, stability, or the existence of children, is not recognized. People who cohabitated their entire life with a Croatian citizen, who have children and grandchildren together, are not treated more favourably than any other foreigner who applies for naturalization. Romani traditional marriage, which is not officiated in the front of religious authorities but in the front of the community, and which is, as a rule, particularly stable, is not considered as a valid ground for article 10 based application.
The Ministry of Interior does not collect and/or does not publish any information on the ethnicity of the applicants who invoke article 10, or on the rate and the grounds of denial, which makes particularly difficult the assessment of the disparate impact of this provision on the Croatian Roma community. However, sociological research, administrative court decisions, and the analysis of the cases handled by the human rights NGOs may provide an indication of the disproportionate impact of the "spouse qualification rules" on Romani applicants. A valuable indication of the disparate impact is given by the analysis of the complaints submitted to the Croatian Ombudsman Office, as reflected in the Ombudsman's 2000 report:
"Roma have much more difficulties in acquiring Croatian citizenship as compared to other foreigners, even in the case where they are married to Croatian citizens and have children who are Croatian citizens. Permanent common-law marriage is not recognized by the Ministry of Interior, not even when it last for a long time and the couple has children, although it is notorious that Roma celebrate their weddings according to their tradition, that even if they are not registered as civil marriages, these union are stable and long-lasting, and that it is particularly difficult to obtain a divorce according to the Romani tradition."16
There are two reasons why Romani applicants are more affected than others by the restrictive application of the civil marriage requirement:
Firstly, Romani applicants are more likely than any other ethnic group to live in what is called "common law marriages". Recent sociological research carried out in Romani settlements indicate that one of three or even one of every two Romani families live in such unions.17 It should also be noted that, in the Romani case, "common law marriage" does not accurately describe the nature of the relation between partners. Romani unions are not only the result of the partners' decisions to live together but follow a traditional Romani wedding ceremony which bound the partners to behave as spouses in the front of their families and in the front of their communities.
Secondly, it is most likely that Romani naturalization applicants are not catholic - therefore, if they decided to conclude their marriage in a religious ceremony, it would not be a catholic one. Unlike the Croatian population, which is mainly catholic, the Roma community is heterogeneous from the religious point of view, and divided in three big groups: Roma from Medjimurje county are Catholics, those from Slavonski Brod, Sisacko-moslavacka and Baranja are mostly Orthodox, while Roma from Istria are mostly Moslems. Naturalization requirements did not affect the Catholic Roma from the Medjimurje county, because almost all have been, before 1991, holders of Croatian republican citizenship, which was continued, under article 30, into the actual Croatian citizenship. The Roma communities whose members are more susceptible to seek access to citizenship via naturalization are those from the rest of the country, who did not have Croatian republican citizenship before 1991 and happen to be married according Orthodox or Islamic rituals or simply according to Romani tradition.
In conclusion, the restrictive implementation of the civil/catholic marriage as a requirement for more favourable naturalization conditions imposes undue hardship or blocks the access to the procedure for the Romani applicants, having a discriminatory effect, in contradiction to the non-discrimination principle established by article 5 of the European Convention on Nationality.
This discriminatory effect might be eliminated by recognizing the quality of "spouse" to applicants who live in a number of years in a cohabitational relationship with a Croatian citizen. Apart from removing a source of indirect discrimination, such a recognition would bring the Croatian nationality legislation closer of the social reality, where the number of the cohabitational unions is in a continuous increase. The existence and social significance of these union is already acknowledged by the Croatian family law, which has already incorporated the institution of cohabitation.
Unreasonable procedural delays
Applicants to Croatian citizenship frequently complain about lengthy waiting periods. After the conclusion of administrative proceedings one may wait for the administrative court decision two or three years, and than for Constitutional court decision another year or sometimes few years18.
The consultants are aware that naturalization procedures are time consuming, especially in the context of a dissolution of a federation and in countries devastated by war where documents are lost or difficult to retrieve. The Ministry of Interior stated that procedural delays are also due to the lack of personnel and difficulties in obtaining documents from a foreign country.
For many Roma who live in severe poverty, obtaining citizenship status is essential to have access to social benefits, to ensure the survival of family members, food and health care. For the very poor time has another dimension; to respond to emergency cases authorities should introduce mechanisms permitting them to speed up administrative procedures.
High administrative fees
Another obstacle Roma face when applying for citizenship is the level of administrative fees which is in certain cases so high that becomes prohibitive for severely poor applicants. There is no waiver for indigent applicants19.
Particularly onerous are the fees for release from the citizenship of other countries (e.g. release from Bosnian citizenship costs 2000 DM, and release from Yugoslav citizenship costs around 2700 DM, termination of Croatian is 900 DM)20. These amounts must be paid for each family member, which is an almost impossible exercise for Roma families with many children.
The European Convention on Nationality obliges state parties to ensure that the fees for the acquisition, retention, loss, recovery or certification of the citizenship are reasonable.21 Whether the amount of the fees is unreasonable is to be determined in the light of all circumstances, including, for example, the costs the administration entails.22 Croatian authorities should make sure that the payment of administrative fees does not become an instrument to prevent persons from acquiring or losing citizenship.
The question of guidelines and interpretation of the law
According to the Ministry of Interior the text of the citizenship law is sufficiently clear and does not need guidelines or implementation regulations.23
To explain the lack of implementing rules the ministry stated that: (1) the law is being implemented at the level of the ministry only and by a limited number of knowledgeable persons who do not need written rules (the entire citizenship department in the Ministry has a staff of only ten persons) ; (2) police do not need any written instructions related to the implementation of the law, because the its only role is to receive applications and transmit them to the Ministry of Interior, where they are processed. In order to ensure conformity with relevant constitutional court decisions, the staff of the citizenship department is periodically informed, verbally, by the chief of this department on all relevant legal developments. The implementation rules are modified accordingly, following verbal instructions, without written documents.
However, the abundant jurisprudence of the administrative court on citizenship matters clearly shows that, in practice, there are many cases where eligibility requirements are interpreted differently or decisions on granting citizenship are not in conformity with the jurisprudence of the constitutional court. This indicates a certain lack of unity in the interpretation of the law, rooted, inter alia, in the absence of written guidelines for the implementation of the law. The lack of transparency surrounding the implementation of the Law is a further obstacle to the acquisition of Croatian citizenship.
The consultants recommend to the Ministry of Interior to issue written guidelines and to make them public, in conformity with the Council of Europe's principles applicable to the exercise of discretionary powers by administrative authorities.24
General recommendations:
· Adopt comprehensive anti-discrimination legislation, consistent with the minimum standards established by the Race Equality Directive, create an independent monitoring body and ensure effective legal remedies for victims of all types of discrimination.
· Ratify Protocol 12 to the European Convention of Human Rights
· Ensure legal protection and effective implementation of minority rights as provided by the Framework Convention for the Protection of Minorities.
Specific recommendations in the field of citizenship:
Recognition of a problem is the first step towards a solution. The Croatian government has already agreed to draft a new citizenship law, which would remove obstacles and address the main concerns of minority groups. The citizenship section of the national strategy for Roma is another important instrument for securing Roma equal access to citizenship.
· Design legislative and administrative measures to prevent indirect discrimination in access to Croatian citizenship on Latin script proficiency grounds.
· Secure the right of option into Croatian citizenship foe all de jure or de facto residents of Croatia as of October 8, 1991.
· Create conditions for late registration of domicile especially for persons who do not have it for reasons not imputable to them (e.g. children whose parents failed to register them)
· Clarify and make public the content of the "attachment to Croatian culture" requirement.
· Clarify and reduce the limitations introduced by the "respect for the legal system" requirement
· Provide Roma applicants adequate information about legal requirements and procedures
· Issue clear, detailed and publicly available rules for the implementation of the citizenship law
· Ensure non-discriminatory access to citizenship of applicants
· Ensure effective access to citizenship of indigent applicants through the use of wavers for administrative fees
· Simplify citizenship and citizenship related procedures and respect procedural terms reducing unreasonable delays
As signatory to the main international human rights treaties relevant in the area of housing25, and as State party to ICESCR, Croatia is bound to secure the right to adequate housing. The Committee on Economic and Social Rights, the United Nations' body that monitors compliance with ICESCR, had made clear that "adequate housing" means the right to live somewhere in security, peace and dignity26. Adequacy requires, inter alia, a degree of security of tenure27 which guarantees legal protection against forced evictions, harassment and other threats28 and availability of services essential for health, security, comfort and nutrition.29 Adequate housing must also be affordable30: people should be able to pay the cost of living in an adequate house without threatening or compromising the satisfaction of other basic needs. Rent control laws must be adopted and enforced to protect tenants against unreasonable rent levels or rent increases. Croatia should ensure housing subsidies for those who cannot obtain affordable housing, and not allow access to housing of the very poor to be entirely controlled by market forces. To be adequate, housing units must be placed in a location which allows access to employment options, health-care services, schools, child-care centres and other social facilities. It should not be built on polluted sites nor in immediate proximity to pollution sources that threaten the right to health of the inhabitants31.
Racial segregation is prohibited by Article 3 of the International Convention on the Elimination of All Forms of Racial Discrimination. The Committee on the Elimination of Racial Discrimination, which is the UN body monitoring compliance with ICERD, has made clear that racial segregation in the housing area may arise from governmental policies as well as from actions of private persons or private groups whose activities influence residential patterns32. As a State party to ICERD Croatia has the obligation to prevent all practices of racial segregation on its territory, to prohibit them by adopting adequate laws and regulations and creating effective complaints mechanisms as well as to eradicate all racially segregating practices and the consequences of such practices undertaken or tolerated by previous governments.
Croatia has also the obligation to secure the exercise of the right to adequate housing in a non-discriminatory manner. The UN Committee on the Elimination of Racial Discrimination has recommended State parties, including Croatia, to avoid discrimination of Roma by "develop[ing] and implement[ing] policies aimed at avoiding segregation of Roma communities in housing"33, acting "firmly against any discriminatory practices affecting Roma, mainly by local authorities and private owners, with regard to taking up residence and access to housing, and refrain[ing] from placing Roma in camps outside populated areas that are isolated and without access to health care and other facilities".34
Major European treaties prohibit discrimination in providing public services. By ratifying the European Convention on Human Rights, Croatia has agreed to abide by the Convention's antidiscrimination provisions, in relation to all protected rights, including the right to private life and all housing dimensions this right entails. Protocol 12 to the ECHR, opened for ratification by the Committee of Ministers of the Council of Europe, and signed by Croatia, will considerably expand the scope of the protection against discrimination, to include housing issues. Croatia was invited by the Council of Europe to sign and ratify the Revised European Social Charter35, which, in its article 31, contains provisions aiming at protection the right to adequate housing, by means of provision of adequate housing, affordable prices and by efforts to reduce homelessness.
In medium term, if it aspires to become a member of the European Union, Croatia will need to transpose the European Council's Race Equality Directive36, which bans, inter alia, direct and indirect discrimination in housing by public or private actors.
Roma housing in Croatia
The housing situation of the Roma in Croatia is diverse, with big differences between urban or rural communities, integrated or marginalized groups, or well off and very poor. Lack of coherent and systematic data concerning Roma constitutes an obstacle to having a clear picture of the situation. In the light of the seriousness of the facts documented during the field visits, this section of the report focuses on the housing situation of the most indigent and marginalized Romani communities, those living in segregated or partially segregated settlements.
In terms of housing situation one should make the distinction between Roma in Međimurie county who are settled on the Croatian territories for hundreds of years, and whose mobility was always very and Roma from the North West part of the country who came to Croatia from other Yugoslav republics between the 50's and the 80's. Most of them in fact came from Bosnia and Herzegovina in search of work. This region precisely was heavily touched by the war in the 90's. Many Roma were obliged to leave their houses and to run away from Croatia for a few years. Most of those who returned after the war found their houses damaged or occupied by others. Some Roma could not even return to Croatia because their houses had been destroyed and they had no way of proving that they have a place to stay in Croatia.
The geographical distribution of the settlements is uneven: Romani communities have been registered in 15 counties, with a higher concentration in ten of them: Sisak-Moslavina, Varaždin, Koprivnica-Križevci, Primorje-Gorski Kotar, Lika-Senj, Virovitica-Podravina, Brod-Posavina, Istra, Međimurje, the city of Zagreb. According to up-to-date official data, some hundred Roma communities are registered around the country37.Forty of them are segregated settlements placed outside the building zone, with inadequate or no infrastructure and where all or many of the housing units are built without authorization. The rest are situated at the margins of the cities or villages and are often partly within the building zone of the municipality and partly outside of it; some houses being built with authorization and some illegally. In some cases, there are Roma neighborhoods in the center of the municipalities, or families living shanties or old abandoned houses within the limits of the cities.
Some of the housing issues facing Roma are similar to those confronting the rest of the population (e.g war damages, severe limitation of the housing stock, return of properties, etc….). It should be noted, however, that Roma are additionally confronted with specific problems which do not affect the population at large or other minorities, such as: racial segregation, isolation, stigmatization and marginalization of entire settlements, deplorable living conditions, extreme overcrowding, lack of access to public services and widespread racial discrimination in accessing social housing.
Racial Segregation
Roma housing situation in Croatia reveals a strong pattern of residential segregation along ethnic lines.
Almost half of the registered settlements (40 out of 100) are isolated, situated outside localities where the majority population live38. Distances between settlements and the nearest localities are often large, between two and five kilometers, roads, if they exist, are badly maintained, public transport, if it exist, is hardly reachable. In these settlements there are no educational or health services, and no commercial or cultural facilities.
To date, Croatian authorities showed little or no interest in addressing racial segregation issues (banning it, preventing it, or eradicating the consequences of segregationist policies undertaken or tolerated by previous governments). In its third report on the implementation of ICERD, the government stated that racial segregation does not exist on the territory of Croatia39, the following reports to the United Nations simply skipped reporting on implementation of prohibition of racial discrimination (Article 3)40. The same gap exists in the draft outline of the National Program for the Romanies, which does not deal directly with racial segregation issues.
Legislation at national level does offers little or no protection against practices of racial segregation. The concept of "racial segregation" is not defined; there are no lows or regulations to expressly prohibit it. Housing regulations do not provide protection against racial discrimination, administrative procedure available in racial discrimination cases are ineffective, and no legal aid is offered by state to indigent victims of discriminatory practices. Racial segregation victims may only rely on ICERD provisions; however, these are rarely invoked, if ever, before national courts. The consultant hopes that the new draft strategy, under preparation, will contain relevant measures to tackle the issue of racial segregation.
Legalization issues
Illegal structures are not a Romani only issue in Croatia; they also exist in the non-Romani neighborhoods. However, the case of the Roma settlements is special, because does not involve individuals or families but entire communities, making the case by case approach almost impossible. The ownership of the land is complicated and confuse, settlements are situated on state land, privately own land or both. Sometimes settlements are inside the urban plans, sometimes outside, or part-in part-out. There are also settlements placed on the territory of two municipalities, which rise territorial competence issues. Apart from the legal side, there are also other aspects: the willingness of the local authorities to find solutions for the legalization of Romani settlements, the preparedness of the majority to accept them, the extent to which Roma themselves are interested and their readiness to cooperate.
As an example of the lack willingness of the local authorities, is Strmec settlement case, the local council voted in unanimity against legalizing the Romani settlement, after having promised to do so and received generous governmental funding for improving the infrastructure41. The Croatian Helsinki Committee reports that authorities in Beli Monostir, refused to authorize te installation or a water pipe in the Romani settlement, although an UNHCR programme provided funding for it42.
However, at the national level there are some encouraging developments: the Ministry for Environmental Protection and Physical Planning has proposed a programme of measures to facilitate the legalization of Romani settlements and create a legal basis for infrastructure improvement. The measures proposed include the assessment of needs followed by drafting of a plan for infrastructure investment in the settlements and solving property issues43. Representatives of the Government also explained, at a meeting organized by the Council of Europe in 2001, that the state would be prepared to donate the land if the settlement located on state land can be legalized.
Infrastructure and access to municipal services
Virtually all segregated Roma settlements have never been included in the building zone, had no infrastructure and no access to municipal services. In same cases, water pipes, gaz lines, and sewage systems cover non-Roma areas and stop to the first Roma house. Roma organizations report that Romani neighborhoods located within the building zone of the cities are often neglected by local authorities, with less services and poorer infrastructure as compared to equally poor non-Roma areas (e.g. in the city of Rijeka).
Transport: Many Romani settlements are located on the edge of villages or even at two to three kilometers from them. Almost no Roma own private vehicles and few can afford paying for taxis. They are dependent of public transportation to connect them to the rest of the world. It appears, however, that many Roma settlements have been let outside the public transportation network. In some cases, bus lines which used to serve Romani neighborhoods are cancelled (e.g. in Slavonski Brod - the bus line which was connecting the Romani settlements with the city center was canceled when the near by factory has been closed and the number of passengers decreased.). In others, the bus line passes along the Roma settlements, but there is no bus station there (e.g. in Kozari Put)44.
Although the law on primary education establishes clear obligations for the municipalities to organize school buses,45 Romani children from many settlements do not have access to them, being obliged to walk distances larger than the law permits.
Garbage collection There are reports that many municipalities fail to organize garbage collection in Roma settlements, ignore Roma complaints and do not respond to Roma requests for assistance to clean their neighborhood (e.g. the settlement Klaka, in Zagreb's Dumbrava)46.
During their visit in the Medimurje county, the consultants were informed by local authorities that, for instance in Kusanec, there is no garbage collection because the Romani settlement is built illegally. Furthermore, the local authorities presumed that if the set up collection, Roma will not be able and/or willing to pay for it. Finally, they argued that the fact that Roma do not complain about the absence of garbage collection is an indication that they accept the situation as it is. As a result, in Medimurje county, municipalities did not organize garbage collection in any of the Romani settlements whereas 80% of the non-Roma settlements and villages have it.
Instances of environmental racism47 have been also reported, where garbage is illegally discarded in the immediate vicinity of Roma settlements; the spontaneous garbage dumps created in this manner are poisoning the water of the dwells undermining Romani inhabitants' health (e.g. the settlement of Strmec). According to the Ombudsman reports, unlawful dumping of the garbage is performed by private actors, with the tacit consent of the local authorities.48 In other cases, local authorities have failed to organize the cleaning of highly polluted Romani neighborhoods even after obtaining special governmental funding for it.49 Furthermore there are unreasonable delays in re-locating Roma people from unhealthy areas, although local authorities seem to be aware of the possible negative consequences on the inhabitant's health.50
Roma access to social housing
Roma encounter serious difficulties in accessing subsidized housing caused by social housing allocation rules adopted by municipalities and implementation practices. Indigent Roma, with extended families and who live in appalling condition complain for never receiving social flats although they insist in applying year after year. Commenting on the situation in the year 2000, the Croatian Ombudsman writes: "There is almost not a single case that social flats or land for building a house was granted to socially deprived Roma family."51
Although rules of social housing distribution are not discriminatory on their face, they have a disparate impact and result in indirect discrimination on Roma, de facto barring their access to social housing. According to criteria established by some municipalities, applicants obtain, for example, 1 point for each year they've worked in Croatia, and two points for each year of employment in the city. There is no upper limit to it; a worker with ten years of local employment will receive 20 points. Roma, who as a rule are unemployed, receive no points. Eventually, if they are beneficiary of assistance for maintenance, they would receive six points, which are not enough to give them a chance to obtain a social flat.
Eligibility requirements such as length and continuity of residence and length of employment disadvantage Roma in the competition for municipal housing. For example: in Sisak, applicants are required five years of residence, in Pula ten years of continuous residence, not only of the applicant but also of each member of the household.52 Groups with increased mobility and people who were forced to leave Croatian territory during the war, are clearly disadvantaged by this type of requirement.
In order to ensure equal access to social housing for all those in need, it should clearly incorporate the non-discrimination principle in public housing policies, expressly prohibit all forms of racial discrimination from the allocation of social housing, institute sanctions, provide victims of discrimination with effective remedies and create independent and transparent monitoring mechanisms.
The allocation criteria should be reasonable, objective and based on need. Allocation procedures should also be conducted in a transparent manner and the effects of these policies criteria and procedures on vulnerable groups would need to be periodically evaluated. It is to be mentioned here that such evaluations are only possible when the housing providers lawfully gather information on the ethnicity or race of the applicants and use this data to analyze the allocation process and its impact on ethnic applicants.
Discrimination in the private housing sector
Discrimination in the private housing sector also seems widespread. Roma report facing direct discrimination and being systematically refused when trying to rent flats from private persons or private companies.
One representative of a municipality in the Medimurje county explained to the consultants that non-Roma inhabitants would in general not like to live together with Roma and therefore they would not accept to rent or sell flats to Roma as they think this would decrease the value of the flats in the neighborhoods. Many people are also of the opinion, according to the interviewee, that it is better for Roma to stay together in separated settlements as they still lead a semi-nomadic way of life and as living in settlements is cheaper.
Discrimination by private actors is, admittedly, difficult to tackle. States have nonetheless the obligation to prevent and rigorously sanction discriminatory practices carried out by private agencies or individuals. Private housing agencies which are in contractual relations with the state may be requested to adopt non-discrimination policies.
Governmental policies
The outline program for the Romanies, prepared by the Council for National Minorities in 2001, contains a number of housing related items to be dealt with in the framework of a future strategy for Roma. It plans to cover the following areas: right to appropriate housing, setting of minimum housing standards, urban development plans, legalization of settlements, drinkable water, sewage system and waste water disposal, environmental protection, infrastructure of settlements (approaching roads, access to houses, electricity, etc.), measures of accommodation and care in eviction cases, special programs for construction of apartments for endangered population, and for the development of settlements, programs of comprehensive development of Romani settlements (mid- and long-term)53. All these elements should be dealt with in details in the forthcoming National Strategy to be achieved for December 2002.
Further initiatives with regard to improvement of the Romani settlements were recently taken by the Ministry for Environmental Protection and Physical Planning, as mentioned above in the part concerning legalizations of Romani settlements. The objective of the Ministry is to facilitate the legalization of Romani settlements and to further improve the infrastructures in these settlements. The Government thus issued a recommendation to local authorities to make use of the fact that zoning plans have to be renewed in 2002 so as to include Roma settlements in their zoning, i.e. to legalize them. According to the Law on Rehabilitation of Illegal Construction, municipalities are competent to determine which sites can be legalized and included in the zoning plans and have two possibilities: either to include illegal settlements into a new zoning plan or to simply legalize the illegal constructions without having to design a new zoning. Legalization of the settlements provides the possibility for improvement of the infrastructure.
Therefore, the Government put funding at disposal of the local authorities for infrastructure development in Roma settlements (up to 3 094 500 Kunas between 1998 and 1999 according to information provided by the Government54). According to the national authorities, a legal and financial basis for improvement of the living conditions of the Roma is now existing. The implementation further depends on the willingness of local authorities and municipalities. It seems, in this respect, that not all the funds allocated by the Government were so far used by municipalities and that in some cases works have been delayed. For instance, the City of Zagreb was allocated 100 000 Kuna for a project of renovation of Romani settlements but the project is, to our knowledge, not yet completed.
It seems however that no additional funding was allocated to Roma projects in 2002 from the Council for National Minorities due to a general lack of funds and the need to grant financial resources to all minority groups.
· Undertake in-depth research to identify various forms of discrimination against Roma, gather comparative statistical data, examine discriminatory effect of housing policies and regulations.
· Design specific and coherent policies capable to address each and every one of the housing problems facing Roma.
· The housing section of the National Strategy concerning Roma, under preparation, should emphasize the need for legislative framework and specific guidelines to the relevant ministries and local authorities concerning the improvement of the housing situation of the Romani communities.
· Design and implement relevant measures to tackle the issue of racial segregation.
· Encourage local authorities to legalize Romani settlements wherever needed and develop infrastructure.
· Investigate environmental conditions in Romani settlements and, where needed, take urgent measures to protect the health of inhabitants
· Incorporate the non-discrimination principle in public housing policies, expressly prohibit all forms of racial discrimination from the allocation of social housing, institute sanctions, provide victims of discrimination with effective remedies and create independent and transparent monitoring mechanisms.
Roma Health Status in Croatia: absence of data
Non-governmental organizations report a generally bad health status among Roma living in segregated settlements where housing conditions are deplorable, water is usually insufficient, sanitation deficient and heating missing. People are more exposed to infectious diseases; jaundice and tuberculosis are allegedly widespread.
A conclusive picture of the Roma status of health in Croatia proves difficult to establish as the information is scarce and scattered between local health institutions, private doctors and non-governmental organizations. The consultant did not come across specific studies on Roma health status in Croatia55. The Ministry of Health does not centralize any Roma health information56. There are, nonetheless, indications that public health institutes gather information on various diseases and the ethnicity of the persons they affect57. The Ministry of Health has identified the collection of reliable data on the health status of Roma as one of its priorities and is planning to involve practitioners and field nurses in gathering such data.
Health rights and non-discrimination clauses
Art 58 of the Constitution guarantees everyone the right to health protection, in accordance to the law.58 Medical care, whether in public or private practice, is considered a public service. Under the law, health protection in Croatia is universal (tends to cover the entire population), continuous (it covers the entire life of the patients), accessible (rather on geographic sense than in other59). Patients can freely choose their doctor60, and have access to specialized medical care.
Non-discrimination clauses: Both the Croatian health protection law, and the medical code of ethics impose on health personnel an obligation to treat patient equally, but none of them insure sufficient protection against discrimination or racial or ethnic grounds.
Patients have the right to file a complain about the quality, content and type of medical care he received with the director of the hospital, who is obliged to answer within three days. If not satisfied, the patient can further complain to the Chamber of Doctors, Ministry of Health and seek judicial protection.61 Health institution and personnel found in breach of the equal treatment provisions may be sanctioned with fines ranging from a couple of hundreds Euros to a couple of thousands.62 Although the wording of the law and the complaint mechanism seem to offer sufficient guarantees to fully protect the right to equal treatment, administrative and judicial practice shows that, until now, the complain mechanism was strictly used in relation to the medical aspects of the care received and never used to challenge differentiated treatment on grounds of race or ethnicity.
As for the code of medical ethics, it also has an equal treatment clause, obliging Croatian doctors to respect the rights and the dignity of their patients and to provide medical care to all, regardless age, gender, race, ethnicity, religious or political belief, or social status63. While the existence of this obligation in the code is to be applauded, the absence of a sanction attached to its breach reduces the text to a good intentions exercise. Indeed, according to the legal department of the Medical Chamber, until now no disciplinary procedure has ever been initiated because of un-equal or discriminatory treatment64. There is no case-law to clarify the content of the obligation, and, if there would be a case, is not clear whether the Medical Chamber's Committee for Ethics would consider discrimination as an offence under its actual Rules.65
Attitudes of medical personnel
hostility – verbal abuse and poor treatment of Romani patients and refusal to examine, treat/document or poor treatment of Romani victims of skinhead attacks or police brutality
Roma organizations and social workers made frequent allegations and provided examples66 of poor treatment of Romani patients in hospitals and by emergency services staff67. A representative of the Ministry of Health acknowledged tense relation between Roma patients and health care personnel, but claimed that they are rooted in the aggressive behavior of the Roma68.
The consultants were also informed of poor treatment by doctors and sometimes of refusal to examine Romani victims of skinheads brutality. In fact, national and international entities noted and documented an increasing number of police brutality cases in Croatia69. According to the Croatian Ombudsman's reports, police violence against Roma is a common phenomenon. When seeking redress, Romani victims seem to be confronted with doctors' reluctance or refusal to document injuries in a timely and thorough manner70.
Victims of police brutality should be treated with compassion and respect for their dignity. They are entitled to access to the mechanisms of justice and to prompt redress for the harm that they have suffered. Doctors' refusal to examine and document further aggravate the injuries suffered at the hands of law enforcement officials, undermines police brutality victims' trust in health care personnel, discourages them to seek medical care and undermine their chances to obtain judicial redress. However, doctors have an ethical obligation to properly attend patients regardless their ethnicity. Furthermore, they have a legal obligation not to discriminate, to fill medical reports and to notice the authorities in serious injury cases.71
Roma citizens without health insurance obliged to pay a deposit in advance
The Ombudsman, in his 2000 report, underlined the fact that many deprived Roma families are not included in the regular system of social care and are not informed of the conditions to obtain free health protection. Moreover, he reports that Roma are often requested to leave a deposit when trying to be admitted in hospitals on the grounds that they do not have a health insurance, a condition which is not imposed on other citizens. Human rights NGO's report similar practices: in Slavonski Brod hospital for instance, a note posted on the wall informs that non-insured persons have to pay in advance a deposit of 5000 HRK (approximately 625 Euros) so as to have access to examination and treatments.
Community nurses: failure to visit Romani settlements
Community nurses are due to visit women during pregnancy, after birth, to see children up to 1 year of age and persons belonging to risk groups. Insured persons do not pay participation for community nurses visits72. The average number of visits per year is established annually by the Ministry of Health73.
Social workers and even representatives of the authority told the consultants that very often, community nurses do not visit the Romani settlements whereas they regularly visit, for instance, ethnic Croat mothers. There is therefore a lack of monitoring of the health status and a lack of prevention among vulnerable groups within the Romani communities. Moreover, Romani mothers are deprived of the health education which under normal circumstance would be provided for by community nurses.
Access to health insurance
Obstacles in acquiring Croatian citizenship and difficulties in establishing residence in Croatia impede Roma access to health insurance. For citizens, restrictive regulations on registration with unemployment bureaus and unreasonably short periods of time permitted for registration also place undue hardship on indigent applicants. Ethnicity in general plays a role in accessing various public services, including health. The World Bank, in its report on Economic Vulnerability and Welfare Study on Croatia74 states that the availability of access to determinant living standards is lower for Roma than for other citizens. Moreover, it appears that non-citizens or foreign spouses of citizens have no access to social security and have to pay full costs for medical treatments. This is, according to the World Bank, very often the case for Bosnian Muslims who are allegedly facing difficulties when trying to obtain Croat citizenship. The report gives as an example the Roma settlement of Kursanec, a village in the Medimurje county, where an estimated of 20% of the inhabitants do not have a health insurance.
However, local authorities in Medimurie country seem not to be aware, or chose to ignore these alarm signals and informed the consultants that all Roma in their region have health insurance, equal access to health services (access to maternity, adequate community nursing coverage)75.
Children who do not have Croatian citizenship are not health insured. This is so for all categories of children, even for those who are legally on the Croatian territory. In serious cases, they may go to hospitals and, as a rule, children are treated, but parents receive bills which they cannot pay. Social centres may grant one time assistance to cover the expenses, but this is a discretionary procedure, subject to funds limitation.
Pregnant women without health insurance do not benefit of free or reduced cost pregnancy76 related medical attention even if they are legally on the Croatian territory. Romani women -- who tend to have more problems in acquiring Croatian citizenship and then health insurance -- are particularly affected by these regulations. The consultants were informed that more and more women avoid going to hospitals to give birth, because they cannot afford the costs77. This seems to lead to an increase of the number of home-births, accompanied by the corresponding increase of uncertainty and health risks. In a recent study on poverty in Croatia, the World Bank also note that in Roma settlements many are born at home78.
Access to emergency care
Legal provisions: A multitude of obstacles make it difficult for Romani patients to access emergency services: settlements situated in remote locations, lack of private or public phones, the absence of street names and public lighting, lack of transportation, and nearly impassable roads. Furthermore, recent court cases seem to indicate that, at least in some hospitals, there is a consensus to ignore or postpone answering to calls originating from the Romani communities, particularly when is about giving birth. This attitude has both a cultural and legal component. On one hand, part of the emergency health personnel seems to believe that pregnant Romani women tend to abuse the calls and try to use the ambulances as transportation means. On the other hand, the Croatian law does not consider giving birth as a matter of emergency, unless there are life threatening complications79.
There is no special law dealing with emergency care in general80, provisions are scattered in the law on the health protection81, law on the health insurance, law on the health protection of foreigners and on the instructions on emergency services on public roads.82
Under the health protection of foreigners law 83 all foreigners must pay emergency services, but payment is done from different sources. For those insured84 the payment is done by their insurance company. The Croatian state pays emergency services for foreigners who have the right to health protection under international agreements, those invited by a state body, refugee or person awaiting for refugee status, stateless and persons awaiting expulsion when expulsion is not possible due to their severe health state, minor foreigners found on the territory of Croatia without parental care, foreigners suffering from certain diseases (e.g. cholera, plague, diphtheria, etc). and foreigners who were given health services but who were not able to pay for them.85
Implementation: Roma NGOs report that ambulances respond with significant delays to delays to Roma calls, do not come at all or ask for money to provide the emergency service. A Zagreb city hall civil servant confirmed: "we know that the ambulances do not go to the Roma settlements". To justify it, the director of one hospital in Medjimurie stated in court that Roma abuse emergency transportation, call ambulances for normal birth, when not necessary, to make jokes or with the intention to use the ambulance as a taxi. "I have to say that hospital employees, especially those working in ambulance and reception areas are exposed to Roma unpleasant behavior, to their impatience, aggressiveness and sometimes to the fact that Roma are breaking glass and destroying objects. This might have been the reason why they do not send anymore ambulances to Roma settlements."86 One of the hospital employees declared that already in October 2000 there was a consensus in the institution not to sent ambulances to Roma settlements when Romani women are giving birth.87
Failure to attend emergency calls from Roma settlements have resulted in at least one documented case in death:
A couple of years ago. a Romani woman from a Roma settlement started to have contractions. She had pain, she realized that something goes wrong. She paniqued, the husband paniqued, the relatives paniqued. The family lives in severe poverty, have no transportation means. In the entire settlement there was no transportation available at that particular moment. Several members of the family made phone calls to the emergency service asking for an ambulance. In total there were five phone calls in a period of one and a half hour, while the birth was going on and the child was still alive. The first call, made at 6.43 a.m. was answered by a nurse who refused to send an ambulance saying that cars are not sent out for birth. She asked nothing about the medical state of the woman. The other four calls were answered by a technician who refused, in a rude manner, to send an ambulance, although he was expressly told that the water was broken, that the woman is alone, that there is nobody there to drive her to the hospital, and that the woman does not have a penny to call for a taxi. The technician knew that the situation was serious because two of the callers told him that the child comes with his legs ahead and that the legs are already out. From the records of the conversation is clear that the technician knew that the calls are from a Roma settlement. Seeing that the ambulance refuses to come, the neighbors called the police. Finally, the police called the ambulance, which arrived at 8.45. By then the child was dead. The medical report concludes that if the death of the child could have had been avoided would the mother have medical assistance during birth. Emergency service staff stated that the policy of the hospital was not to attend pregnancy related calls from Romany settlements: "... sometime in October last year, when I came back to work after holiday, I was informed that we should not go any more to Roma for women giving birth. I do not know who exactly told me that, some of my colleagues, maybe not just one, because there was a group of us in the operator's room."
The vaccination rate of Romani children remains in general significantly lower than the national average, despite efforts of the authorities to address the issue (for instance, vaccination campaigns were launched in the Medimurje county). According to the Ministry of Health88, the lack of immunity coverage among Roma is due to the reluctance of Romani mothers to have their children vaccinated. The Ministry informed the consultant that it would start organizing education campaigns in this respect for Romani mothers.
Government policy to improve Roma health
The Ministry of Health expressed its intention to launch a national programme for the improvement of Roma health and identified a series of relevant issues: lack of health education; unsuitable housing conditions; inadequate vaccination coverage of Romani children; difficult access to health care facilities; lack of registration with family doctors; increased mobility of some Romani families; tense relations between health care personnel and Romani patients.
However, these priorities are not reflected in the health chapter of the draft outline of the National Program for Roma, which is rather vague. Furthermore, to date there are no indications that ministerial plans are being developed with a view to implementation. Finally, the consultant is of the opinion that some important elements of a health strategy should be added such as access to health insurance and its relation to access to citizenship, children health insurance coverage, free medical care for pregnant women, equal access to emergency services. Furthermore, the strategic approach needs a health rights and anti-discrimination focus, active participation of Romani experts, a continuous monitoring mechanism and regular reporting.
In implementing health policies, competent authorities should create a space for continuous dialogue with Roma organizations and ensure their meaningful participation.
· Ensure adequate data collection on the health status of Roma as a bases for developing sound health policies and identifying priorities. The concept of adequacy in this context means full respect for international standards on privacy and data protection and requires participation of Roma themselves and transparency of the entire process.
· Adopt clear anti-discrimination provisions in the field of health, in line with the minimum standards established by the EU Race Directive (Directive 43/2000). Secure continuous monitoring and reporting on the implementation of equality clauses.
· Ensure proper response to the needs of the victims of police brutality in general, and the needs of the Romani victims in special by: (i) providing proper training to sensitize health care personnel to police brutality issues; (ii) issuing guidelines for doctors in public and private practice to ensure proper and prompt aid; (iii) thoroughly investigating patients allegation of doctors' refusal to examine and document injuries and, when necessary, initiating disciplinary procedures.
· Investigate and take measures against discriminatory practices in access to health care institutions.
· Ensure regular visits by community nurses to community settlements.
· Review and modify health insurance legislation so as to insure access to health care of all children on Croatian territory, including those in irregular situation.
· Ensure pregnancy related health care for all women and eliminate racial/ethnic discrimination practices.
· Adopt detailed regulations on provision of emergency services, prohibiting discrimination and including dissuasive sanctions of discriminatory behaviors.
· Continue efforts to improve vaccination coverage of Romani children.
According to the World Bank report on Economic Vulnerability and Welfare Study for Croatia89, Croatia is the second richest country of the former Yugoslavia, its social indicators are similar to those of the richest European countries and the system of social transfers is one of the most developed in the region. However, this very positive picture does not prevent extreme poverty from existing and it is obvious that many Romani communities belong to the category of the extremely poor and disadvantaged people even if, of course, not all Roma are poor.
The World Bank estimates that only 4% of the population of Croatia belong to the category of absolute poverty (those persons living with less than 4,30 US Dollars a day). Nonetheless, these 4% of the population live in extreme deprivation, meet with great difficulties when trying to find a roof , have a very poor diet, a very low educational level and are trapped in the vicious circle of misery. The contrast with the living standards of the majority of the population is all the more striking as most people in Croatia live better and better whereas the poor get poorer and poorer.
Again, even if Roma are not the only poor people in Croatia, ethnic affiliation is a determining factor for poverty. The sum of exclusion from the mainstream society, bad living conditions, low educational level, direct and indirect discrimination, especially in the area of access to social rights and social security net, unclear situations with regard to citizenship locked many of the Roma into unbearable deprivation and marginalisation. Employment and economic opportunities remain out of their reach.
As an example, the regional labour office in Cakovec estimates that more than 80% of the registered unemployed Roma are not qualified at all and this applies to 97% of the women. 83% of the Roma have no working experience at all.
It is to be noted that the situation is even worse for these vulnerable groups among the Romani communities, e.g. the elderly, children, women, disabled persons, foreign Roma or Roma without clear citizenship status, who are almost completely deprived of any social rights and benefits.
The social welfare system in Croatia is designed to respond to each category of needs or persons in need with one type of benefit, each of them with their own requirements, implementation rules and practices. This makes the system difficult to understand, to access and to monitor. The social welfare area is one of the most relevant for Roma and one of the areas where the government was most active, collecting and analyzing data and appointing a contact person for Roma issues.
On its face, the social care legislation does not discriminate along ethnic lines. However, in practice, certain requirements have a disparate effect on certain ethnic groups. It was beyond of the scope of the present report to provide a detailed analysis of the impact of each and every social care provision or practice on Roma. The report rather aims at highlighting the most visible obstacles for Roma to exercise their social rights and to provide guidance for more in-depth analyses by the competent authorities and for the national strategy for Roma. Therefore, the consultants chose to concentrate on two main areas: the assistance for maintenance, which is the only source of income for thousand of Romani families in Croatia, and the effect of the new law on children allowances, which again, is very relevant in the case of Roma. Disability benefits, support for purchase of school books and placement of children in institutional care are also briefly dealt with.
Assistance for maintenance
Legal provisions: Assistance for maintenance is a means tested cash transfer aimed to support single persons or families in need.90 It is a survival benefit, targeting the poorest of the poor, who do not have any other way to meet the month ends. Assistance for maintenance is paid in cash, unless the social center decides otherwise.
The right to receive social support is an individual right. Social assistance centers have the obligation to review the applications on case by case basis, establishing relevant facts in each and every one of them. Further, each applicant has the right to receive a written91 and reasoned decision, which must include information on the appellate bodies and terms of appeal. Each applicant has the right to challenge, first administratively and then before the administrative court, the decisions considered unfair. The law does not contemplate any collective determination of rights on any ground92; in no case is permitted to make collective determination of rights without written decisions.
Implementation: During the field visits in 2001 and beginning of 2002, the consultants could check that distribution of assistance for maintenance is not uniform on the Croatian territory: in some of the regions Roma receive the entire amount in cash, while in others, the rule is that more than half of the amount (65%) is paid in kind (food tickets)93.
The Ministry of Social Affairs declared that they are not aware of the practice of distribution in kind, and specialized literature indicates that for the population at large assistance in kind is rather the exception than the rule94. However, the consultants had confirmation that in all Roma settlements in Medjimurie county the practice is existing for at least four years,95 and is widespread96.
Roma leaders and Romani individuals interviewed by this consultancy have admitted that among beneficiaries of social support there might be -- and are -- individuals who use the cash they receive for other purposes than the basic needs envisaged by social assistance centers. They agreed that, in these cases, the state should have a case-by-case mechanism to protect children and other members of the household against abuses. However, they strongly criticized the existing system on the following grounds:
1. The existing administrative practice targets Roma as a group. There is no other group who lives in poverty in Croatia and is systematically subjected to this type of treatment. Although each family receives an individual administrative decision on the level of benefits and type of distribution, the fact that the overwhelming majority of the Romani families living in settlements in Medjimurie receive a part of their benefits in kind indicates that the determination has a collective character rather then an individual one. In other words, Roma are considered, as a group, unable to manage their budgets.
2. In the daily life, this practice works against Roma and not in their favor. They cannot use the food tickets they receive in any shop, but are obliged to buy in the shop designated by the social assistance center. Shop owners have no competition, they can - and many of them do - impose higher prices than those practiced by other shops, bring expired or low quality food, limit drastically the variety of products available, refuse to serve, show hostility or disrespect for certain consumers. The practice contributes to deepening the segregation and social exclusion of Roma. The majority of these shops are placed in the settlements. Romani families are deprived of the opportunity to initiate and maintain social relations with the non-Roma population while shopping in the city or in the next village.
Examining a number of administrative decisions on the distribution of assistance for maintenance in kind, the consultants could verify that they do not contain any reasoning. Beneficiaries do not know, therefore, which is the legal ground on which the social center decided not to give them the entire amount in cash, which makes it difficult to appeal against it. Furthermore, Roma low legal awareness, lack of education, fear to antagonize the administration, and lack of legal aid make it almost impossible for them to challenge these decisions.
Legal provisions permitting the authorities to replace cash benefits with benefits in kind, are not a Croatian only feature. They exist in several countries from the region. The main argument for introducing them is a certain preventive value in very specific individual cases. This value, however, might be undermined by the reduction of autonomy of the person concerned and by the threat of human dignity that the system poses.97
It is within the sovereign domain of the state to adopt the social protection measures it considers appropriate, within the limits of its resources. The state discretion, however, needs to be exercised within the limits imposed by fundamental non-discrimination principle. It is inappropriate and illegal to impose the replacement of cash transfers on an ethnic group because of its ethnicity and because of the presumptions related to its ethnic [mis]behavior. It is equally illegal to adopt collective measures, ignoring individual circumstances of each household. Good and effective administration requires the issuing of written and reasoned decisions.98 Finally, absent a written and reasoned decision, the ability of the social support beneficiary to challenge the legality of the replacement of [part of] their cash benefits with in kind benefits is jeopardize.
Recently the consultants were informed that Croatian authorities intend to review these practices, and to ensure respect for the equality principle. As of today, they did not have a confirmation that the practice was reversed.
Children allowance
There are indications that Romani children are disproportionately affected by the eligibility requirements imposed by the new children allowance law, particularly those related to the citizenship status of their parents.
Legal Provisions: Child allowance is a means tested cash transfer, used by the parents or other qualified persons for the upbringing of the child.99 Access to children allowances depends, inter alia, on the income of the household where the child lives, on the legal status of the child, on the legal status of the parent, on the parent's length of residence in Croatia and on the continuous nature of the residence.
The law grants allowances only to children with Croatian citizenship and domicile in Croatia. It expressly excludes stateless children or children with foreign citizenship, even if they legally reside in Croatia.100 Until 15, all children receive allowances, regardless school attendance. After the child turns 15 he has access to allowance only if attending school.101
Parents, adopted parent, guardian (tutor - skrbnik), step parents, grand parents and the child himself, if over 18 and incorporated into the educational system, as well as the person who takes care of the child according to the decision of the body competent for the social care may apply for allowance. The applicant must prove that s/he lives in the same household and effectively takes care of the child and that the household's income does not exceed a certain limit established by law. The child has access to allowance only if the person who applies on his behalf is a Croat citizen or a permanent resident who, at the moment of the application resided at least three years continuously in Croatia102.
Implementation: During the field visits the consultants heard frequent complaints from Romani parents and Romani organizations that Romani children's' access to allowances is severely limited.
Eligibility requirements for children allowances and their discriminatory effects on Romani children have been also discussed at large during the national conference of Croatian Roma organizations in July 2001103.
The first equality concern is related to the exclusion from children allowances of stateless children, children with foreign citizenship (even if legally residing in Croatia) and regardless the status of their parents. As described in the citizenship section of this report, there are many Romani children who did not acquire Croatian citizenship although they and their families have genuine links with the country.
The regulations on children allowances also impose requirements concerning the status of the parents, i.e. one parent should have Croatian citizenship or at least have permanent residence. Again, this requirement has a disparate effect on Roma, and Romani children are made responsible for the status of their parents.
Step parents are entitled to claim children allowance. However, the Croat legislation does not provide a definition of step parent letting at the discretion of the implementing authorities to decide whether the man who lives within the traditional Roma marriage and is not the biological father of the child is considered "step parent" in the sense of the law.
For example: a Croat child who lives with his non-resident Roma mother and her Croat citizen Roma partner would not have the right to child allowance unless the partner of the mother is considered "stepfather" and therefore able to apply for allowance on behalf of the child.
Finally, the law states that children over fifteen will benefit from a children allowance only if they attend school. This type of limitation is commonly justified by the incorporation into the labor market of teenagers who do not attend school anymore and presented as an attempt to encourage school attendance104. However, Roma have the lowest representation in the school system after fifteen because of very high rates of drop-out. On closer scrutiny, neither argument holds much water for Roma cases: the unemployment rate among Romani population is extremely high, and kids after 15 have virtually no chance to find a job. This is all the more true for Romani girls who have even less chances than the boys either to attend school or to work after fifteen.
The consultants are of the opinion that competent authorities should undertake in-depth research on the impact of the new law on minority children, examine and eventually modify the eligibility requirements.
Disability benefits
Although the law provides for the possibility to receive disability benefits, Roma seem to exercise their disability related rights to a very limited extent, forreasons having to do, on the one hand with the health care system operation and, one the other hand, with the lack of information.
Properly diagnosing disability is one of the main obstacles, as many Roma do not have health insurance enabling them to access specialized care or they need referrals from primary doctors which are not easy to obtain. Moreover, fees for consultations are high, and administrative procedures heavy.
A representative of the Ministry of Social Affairs told the consultants that Roma have indeed very little or no access to disability benefits, and she explain it by Roma low awareness of their rights and insufficient understanding of what could be a ground for disability benefits: "Roma do not know that there is such a right. They do not recognize the illness as a ground for disability benefit e.g. if the child is deaf they will not apply for benefits".
The existing data does not permit an assessment of the influence of ethnicity on access to disability benefits. In order to secure equal access, the state would need to undertake in-depth research on this topic, remove obstacles to obtaining disability certificates and make sure that social workers comply with their legal obligations to adequately inform citizens of their rights.
Free school books for socially threatened primary school pupils
Indigent families are entitled to receive state support for school books provided that they are eligible for assistance for maintenance, which implies Croatian citizenship or permanent residence status.
The consultants frequently heard complaints about insufficient support for acquiring school books for children in indigent families and for delays in payment of school books allowances105. Moreover, they were informed by Roma representatives that some offices (e.g. in Zagreb city) arbitrarily deny allowances for books to children whose parents do not have Croatian citizenship.
Children whose parents have only temporary residence or are in an irregular situation have no access to school books allowances. Romani families and Romani children are particularly affected by these regulations, as they often are in precarious economic situation and with unclear citizenship status.
Placement of Roma children in institutional care
According to the Family Law, the authorities have the possibility: (i) to reduce social benefits of the parents who do not take proper care of their children, do not send them to school, force them into begging (ii) to facilitate the process of removing children from their family and place them into institutional or foster care.
The consultants received contradicting messages about placement of Romani children in institutional care. On the one hand, the authorities say that more Roma children should be placed in care, for their best interest, whereas Romani representatives complained about too frequent and unjustified removal of children from parental care.
The consultants are of the opinion that the government should carefully avoid any practice of removing children from their families on ethnic grounds. Criteria applied to determine whether there are reasons to deprive Roma parents from parental care should not only be crystal clear but also culturally sensitive. Facially neutral legislative and administrative measures that would result in a disproportionate number of Romani children families being separated from their families would be discriminatory and therefore in breach of obligations assumed by Croatia when ratifying international human rights treaties.
· Redesign the social benefit system so as to facilitate equal access for minority groups and include those in need who are currently left out.
· Investigate and remove all discriminatory practices in the distribution of assistance for maintenance
· Assess the impact of the new law on children allowances on Romani children, critically review the eligibility requirements and adequately amend the law
· Undertake in-depth research on Roma access to disability benefits, remove obstacles to obtaining disability certificates and make sure that social workers comply with their legal obligations to adequately inform citizens of their rights.
· Ensure that social workers comply with their legal obligation to provide information and assistance to all those entitled to social benefits.
· Improve communication and cooperation between Roma communities and state bodies with attributions in the field of social work; eventually consider the possibility to train Roma community mediators
· Ensure that the best interest of the Roma children has always priority in all procedure affecting them.
towards the elaboration of a national
strategy for roma
This section proposes a non-exhaustive list of issues to be taken into consideration in the elaboration of national strategy for the improvement of Roma situation in Croatia, to be completed in 2002. It indicates some of the challenges encountered by authorities in other countries when developing their strategies regarding Roma. It maps substantive issues which should be addressed in the areas of social protection, health and housing and lists the most common obstacles and gaps encountered up to date in the adopted strategies in other Central and Eastern European countries.
Substantive issues and challenges in developing Roma strategies
All candidate countries that are required to pay special attention to the protection of Roma as a condition for accession to the European Union106 have already adopted national strategies for the improvement of the situation of Roma.107 The elaboration of such strategies and the requests for significant EU funding to implement them become standard practice in addressing Roma issues in the region.
Some of the countries have articulated fundamental principles which guide their attempts to address Romani issues,108 others use explanatory reports to clarify their positions.109 Priorities result from the order and the nature of the measures adopted, without being expressly formulated. Target groups are very often limited to Romani communities who are subjected to an wide range of "civilization efforts." Measures aimed to change systems, educate legislators, change attitudes of public civil servants or professional groups are rare. The lack of reliable data in many areas of intervention is a common problem for all countries in the region.
This section is an attempt to articulate some of the substantive issues and some of the challenges in elaborating national strategies for Roma, in general and in the area of social protection, health and housing in particular. The proposed check lists are comprehensive, but not exhaustive. Some of the issues/challenges necessarily appear in more than one section. The material might be organized along different lines. They are working proposals, which hopefully will be instrumental to further development of national programs for the improvement of the situation of Roma.
On the substance, Roma strategies should respond to four basic conditions:
a) legitimacy: to respond to the problems, the needs and the priorities of the community as identified by the community itself. This condition requires the participation of Roma representatives and experts as equal partners in the elaboration of the strategies.
b) comprehensiveness: to address all areas of Roma life, including citizenship, physical safety, residence and freedom of movement, access to justice, participation, education, housing health, social protection, etc.
c) mixed approach combining a minority rights perspective with efforts to ensure respect for Roma rights and adequate social policies,
d) clear anti-discrimination focus.
An articulated implementation mechanism based on existing governmental agencies or on further institutional building, realistic deadlines, and adequate budgetary allocations are sine qua non for success. Systematic monitoring and a transparent reporting system are needed to ensure the accurate assessment of the implementation. Active Roma participation should be ensured at all levels and stages: elaboration of the strategy, in the implementation stage and within monitoring and reporting stages.
Apart from these requirements, before elaborating strategies on health, social assistance and housing, basic principles in each of these fields should be agreed upon. Short, medium and long term objectives need to be defined. Roma community's priorities need to be articulated. An explanatory report providing information on state of art, explain the governmental approach and presenting the rationale for the measures adopted might be beneficial.
The identification of needs should take into consideration the heterogeneity the Roma population, differences between sub-groups, social and educational diversity and mobility patterns. Regional characteristics and rural/urban distinctions are important. The working presumptions related to the number of Roma in the country need to be discussed from the very beginning. To evaluate correctly the dimension of the problem, governments need to encourage Roma participation in censuses as well as qualitative and quantitative research, with full respect of privacy rights. There is a need to gather data and produce comparative statistics on the impact of various regulations and practices on different groups in order to examine /prove disparate impact for anti-discrimination advocacy and litigation purposes.
It is not disputed that the elaboration of such a strategy is a difficult and sensitive task. Among the main challenges one might list:
q Lack of basic data necessary to fundament strategies.
q International pressure which sometimes results in the adoption of insufficiently prepared strategies.
q The tendency to replicate structures and measures adopted by other countries out of the fear not to be remain behind in the race for EU accession.
q The general lack of understanding of Roma integration as an opportunity for the country instead of being considered a problem to be solved contra-coeur
q General lack of human rights culture which leads to patronizing approaches with a tendency to treat Roma as "non-adaptable" subjects of state intervention.
q An obsession for educational programs aimed to teach Roma how to "behave" and the change their "life style" and "values."
q Reluctance to recognize discrimination as the main cause of Roma poverty and social exclusion and failure to address it adequately
q Lack of organization and coordination within the Roma community of NGOs sometimes creates difficulties in the dialogue with the government
q The tendency of state officials to exaggerate the communication problems with the Roma communities and to under-estimate Roma NGOs and Roma leaders' expertise.
q Imprecise formulations or non-commitments (e.g. "consider the possibility" "create conditions for" "study the opportunity")
q Mixing measures of very general nature with small time initiatives to make the strategies look more impressive
q Unstructured approach / missing areas
q Lack of budgetary allocations
q Disproportionate/unrealistic reliance on municipal funding
q Disproportionate reliance on foreign funds
q Lack of deadlines - or unrealistic deadlines
q Implementing mechanism not articulated at local level
q Lack of transparency in the implementation, monitoring and reporting system
q Lack of mechanisms for the involvement of NGOs
q Lack of a depolitization of Roma question and of the establishment of an agreement between political forces to support Roma strategies.
q Failure to include in the strategy measures aimed to educate, change mentalities and combat the prejudices existing in the administration, professional groups and public.
q Absence of involvement and support of lower administration echelons for the strategy.
q Absence of a mass-media policy to promote the strategy.
Housing for minorities and disadvantaged groups is one of the most difficult areas of intervention, especially in poor countries, where the lack of housing is generalized, financial resources are limited and minorities' issues are particularly sensitive. In the case of Roma, governments are confronted to additional obstacles: the majority resents housing projects for Roma blaming Roma themselves for their disastrous living conditions, right wing politicians obtain public support by criticizing governmental measures in the favor of Roma, civil servants of housing departments are often silently undermining the efforts of the ministers, mayors and local councils' members opt for solutions that exclude or marginalize Roma because they fear electoral drawbacks, mass media reports create and feed the image of Roma neighbors and neighborhoods as threats for the health or safety of the non-Roma, strengthening the desire of the majority to isolate and exclude Roma as much as possible.
Further, there is no reliable information on Roma housing situation, Roma housing needs and Roma access to housing. As a rule, statistics on housing are scarce, unreliable and difficult to interpret. Governments do not have an articulated position on race statistics or plainly reject claiming that data protection legislation prohibits processing of ethnic sensitive data. Roma organizations often oppose such statistics out of fear of misuse.
Housing rights and equal access to housing are constitutionally protected but not sufficiently articulated by national legislations. The society as a whole, but often also politicians and housing professionals have a limited understanding of equal access and non-discrimination principles. In many Central and East European countries the governments do not have institutional tools able to ensure a systematic control of the legal developments, practices and policies in the housing field. Existing complains mechanism at municipal or ministerial level, sections within Ombudsman's offices, or parliamentarian petition committees do not have the mandate, funding, human resources or expertise to undertake such tasks. Finally, existing participative mechanisms are, as a rule not sufficiently developed to permit Romani communities to shape governmental policies towards Roma, to articulate their own needs and priorities and to decide which are the most adequate solutions (maybe with the notable exception of Romania where Roma experts have decisively contributed to the elaboration of the strategy.)
A list of substantive issues to be addressed by Roma housing strategies is presented bellow. The list might be, obviously, developed or reduced, according to specific situation in each country.
§ Basic research on Roma housing situation and identification of needs:
· monitoring of Roma settlements in rural areas
· monitoring of Roma housing conditions in the cities, in only-Roma inhabited areas, or areas with very high concentration of Roma, including squaterred and abandoned buildings
· monitoring living condition in shelters and sub-standard housing offered by the administration to "non-adaptable" or "non-payers"
· review housing policies at national and local level
· examine other governments' programs on housing for minorities and good practices in this field
§ Housing rights - discrimination
· Review all housing legislation with a focus on legality of dwellings, residence provisions, access to land, access to municipal housing, and evictions. Examine the compatibility of the existing provision with international law provisions on housing and anti-discrimination standards, particularly the EU Directive on Racial Discrimination (EC/2000/43).
· Legislative measures to eliminate all provisions which have direct or indirect discriminatory effect on Roma communities.
· Analysis of practices and measures to prohibit, eradicate and eliminate the consequences of discriminatory practices of housing departments
· Incorporate in the legislation definition of racial segregation, prohibition and sanctions against those who practice it
· Adoption of social housing legislation
· Articulation of housing rights in line with international standards
· Articulation of the concept of de facto homelessness in case of unbearable housing conditions
· Systematic review of evictions carried out in recent years.
· Prejudice against Roma within the housing administration at national and local level and adopt adequate measures to combat it.
· Effective remedies for violations of housing rights, control and complaint mechanisms, access to free or low-cost legal assistance for indigent victims of violation of housing rights
§ Legalization of Romani housing
§ Residence registration
§ Equal access of Roma to land
§ Roma access to municipal flats
§ De-segregation of Roma housing (with due respect for the wishes of the community)
§ Infrastructure in Roma settlements and Roma neighborhoods
§ Municipal services in Roma neighborhoods (transportation, public lightening, communications, garbage collection)
§ Additional support for housing (e.g. housing allowances, low-cost construction materials, access to credit, interest-free loans for people who wish to improve their own housing conditions)
§ Mobility patterns of Roma and associated housing needs.
§ Harassment of Roma by private owners, intrusions in Romani houses and destruction of Romani property by police and private gangs.
§ Monitoring systems to identify, document and report on violations of housing rights (e.g. independent agency, departments within ministries, sections of specialized anti-discrimination bodies).
§ Reporting mechanism for the implementation of housing strategy (and wide public access to implementation reports).
§ Education of politicians, public functionaries on Roma housing problems.
§ Sensibilization of mass media (e.g. training for journalists on housing rights, discrimination on housing and Roma housing issues, organizing documentation trips, supporting documentary making programs, initiating awards for the best reporting on social issues, etc.)
Challenges: Governments in the region struggle with the lack of human rights culture of post-communist societies, widespread poverty and delicate ethnic balances. In this context, their housing strategies might be hampered by the following factors:
§ There is a generally poor understanding of housing rights and their entitlements (Legal security of tenure, availability of services, materials and infrastructure, affordability, habitability, accessibility, location, cultural adequacy) and of the correlative obligations of the state, by all key actors - state representatives, legal profession, and NGOs.
§ Clarification of the legal status and legalization of Roma dwellings rise legal and practical problems far beyond Roma housing (e.g. land ownership rights, construction authorizations, respect for safety and architectural norms, modification of the plans of urbanization plans, high administrative fees, ensuring equal treatment to all other unlawfully built houses, etc.)
§ The existence of discrimination, ghettoisation and racial segregation practices is not recognized as such, which results in misrepresentation of the problems and inadequate solutions.
§ Failure to articulate basic principles of housing strategies, to identify the target groups and to establish emergencies, short, medium and long term priorities.
§ Failure to take into consideration the historic development of Roma housing, the roots of the actual problems and the role played by authorities in establishing the locations where Roma have settled, in carrying on segregation and desegregation/assimilation programs, in displacing communities and, during the last ten years, in conducting systematic evictions and building Roma ghettoes.
§ Insufficient information on the factors which have undermined the ability of Roma to preserve their own housing (e.g. massive unemployment, deregulation of rents, privatization and disappearance or changes in the eligibility requirements of housing allowances, changes in social protection policies).
§ Reluctance to carry on studies on anti-Roma prejudice within the administration.
§ Blaming the victim: low standard housing for Roma -- became a generally accepted policy, on the presumption that Roma are guilty for all housing problems they have, that they are "used with less" and "resist better to adversities" they can live in overcrowded spaces because they like large families.
§ Prefer legislative changes enabling speedy evictions without court orders to policy initiatives of to combat the risk of exclusion from housing.
§ Find justifications for evictions, segregation and ghettoisation policies in the pressure exercised by the non-Roma communities and neighbors' concerns instead of articulating strategies to adequately address the concerns of the majority.
§ Difficulties in incorporating the Roma housing strategy in the national housing strategy.
§ Failure to secure political consensus over Roma housing issues to ensure continuity and support for legislative and budgetary measures.
§ Failure to obtain the support of elected representatives at local levels (mayors and city council members).
§ Over-reliance on foreign funds for the implementation of housing strategies.
§ Transferring financial burdens of housing programs on municipalities which are not able or not willing to assume them.
Non-exhaustive check list of substantive issues to be addressed by Roma health strategy:
§ Gathering data on Roma health as a pre-condition for further developing action plans
o literature reviews
o status of health – especially on non-contagious diseases (e.g. cardio vascular and cancer)
o determinants of health110
o access to health care services
§ Anti-discrimination measures in the health field
o Critical analysis of health care and health insurance regulations and legislation measures aimed to eliminate disparate impact provisions
o Analysis of practices within the health care system
o Analysis of Roma health status and Roma access to health as compared to the majority of the population and other minorities
o Analysis of Roma access to health information
o Regular monitoring and reporting on Roma health, and equality of access to health care
o Prohibition of racial segregation practices within the health care system
o Incorporation of specific health related provision within specific anti-discrimination legislation
§ Institutional building – increased participation of Roma in the health system
§ Affirmative action – Roma students access to health education system at all levels (health care personal, nurses, doctors).
§ Cultural competence training for health professionals
§ Preventing/screening procedures
§ Vaccination campaigns - failure to vaccinate, false reporting (vaccination on paper)
§ Special attention to gender specific components - Roma women health issues - avoiding intrusive family planning policies
§ Paying due attention (but avoiding over-emphasis) on infectious diseases
§ Mental health - with focus on the effects of social exclusion and long-term unemployment
§ Disabilities - with a focus over-representation of certain affections, over-representation of Romani children in special institutions and Roma access to disability programs.
§ Specific measures aimed to address the determinants of health (housing conditions, safe drinking water, environmental factors etc.)
§ Culturally sensitive measures aimed to improve Roma access to health information
§ Policies aimed to encourage and stimulate the involvement of health professional on providing health services to Roma communities
§ Due consideration to the diversity within the Roma community
§ Addressing the issue of mobility patterns in the sphere of health and access to health
§ Advancing integrated approaches to Romani health by addressing education, employment, housing, municipal services and social assistance issues.
§ There is a generally poor understanding of the content of health rights111 and of the correlative obligations of the state, by all key actors - state representatives, legal profession, and NGOs.
§ Information on the health status of various ethnic groups is scarce. Romani associations are rather hesitant in supporting ethnically sensitive medical research.
§ Lack of financial resources affects the quality of care of the entire population, making difficult to defend measures aimed to improve the access to health care of a specific group.
§ Unreliable data and false reporting (e.g. the so called vaccinations on paper) create difficulties in assessing the real dimensions of Roma health problems.
§ Health care personnel is generally underpaid and often culturally insensitive, which results a tendency to under-serve the poor, and the Roma.
§ Health issues are rather low on the agenda of Roma and human rights organizations, which slows down the process of articulation of health needs of the community.
Social Assistance
The debate over the obstacles encountered by Roma in accessing social welfare programs goes far beyond receiving social benefits. It is critical for their capacity to preserve housing, for the ability to obtain adequate health care and for children' chances to receive education. It is vital for slowing down social exclusion processes.
In the last decade Roma in Central and East European countries have been subjected to one or more forms of exclusion, until the very limit of survival. They have been excluded from citizenship and residence rights, transformed into economic outcastes by being systematical fired and almost never re-employed, and subjected to devastating educational exclusion techniques. In the recent years, as a result of social protection and health system reforms they are also excluded from safety nets. The combination between all these forms of exclusion have resulted in evictions, excessive debts, sickness, and despair. In some places in the post-communist countries (e.g. in Eastern Slovakia) there are communities whose contact with the rest of the society ceased to exist or has been reduced to almost nothing.
State authorities frequently mention the poverty of the countries and/or the generosity of social welfare systems. The rapid increase of the Roma population is presented as a threat to the stability of the social assistance schemes. Mass media has constructed an image of rich Roma who are systematically abusing the system. Statistics showing that in each and every one of the Central and East European countries Roma are the poorest of the poor and that majority of them live under the subsistence level are mocked or ignored. Widespread prejudice passed from the sentence "many Roma are indigent" to "many Roma live on social benefits" just to conclude: "if so many Roma live on benefits, that means that they are abusing the system."
On the other hand, some voices of the Roma elite, in an understandable attempt to defend the dignity of the long-time unemployed, tried to downplay social protection topics and to place emphasis on integration in the labor market strategies. They criticized some social policies in the region, especially the Czech and the Slovak ones -- as "patronizing," passive, creating dependence and de-motivating Roma to work. The message was "Roma do not want social assistance, they want to work" a message intended to oppose the majority's idea that Roma prefer to be unemployed. Under these circumstances, the debate on social protection have often missed the point, wasting time with futile questions such as whether Roma like or not to work - (as if this was an ethnic feature) whether they want social benefits or jobs (as if there was a generalized answer at group level). Truly important topics such as the impact of social protection reforms, policy changes, newly adopted legislation on Roma lives, or their equal access to the resources offered by the system have are overlooked.
The proposed list of substantive issues on social protection is an attempt to re-focus the debate on access to social protection and non-discrimination, while covering other important areas such as legal status, Romani children rights and gender issues.
Substantive issues:
§ Review of social protection legislation and elimination of all legal provision with direct or indirect discriminatory effect
§ Research on the extent and severity of Roma poverty
§ Assessment of the impact of the loss of employment and social protection system reforms on Romani families
§ Equal access of Roma claimants to social benefits
§ Legal status of claimants and their access to social protection (e.g. refugees, asylum seekers, undocumented, stateless, displaced persons, returnees)
§ Residence issues and their relevance for access to social benefits (de facto and de jure residence, homelessness)
§ Children allowances, the situation of children from large families
§ Gender issues, social protection of single mothers
§ Prejudice against Roma within social welfare personnel
§ Complaints mechanisms, legality control and effective remedies in case of violation of rights.
§ Institutional building - increasing participation of Roma in the social protection system
§ Access of Roma pupils to social work studies (affirmative action in social work education)
§ Mass media strategy to educate both the journalists and the public on issues related to the social protection of vulnerable groups.
§ Financial pressure on the social welfare system
§ Social and political pressure to reduce or cut Roma benefits
§ Pressure to reform social protection systems
§ Insufficient number of social workers in general and lack of Romani social workers
§ Wide discretionary powers granted by law to local offices, which makes the system difficult to control
1 Law on Croatian citizenship, NN 53/1991.
2 Law on amendments of law on Croatian citizenship, NN 28/1992.
3 Decision of the Constitutional Court of the Republic of Croatia, UI - 206/92 from December 8, 1993.
4 Instructions of the form and procedure of keeping records on Croatian citizenship, NN 54/1991 and 3/1992.
5 Instructions on Impediments for revocation of Croatian citizenship regarding military obligations, NN 2/1992.
6 In file with the consultants, documents provided by the Ministry of Interior.
7 "Organization of Education" by Stjepan Ovčar in Medjimurie – Journal of Social and Cultural Issues, No. 17, 1990.
8 "Croatian Roma at the Threshold of the Third Millennium - research on the socio-economic position of Roma in the Zagreb Roma settlements Kozari Put and Struge", by Branka Lovrić, student of the University of Zagreb, Law Faculty, Department for Social Work, mentors professor Ivan Magdalenić and Nino Žganec, Zagreb, April 2000.
9 Source: the State Bureau of Statistics – Census data 1991.
10 "Croatian Roma at the Threshold of the Third Millennium - research on the socio-economic position of Roma in the Zagreb Roma settlements Kozari Put and Struge", by Branka Lovrić, student of the University of Zagreb, Law Faculty, Department for Social Work, mentors professor Ivan Magdalenić and Nino Žganec, Zagreb, April 2000.
11 Croatian Critical Law Review, Croatian Law Center, Zagreb, Volume 3, nr. 1-2- (1998), p.133.
12 "Acquiring citizenship and the practice of the Administrative Court of the Republic of Croatia" by Ivan Šprajc in reports from the conference "Croatian judiciary: lessons and perspectives" organized in October 2001 by the Croatian Helsinki Committee and the Netherlands Helsinki Committee and "Intervention of the Constitutional Court in the Practice of the Acquiring Croatian Citizenship by Naturalization", Informator Law Journal, nr. 4922, 9 May 2001, pp. 7-8.
13 Constitutional Court Decision nr. U-III-42071996 of 30 April 1997.
14 The Croatian family law [NN 162/98] recognizes as valid both marriages contracted in civil ceremonies and those contracted in religious ceremonies (art 6) -- the latter ones only if contracted before the representative of the religious community with which the Republic of Croatia has regulated legal relations (art.8). Up to date, Croatia concluded an agreement only with the Vatican, which makes the catholic marriage the only type of marriage with the same juridical consequences as the civil marriage (catholic marriage is regulated by art. 13. of the Agreement between Holy See and the Republic of Croatia on legal issues of December 18,1996 - NNMU 3/97 and 8/97).
15 Law on Solving the Conflict of Laws with the Regulations of other Countries in Certain Relations (NN43/82)
16 "2000 Annual Report", Office of the Ombudsman, Republic of Croatia, Zagreb, March 2001, p. 14.
17 A 1998 study carried out in 1998 in 5 Romani settlements by the Institute for Social Sciences Ivo Pilar indicates that 33% of the families in these settlements lived in common law marriages "Social Researches" - Journal for General Social Issues, nr. 46-47/2000, p. 302. According to a 2000 study in two Romani settlements near Zagreb, Kozari Put and Struge, out of 254 adults, as much as 48,36% live in common law marriages. See: "Croatian Roma at the Threshold of the Third Millennium - research on the socio-economic position of Roma in the Zagreb Roma settlements Kozari Put and Struge", by Branka Lovrić, student of the University of Zagreb, Law Faculty, Department for Social Work, mentors professor Ivan Magdalenić and Nino Žganec, Zagreb, April 2000.
18 It is to be noted that, under the Section 59(4) of the New Constitutional Court Law, a complainant whose rights have been "grossly violated by the fact that no decision has been issued within a reasonable time" and who risks "serious and irreparable consequences" may file directly a constitutional complaint, without exhausting lower remedies. However, the existence of this provision does not necessarily mean that the complainant obliged to wait for years the determination of his legal status has access to an effective remedy.
19 Administrative law provisions of waving fee obligations for indigent applicants apply only to fees established by Croatian authorities, not to fees established by other countries (e.g. citizenship release fees).
20 As of January 2002. Bosnia and FRY were considering lowering these fees.
21 Article 13(1), European Convention on Nationality.
22 Explanatory Report on the European Convention on Nationality, paragraph 91.
23 First implementation rules, issued by the Ministry of Interior in 1991 have been cancelled shortly after being adopted. During 9 years (between 1992 and 2001) the law has been implemented by the ministry without any written guidelines or implementation rules or instruction. Only recently the ministry elaborated implementation instructions, but they cover only a limited number of issues.
24 Council of Europe - Committee of Ministers: Recommendation No. R(80)2 concerning the exercise of discretionary powers by administrative authorities: "Any general administrative guidelines which govern the exercise of a discretionary power are: (i)made public or (ii)communicated in an appropriate manner and to the extent that is necessary to the person concerned, at his request, be it before or after the taking of the act concerning him."
25 The Universal Declaration of Human Rights, at Article 25, paragraph 1, provides for the right for all to an adequate standard of living, including the right to adequate housing. Article 11, paragraph 1 of the International Covenant on Economic, Social and Cultural Rights States that everyone has the right to an adequate standard of living for himself and his family, including adequate food, clothing and housing and to the continuous improvement of living conditions. The International Convention on the Elimination of All Forms of Racial Discrimination -- Article 5(e)(iii) -- prohibits racial discrimination in the enjoyment of the right to housing. The Convention on the Elimination of All Forms of Discrimination against Women provides for the rights of rural women to adequate housing at Article 14(2)(g) and (h) and Article 16(1)(h). The Convention on the Rights of the Child establishes the positive obligation of States parties to provide material assistance, including housing to children in need (Article 27(1), (2) and (3). The Revised European Social Charter of 1996 provides, in its Article 31, the right to access to adequate housing.).
26 Committee on Economic, Social and Cultural Rights, General Comment No. 4: The right to Adequate housing, UN Doc. E/1992/23, paragraph 7.
27 Tenure takes a variety of forms, including rental (public and private) accommodation, cooperative housing, lease, owner-occupation, emergency housing and informal settlements, including occupation of land or property.
28 Committee on Economic, Social and Cultural Rights, General Comment No. 4: The right to Adequate housing, UN Doc. E/1992/23, paragraph 8(a).
29 E.g. access to safe drinking water, energy for cooking, heating and lighting, sanitation and washing facilities, means of food storage, refuse disposal, site drainage and emergency services. Id., paragraph 8(b).
30 Id., paragraph 8(c).
31 Id., paragraph 8(f).
32 Committee on the Elimination of Racial Discrimination, "General Recommendation 19: Racial Segregation and Apartheid (Article 3)", UN Doc., 18 August 1995.
33 Committee on the Elimination of Racial Discrimination, "General Recommendation 27: Discrimination against Roma", UN Doc., 16 August 2000, paragraph 30.
34 Id., at paragraph 31.
35 The European Commission against racism and Intolerance, "Second Report on Croatia", CRI(2001)34, 3 July 2001, paragraph 1.
36 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, published in the Official Journal of the European Communities, 19 July 2000, L 180/22.
37 Croatian Ministry for Environmental and Physical Planning, "Report for the Round Table on Roma and the National Program for Roma", Registration No: 531-01-02-56, 8 February 2002. [In file with the consultancy].
38 The rest of the neighbourhoods, situated within the limits of localities or at the margins, present the same de facto segregation characteristics: the same Roma only or Roma dominant demographical structure, stigmatization and similar forms of discrimination against their inhabitants.
39 State Party Report, "Third periodic reports of States parties due in 1995: Croatia", 23/05/97, CERD/C/290/Add.1, paragraph 22.
40 State Party Report, "Fifth periodic reports of States parties due in 2000: Croatia", CERD/C/373/Add.1, from 31 May 2001.
41 Interview with a representative of the Council of National Minorities, January 2002, Zagreb. The case has been also reported by the Ombudsman of the Republic of Croatia, Report on the year 2000, March 2001, Zagreb, page 19,[English version].
42 Croatian Helsinki Committee, interview, 30 October 2001.
43 Croatian Ministry for Environmental and Physical Planning, "Report for the Round Table on Roma and the National Program for Roma", Registration No: 531-01-02-56, 8 February 2002. [In file with the consultancy].
44 Roma inhabitants of Kozari Put have formally asked the City of Zagreb to permit the creation of a bus station near the settlement. Interview of the consultants with a representative the Council for National Minorities, January 2002.
45 Municipalities are obliged to organize school buses for primary school pupils if the school is more than 2,5 km away from their house and for secondary school pupils if the school is further than 5 km. See: Art .46 of the Law on Primary School Education No. 59/1990.
46 Ombudsman of the Republic of Croatia, Report on the year 2000, March 2001, Zagreb, page 19,[English version].
47 An environmental racism claim is a claim that members of racial or ethnic minorities suffer from disproportionate exposure to environmental hazards, such as both legal and illegal waste sites, incinerators or other sources of pollution.
48 Ombudsman of the Republic of Croatia, Report on the year 2000, March 2001, Zagreb, pp. 18-19, [English version].
49 According to the "Review of the funds allocated within the framework of the Special Programme for Roma between 1998 and 2001", a document elaborated by the Council for National Minorities, the City of Zagreb received in 1999 funds to clean three Roma settlements, Struga, Kozary Put and Plinarsko Naselie but nothing has been done until 2002.
50 A representative of the Council for National Minorities told the consultant, during an interview in Zagreb, January 2002: "Struga settlement is not for human beings … The County of Zagreb wanted to do more for Struga because is unhealthy, so polluted. Somebody made even an environmental study in Struga, it should be somewhere in the Ministry of Health.
Unfortunately, the City of Zagreb could not offer Roma any other place to go because the zoning plan is not ready … "
51 Ombudsman of the Republic of Croatia, Report on the year 2000, March 2001, Zagreb, page 17, [English version].
52 Pula, Decree on Renting Flats, article 4, Official Gazette of the town of Pula, no. 2/00, page 48.
53 National Program for the Romanies, Draft Outline, Council for National Minorities, 2001.
54 "Review of the funds allocated within the framework of the Special Programme for Roma between 1998 and 2001", a document elaborated by the Council for National Minorities.
55 The consultants could not obtain the two studies mentioned by the government in its 1999 report to the Framework Convention for the Protection of National Minorities, one carried out by the Croatian Institute of Public Health in Zagreb and the other one by UNICEF.
56 Interview carried out by the Consultant at the Ministry of Health in October 2001.
57 Statement made by a Croatian representative of a public health institute during the Albert Schweitzer seminar on "Roma Access to Health" Sofia, 4-6 November 2000.
58 In the amended Constitution (published in NN 41/2001) art. 58. "Everyone shall be guaranteed the right to health protection in accordance with the law."
59 Despite a legislative commitment to the principle of equal access to health services, there is still significant geographic inequity that reflects urban-rural divisions, differential economic development and population density. The government addressed these problems by reducing the population required for a primary health care team and by offering to lease equipment and premises free of charge to private practitioners in an attempt to repopulate and redevelop war-devastated areas (European Observatory on Health Care Systems, 1999).
60 Patients have a free choice of primary care physician or dentist but must obtain a referral for any specialist service.
61 Art. 27 Law on Health Protection NN 1/97.
62 The health institution that breach the equal treatment obligation may be sanctioned with fine between 5000 to 20000 Kuna (625 and 2500 Euros) while the person who represents the institution faces a fine between 2500 and 5000 Kuna (312,5 and 625 Euros). If the doctor responsible is in the private practice, s/he will pay between 5000 to 20000 Kuna (625 and 2500 Euros). (Art. 176 Law on Health Protection NN 1/1997).
63 This obligation is provided by article 1, paragraph 3, the Codex of Medical Ethics and Deontology (CMED), adopted by the Croatian Medical Chamber and Croatian Medical Association on February 24, 1996. Art.1(3) reads: "Doctors will provide medical help equally to everyone regardless of age, gender, race, ethnicity, religious or political belief, social status, respecting human rights and personal dignity." All the members of the Croatian Medical Chamber have the obligation to report to committee for medical ethics any violation of the Codex (art. 9, paragraph 3.).
64 Information provided to the consultants by a representative of the Croatian Medical Chamber, with disciplinary procedures attributions, Zagreb, November 13, 2001.
65 Rules on Rights and Responsibilities of the Members of the Croatian Medical Chamber, entered into force on December 19, 2000, which regulate rights and obligations of doctors, sanctions and disciplinary procedures.
66 In April 99, S.S., a [then] 36 year-old Romani man from Zagreb, was taken with an ambulance to the "KB Merkur" hospital, after being attacked by several masked persons. Emergency doctors examined him, declared that there is nothing to worry about, give him a painkiller and send him home. During the night Mr. Secic was in terrible pain and urinated blood. The next morning he went back to the same hospital, where the nurse told him that he is boring, that she was on duty whole night and that she is tired, that Roma always panic for small things. She gave him another pain killer and send him home once more. Later that day S.S., who continued to be in pain, went to a traumatology clinic "Klinika za traumatologiju Zagreb" where he was examined and immediately hospitalized. According to the medical file, he had two broken ribs, and needed five days of hospitalization The incident, including the hospital failure to carry out a proper examination, was reported by the press (Jutarnji list, May 14, 1999). S.S. filed a criminal complaint, but the police never identified the attackers.
67 After she was physically attacked by a police officer, a Romani woman from Zagreb suffered racial insults from the ambulance medical team that arrived on the spot to offer assistance, according to the Croatian national daily Vecernji list of June 17, 2001.
68 I. Zoon, Meeting Report Meeting with Government Representatives of the Republic of Croatia on the National Programme for Roma Zagreb, 8-9 June 2001.
69 See, for example, ERRC reports on police brutality in 2001, "Snapshots from around Europe: Roma rights violations by authorities in Croatia" in Roma Rights, no 2-3, 2001.
70 In Bohumek case, for example, a health center doctor, M.L., refused to issue a medical certificate to a victim of police brutality. The next day, the victim, a Croatian citizen married with a Roma and living in the Roma community, went to his usual health center where it was established that he had dry blood in nose, fresh blood in ear, open injuries on elbow and several hematoms on the head. During the civil procedure against police, M.L declared that he refused to issue a certificate to the victim, firstly because he "did not see any injury" and because "at that particular moment, he did not have any stamp". (Pn. 3319/93, hearing from 15.06.1994, Zagreb Municipal Court. In the police brutality case the first instance court ruled in Bohumek's favor - the appeal is pending.)
71 Doctors have an obligation to report serious injuries (art. 99 Criminal code and art. 171 Criminal Procedure Code) to the police or to the public attorney. Failure to do so is a criminal offence (art.300 para 2 Criminal Code).
72 Law on health insurance, NN 94/2001, art. 17.
73 Rules on Standards and Norms of Rights Based on the Obligatory Health Insurance for the Year 2001 (NN 127/00), art.4.p.1/1.2.
74 The World Bank, Croatia - Economic Vulnerability and Welfare Study, Report No. 22079-HR, April 18, 2001, p. 43.
75 Interview with local authorities in Medjimurie, 1 November 2001.
76 Women, if insured, do not pay participation during pregnancy [art 17 Law on Health Insurance 94/2001].
77 E.g. Roma in Slavonski Brod told the consultants that non-insured women from their settlement do not want to go to the hospital to give birth after one of their neighbors was obliged to pay 6000 Kuna in an emergency case for staying two days in the hospital after birth.
78 The World Bank, Croatia - Economic Vulnerability and Welfare Study, Report No. 22079-HR, April 18, 2001, p. 43.
79 Emergency cases are considered those cases that are posing an immediate threat on the life or health of the patient [art 29 of the Rules on rights, requirements and implementation of the health insurance norms , no. 43/1999 issued by the Croatian Bureau for Health Insurance].
80 At national level there is a legislative gap: there is no criteria other than "an immediate threat to the life or health of the patient", there are no regulations on the obligation to send an ambulance when the police calls and no regulations on registration, storing and access to emergency calls. However, doctors cannot refuse emergency care to the patient whose life is in danger even when the patient [Rules on Rights and Responsibilities of the Members of the Croatian Medical Chamber, art.2. para.2. and art.20.para.3.]
81 Organization of the emergency care services is within the competence of the county. [article 8 of the law on health care] Emergency care services and emergency transportation shall be always secured and accessible to the population [to everybody] (art 13) They are organized according to the demographic structure of the population, epidemiological situation, the needs of the population and the financial resources. [Rules on standards and normative of rights deriving from the obligatory health insurance for 2001].
82 Ministry of Health's instructions on conditions, organizations and procedures for the organization of emergency services on public roads in the Republic of Croatia (NN 33/1991). Definitions. Beneficiaries of the emergency services on public roads are "the angered and the suddenly sick participants in the traffic" – regardless their legal status, existence of health insurance.
83 Foreigners are persons without Croatian citizenship, legally on the Croatian territory with residence (temporary, prolonged or permanent), a business visa or invited by a state body. Stateless (regardless the nature of their stay on the Croatian territory), refugees and persons awaiting for refugee status, minor foreigners found on the territory of Croatia without parental care and persons whose expulsion is not possible due to their severe health problems are also considered "foreigners" under this law. Persons who are illegally on the Croat territory and undocumented persons (de facto stateless, persons who do not have valid identification documents, and, although technically have a citizenship, are not able to prove it) are not considered "foreigners" in the sense of this law. See: Law on Health Protection of Foreigners in the Republic of Croatia.
84 And there is a general obligation of the foreigners to have health insurance. Art. 2 of the Law on the Health Protection of the Foreigners.
85 Art. 3 of the Law on the Health Protection of the Foreigners.
86 Statement of Ms. N.K. , director of the Cakovec health centre, made in the County Court in Varaždin, 28 March 2001, file Kio. 62/ 01-20.
87 Statement of mr. X, operator in Cakovec health centre, made in the County Court in Varaždin, 28 March 2001, file Kio. 62/ 01-20.
88 Meeting with the consultant, 2001.
89 Report No 22079-HR, The World Bank, April 2001.
90 Article 15(1) of the Law on Social Care - "Social benefit can be approved to single person or family that do not have means for support and whose members are not able to obtain it with their work or from their property or in another way." (n.a. Registration with the unemployment office is considered evidence of inability to work.)
91 Article 149(2) of the Law on Social Care establishes as a general rule the obligation of the social assistance centers to issue written decisions. Only in emergency cases the decision may be oral, but even then the center must issue a written decision within 8 days (art. 150).
92 There is a procedural institution of collective determination of rights under the administrative procedure (Art 127 of the Law on administrative procedure) that permits to conduct one procedure for more applicants if applications are based on the same or similar factual basis and the same legal basis. However, even in this case, the determination of rights has an individual character, each applicant has the right to be named in the decision, and to receive personally a reasoned decision. (Art 212 of the law on administrative procedure)
93 The law establishes the assistance for maintenance as a cash transfer that might be distributed in kind only under exceptional circumstances. The law provides for three exceptions from the cash rule: (1) the paternalist exception - when the center for social assistance decides that is it better for the beneficiary to receive payment -- or part of it -- in kind and not in cash; (2) the clear cut exception - when the center establishes that the beneficiary does not use the cash to cover basic needs (3) and a presumption based exception - when the center considers that there is highly probable that the beneficiary will not use the cash for basic needs.
94 See: Živko Jurcevic, "Social Care Rights in the Republic of Croatia and Welfare State" published as appendix ("Small pages") to law journal "Informator" nr. 4940-4941, Zagreb, July 11th and 14th, 2001: "It should be noted that some of those rights can be approved
in kind, when there are special circumstances. Practice shows that it is in fact exception since mentioned rights are rarely realized in kind."
95 Indeed, a social worker from the region stated in 1997: "Of course that [Roma] they are not satisfied with such a distribution of social benefit. They would like to have the whole amount in cash, but the law allows us to distribute the money in a way we consider to be in the best interest for Roma." See: Round table "Roma in Croatia Today", June 26-27, 1997, collection published by Center for direct protection of human rights, Zagreb, 1998, page 89-92
96 Telephone conversation of one of the consultant with the Centre for Social Care in Cakovec, October 16, 2001, 10.30 a.m. "All Roma in Medjimurje county receive social benefit (assistance for maintenance) -65% in kind and 35% in cash. Only few, those who have some income, receive the whole amount of benefit in kind - food. … There is no decision about it, is an administrative practice established years ago, in any case before 1997, based on art. 28 of the Law on Social Care."
97 "Social assistance encompasses a range of benefits and services which guarantee the minimum level of subsistence to people in need, based on a test of resources. It has become a more important safety net in a period of high unemployment. Particularly in transition countries, it is a decentralised and incomplete net, which excludes some people as a matter of principle, and some in practice, due to shortage of resources. The fact that in many countries, much of the benefit is in kind rather than cash, is a further reduction in autonomy, and may be a threat to human dignity." See: Council of Europe, The Human Dignity and Social Exclusion Project - Research, Chapter 4, Exclusion from social protection.
98 Art 203(3) of the Law on Administrative Procedure: administrative decisions must be reasoned. Exception from this rule make only decisions of minor significance, decisions in favour of the applicant, where there is no public interest and no interest of a third person involved. Obviously, a social assistance office decision on the nature of a social benefit (in kind or in cash) is of major significance for the applicant and his family and needs to be reasoned.
99 Article 1, Law on children allowance NN 94/2001, implemented since January 2002.
100 Id., Art 9(2) and Except if stipulated differently by international agreements.
101 Id., Article 10: there is a right to child allowance up to child's 15 year of age. If the child is older than 15 there is a right to child allowance if the child goes to school (up to child's 19 years of age maximum, regarding the age and school attention children with illness or disability are exceptions). Therefore, education (school attendance) is a requirement only if the child is older than 15.
102 Id., art. 7 and art. 9(3).
103 See: Meeting Report and Preliminary Recommendations, National Conference of Croatian Roma Organizations on the National Strategy for Roma, Zagreb, 29-30 July 2001.
104 In the explanatory report of the law prepared by the government (Government of the Republic of Croatia: Legislative proposal: Law on Child Allowance No 326 from September 6, 2001). It is worth examining whether instead of encouraging school attendance the law might have the perverse effect of stimulating tens' pregnancy. Let's take, for example, a family in deep poverty, where parents are quasi-illiterate and firmly convinced that the role of the woman is not to learn, but to take care of children. When girls turns fifteen, or even earlier they drop out of school. Theoretically they might be employed, but in practice, their employment chances are null. They do not have right to child allowance and the family lose an important source of income. The logical way out is to have babies, as soon as possible, to replace the lost income. Instead of encouraging education, the law might result in earlier pregnancies.
105 A Romani man in Slavonski Brod told the consultants: "Money for books arrive late - with two months delay after the beginning of the school year and then it is too late because all books in bookshops have already been sold and there is no way to find them."
106 The political criteria for accession to be met by the candidate countries, as laid down by the Copenhagen European Council in June 1993, stipulate that these countries must have achieved "stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities." Slovakia, Romania, Bulgaria Czech Republic and Hungary must pay special attention to improving the situation of Roma.
107 Romania was the last country to adopt such a strategy, on April 2001.
108 See "The Strategy of the Romanian Government for the Improving of the Situation of Roma," Bucharest, 2001.
109 See: Explanatory Report to the Strategy of the Government of the Slovak Republic for the Solution of the Problems of the Roma National Minority and the Set of Measures for Its Implementation (Stage I) 27 September 1999.
110 Food and nutrition, housing, access to safe and potable water and sanitation, safe and healthy working conditions, and a health environment.
111 The four components of the right to the highest attainable standard of health as defined by the relevant UN committee: (1)Availability, (2) Accessibility with its four elements: non-discrimination, physical accessibility, affordability and access to information, (3) Acceptability and (4) Quality. See: CESCR: "General Comment 14: The right to the highest attainable standard of health," 04/07/2000, E/C.12/2000/4.