An Officer From Svilajnac And A Fisherman From Rovinj

Can a Serb lose the ownership of his summer house in Rovinj (Croatia)? Or a Croat an estate on Mt. Kopaonik (Serbia)? Does an officer from Svilajnac (Serbia) who has taken Slovenian citizenship, even though his patrimony is in Svilajnac, have the right to that which he already owns, and secondly, can he inherit property after his father's death? What if a fisherman from Rovinj signed a contract for the sale of a boat to a Belgrader, the Belgrader gave the down payment, but because war broke out, neither side was able to go ahead with the rest of the obligations, even though they might have wished to (or not)? How can the remaining obligations now be carried out? In what currency will the buyer pay for the boat? These are just some of the puzzles faced by a group of Belgrade School of Law professors (Vesna Rakic-Vodinelic, Gaso Knezevic, Drago Hiber, Vlado Vodinelic, Bora Sunderic, Goran Svilanovic, Slobodan Panov and assistant to the Serbian Justice Minister Zoran Balinovac) in writing the book "The Civic-legal and Social-legal Consequences of the Disintegration of the SFRY and the Creation of the FRY", which is expected in bookshops in about two weeks.

Our collocutors said that their intention had been to debate all the private-legal consequences suffered by individuals from the stand of the disintegration of the country. Ownership problems cropped up immediately, of which the case of the officer from Svilajnac is a typical example. The next question is one of obligation relations, i.e., how did the fact that the country had disintegrated affect the fate of contracts which had been drawn up while the SFRY existed, but weren't carried through (the fisherman from Rovinj). This is followed by a chapter on marriage and marital relations. Can the husband, who is a Serb, get the house in Croatia, after the divorce? Can the child be given to the spouse who is Slovenian? What if the mother has taken the child to Serbia (or father to Slovenia) before the decision on the divorce and the guardianship of the child was made? Professors Hiber and Knezevic underscore that these cases are very frequent in practice. For example, the father, a JNA officer took the child to stay with relatives in Serbia when war broke out in June 1991, while the mother started divorce proceedings in Slovenia. The Slovenian Court ruled, as a temporary measure, that the child be restored to the mother in Slovenia. How will our organs react to this? There are, of course, opposite cases.

Inheritance is an unavoidable question. Who can inherit whom among these new foreigners in these parts and under what conditions (again the story of the officer from Svilajnac). Then there is the problem of pensions, disability pay and all the rights following from pension and social security schemes, calculating years of employment... Who will pay out a pension to someone who has worked for 20 years in Slovenia, but lives in Serbia now? Imagine, said the co-authors of the book, a building engineer who has changed three firms - a Serb firm, a Slovenian and a Macedonia firm, but worked in the branches in Montenegro, Bosnia-Herzegovina and Croatia. How is this unfortunate man going to achieve his rights? These were problems faced by the former SFRY with regard to guest workers, but they were resolved through bilateral agreements.

The story of citizenship is truly strange. If it had cropped up elsewhere, it would have been unbelievable. Here it seems logical. We will carry the whole story as told by Professors Hiber and Knezevic.

Once there existed the citizenship of the SFRY which enabled equal rights in all republics and provinces, and the protection of this same state abroad. At the same time, there were republican citizenships, which were often the result of accident. The group of authors resolved this issue by adopting the basic, legally uncontestable stand that the old SFRY citizenship can end only on the basis of SFRY laws. Then the fact that the former SFRY disintegrated must be established. Here there are two possibilities: continuity or succession. If the matter concerns continuity, then in the FRY we continue with the SFRY's fate in all rights and obligations. There is no zero point. The subject has not changed in the political sense, only in the geographical sense. If we claim that continuity exists, citizenship can cease only on the basis of general or individual laws of the SFRY or the new FRY, which are one and the same thing. The SFRY law does not contain a single basis for the ceasing of citizenship of citizens who had it - regardless of where they might be right now and whose citizenship they hold now. The state of FRY has put into procedure the law on citizenship, but because it has not been adopted, the SFRY law is still valid. In the new draft law there is no principle which regulates the question of the ceasing of SFRY citizenship, just the conditions for acquiring FRY citizenship. All in all, if there is continuity, and the SFRY law, and the draft FRY law do not contain a disposition on the ending of citizenship - then Croatian President Franjo Tudjman is both a citizen of the Republic of Croatia and the SFRY/FRY! In other words, there is no reason why he shouldn't feel at home in Serbia.

The two professors explain this bizarre situation by the law-maker's inability to resolve the question on the ceasing of citizenship, which from the legal point of view must be resolved.

The second point of departure, is of course, that there is no continuity, that FRY is not the only successor of the SFRY without a change of legal identity. Therefore, if there is no continuity, but succession has taken place, then the SFRY does not exist as a state, it has ceased to be, just as when a man dies, and there are a number of inheritors. Therefore, there is no state, no citizenship - there is no one who can adopt the act on the ceasing of citizenship. In short, all those who held a SFRY citizenship - Serbs, Montenegrins, but also all persons who held the citizenship of the other former Yugoslav republics, but did not acquire some new citizenship under laws of the new state - are currently persons without a citizenship, which greatly hinders and complicates the resolving of all above mentioned property, family and other problems. Even in this FRY persons without citizenship are treated as foreigners.

The unravelling of the above mentioned knot depends greatly on the FRY concept of citizenship, which was set down in the Ministry of the Interior. If this law refers above all to Serbs and Montenegrins, then the law-maker has in fact said that there is no continuity, but only succession, but has made a mistake in not resolving the status of SFRY citizens. He has made a mistake in that too, underlined Professors Knezevic and Hiber.

This whole story of citizenship is important because all legal relations mentioned earlier can be treated as the internal relations of the former SFRY, and resolved according to its laws, or as relations with "foreign elements" who are subject to international private law. Accepting the facts and manner in which the former state disintegrated, the authors treated these relations primarily as relations with "foreign elements". The underscoring of various citizenships speaks in favor of this, while the citizenship of the parties in litigation is often the point which will determine which law and court will be competent.

The School of Law professors, did bear in mind, however, that so-called acquired rights must be honored - those which an individual had acquired legally and legitimately before the disintegration of the country, regardless of where he found himself, and what fate with regard to citizenship he met with. The authors believe that these acquired rights are based on the modern body of man's rights, such as the right to property, citizenship, freedom of movement and residence, the protection of privacy, marital and family relations, and most important of all, the right to equality by all people, regardless of sex, nationality, faith. This is why the legal arguments which have been given allow for the protection of all acquired rights. When the first Yugoslavia was created in 1920, an exhaustive regulation was adopted which regulated rights which had existed before and after WW1. Now, with the disappearance of the second Yugoslavia there is no organ which would adopt such a regulation, but all the problematic relations could easily be regulated through bilateral agreements. These agreements would have to protect the acquired rights and allow the citizens of the newly-created states in the territory of the former Yugoslavia to enjoy a special status with regard to other foreigners. Only in this way would it be possible to take into consideration the historical circumstances of many years of living together and the end of the community, circumstances which are not the result of the activities of individuals most affected by the disintegration of the country. The above mentioned bilateral agreements would enable all former Yugoslav citizens to preserve rights acquired in the former SFRY juridical regime. In the event of such an outcome - which is still far from being realized - the painful political disintegration would be less painful for the ordinary citizens who didn't provoke it.