Inna ToropenkoIn post-conflict societies with developing judicial systems, deep distrust permeates between former conflicting parties. Quasi-judicial and administrative bodies are often established to facilitate prompt resolution of conflict-related property claims, as the large number of claims would overburden the regular court system. While such mass claims processes under international law may be established in different forms, their common purpose is the same – to adjudicate a large number of claims and ensure restitution of property rights in an efficient manner, as it was in Kosovo.
Due to the conflict, fear and uncertainty during 1999, a substantial number of people from Kosovo were forced to leave their homes, fleeing both inside and outside Kosovo, including to the European Union and other Western countries. Many of them, especially Kosovo Serbs and Kosovo Roma, still remain in displacement. While statistics show that a considerable number of displaced persons are interested in returning to Kosovo, many of them remain deprived of their property or face serious obstacles to return.
The resolution of conflict-related property claims undoubtedly constitutes a key step towards protecting the rights of the affected communities. It also fosters return and encourages the overall reconciliation process and inter-community relations within the society. Therefore, the effective functioning of such mechanisms has a significant potential impact on the lives of thousands of displaced persons and refugees.
International human rights instruments make particular emphasis on the protection of property rights. Article 17 of the Universal Declaration of Human Rights (UDHR), the first document which sets out fundamental human rights to be universally protected, states that Everyone has the right to own property alone as well as in association with others”, and that “no one shall be arbitrarily deprived of his property.”
Moreover, the right to property has been recognized by the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
Property rights are stipulated only in the First Protocol of the European Convention on Human Rights (ECHR) instead of the Convention itself. However, property rights are among the most frequently violated rights at the international level. In 2018, for instance, 8.59% of all judgments in which the ECHR adjudicated found a violation of the ECHR property right provision, while for the 1959–2018 period, this amounts to 11.59%.
Furthermore, the United Nations Principles on Housing and Property Restitution for Refugees and Displaced Persons (the Pinheiro Principles) represent one of the most crucial international standards outlining the rights of refugees and displaced persons to return to their original homes and lands.
With regards to the Kosovo legal framework pertaining to private property rights, at the end of the 1999 conflict, UNMIK committed to assuring the safe and unimpeded return of all refugees and displaced persons to their homes in Kosovo under Article 11(k) of the UN Security Council Resolution 1244. Further, Article 156 of the Constitution clearly states that: Kosovo shall promote and facilitate the safe and dignified return of refugees and internally displaced persons and assist them in recovering their property and possession.” Moreover, the Kosovo Strategy on Property Rights, approved by the government in 2017, provides a strategic vision for strengthening and securing property rights for all, recognizing in particular “the challenges faced by women, displaced persons and members of non-majority communities to fully exercise in practice their rights to property and proposes specific measures to address these challenges.” In addition, Law on Property and Other Real Rights, is the primary law determining the property rights and obligations while the Law on Immovable Property Tax, and Law on Allocation for Use and Exchange of Municipal Immovable Property, also contain provisions addressing the issue of property rights. Furthermore, the Law on Enforcement Procedure is another key instrument that enables enforcement of the decisions, including property rights related decisions.
Nevertheless, entire families have been living in spaces of about 12 square meters for over a decade, with limited access to running water, electricity and heating fuel, and sharing kitchens and bathrooms. After years of displacement, new generations have little knowledge of their places of origin and have developed ties to their places of displacement.
Problems in relation to IDPs’ properties in Kosovo are numerous; they include indirect discrimination against IDPs, limited restitution of property documentation, illegal occupation and fraudulent transactions. The Kosovo Property Agency is the mass claims mechanism for dealing with property claims and it works in parallel with the courts of Kosovo. It is overburdened with a huge backlog of pending cases and lacks effective capacity to resolve property issues; moreover, many of its decisions remain unenforced.
The process of resolving property issues in Kosovo faces many challenges, hindering returns and the prospects for IDPs to freely choose between returning and other durable solutions. Some of the main challenges are the caseload of unresolved compensation claims (numbering around 22,000), problems with evictions and re-evictions, the lack of an effective response to fraudulent transactions, illegal occupation of agricultural land and other property, and a lack of effective protection for empty reconstructed property. Other issues relate to limited access to courts, including lengthy and expensive proceedings, non-recognition of the Serbian language and non-recognition of Serbian property documentation. In the case of Roma, Ashkali and Egyptian IDPs, there are also challenges regarding the allocation of land for new settlements.
Furthermore, delays in processes for restitution of property rights are also a subject of critique by ECHR case law. For instance, in Hornsby v. Greece it is clearly underlined that the execution of a decision is an integral part of the right to a fair trial, and that “the effective legal remedy should not remain only in paper, but is also to be implemented in practice”.
A large number of IDPs are unable to exercise their right to use their property, or their ownership over it, due to the illegal occupation of properties in Kosovo. The mechanisms for mass restitution of dispossessed property put in place by the international administration in Kosovo and Metohija have proven ineffective in respect of the return of immovable property, which has also had a significant effect on the process of IDP returns. Authorities are often unable to enforce repossession decisions, particularly in cases of reoccupation of property, frustrating the legitimate aspirations of IDPs to regain their properties. Similarly, Serb IDPs face the challenge of repossession of properties as well as a lack of access to rental and compensatory schemes. The lack of compensation schemes often denies IDPs the opportunity to receive indemnification for the loss of their property and, consequently, deprives them of the possibility of securing alternative housing solutions for themselves with their own means. Even the ECHR through its case law (i.e. Doğan and Others) found that states have a duty to provide displaced persons with a secure access to their property, irrespective of whether the state itself was responsible for creating the circumstances that led to displacement or not.
Two of the main challenges in terms of housing rights for Roma, Ashkali and Egyptian returnees are the insufficient allocation of land by municipalities and the lack of recognition of occupancy rights in informal settlements prior to the conflict. Although most Roma, Ashkali and Egyptian IDPs had a private house, their land occupancy rights were never registered and they lack personal documentation and title records for their homes. The vast majority of property less returnees belong to the Roma, Ashkali and Egyptian communities, and they find it increasingly difficult to be included in house reconstruction projects. About 30% of Roma, Ashkali and Egyptian returnees end up in secondary displacement.
IDPs are not exempt from the property taxes that were introduced in 2011 and they are asked to pay them retroactively, even for properties that they do not occupy. There are no mechanisms for challenging the levying of these taxes. Potentially, if the taxes are not paid, IDPs are denied access to copies of their property documents and are prevented from regaining their property.
Furthermore there are procedural difficulties in the legal systems of Kosovo and Serbia that impede access to justice by IDPs. For example, courts do not recognize powers of attorney verified by the authorities in Serbia. For this reason, IDPs are forced to travel to Kosovo in order to get their powers of attorneys verified.
Property issues should be high on the political agenda, including that of the dialogue between Belgrade and Pristina, because of their critical importance to putting in place durable solutions.