Addressing systemic obstacles to restitution in Kosovo: Legal aid as a fact finding tool

by Massimo Moratti

In post conflict settings in which internally displaced persons (IDPs) seek to regain possession of their properties, the provision of legal aid becomes an essential service for the protection of their rights in the place of origin. The importance of such services is even greater when significant barriers arise between the place of origin of the IDPs and the place where they are actually displaced. These barriers may not only consist in the physical distance between the two places, but also in the fact that the place of origin of IDPs (in this case, Kosovo), and the place of displacement of IDPs (Serbia) hold diametrically opposed views on the future of Kosovo and are evolving into two separate legal systems with little or no institutional communication. Phone lines, mail and official communication are interrupted and, pending reciprocal recognition or an overall settlement of the issue, their resumption cannot be envisaged in the immediate future.

For these reasons, the Delegation of the European Union to Serbia has partnered with the Serbian authorities to provide legal aid services to IDPs from Kosovo as well as refugees from Bosnia and Croatia through Instrument for Pre-Accession Assistance (IPA) funding. The provision of legal aid includes information, legal assistance as well as in-court representation. Such projects have been ongoing for the last four years: while the implementing partners have changed in the course of time, the caseload has transferred from project to project in order to ensure continuity in the provision of service.

The project relies on a network of three offices in Serbia, and two in Kosovo (Kosovska Mitrovica and Gracanica). Project lawyers represent IDPs before the courts of Kosovo, travelling from Belgrade, Kraljevo or Kosovska Mitrovica to all municipalities of Kosovo and litigating cases before the municipal or district courts, sometimes even in front of EULEX judges. In addition, the office in Gracanica functions as a trait d’union between the legal systems: legal notifications coming through the mail system of Kosovo and addressed to the project’s clients are redirected to Serbia, through the mail system of Serbia, which is operational in Gracanica. A public information campaign on the main media outlets of Serbia proper has provided information to the IDP population about the services provided by the project and served to raise broader public attention to the issue of IDPs from Kosovo.

It is now almost 13 years since the NATO bombing campaign in Serbia and Kosovo, which set the stage for the UNSC Resolution 1244 establishing a temporary UN administration in Kosovo and the controversial unilateral declaration of independence (UDI) of Kosovo in 2008. In spite of the guarantees in Resolution 1244 and the ensuing  Ahtisaari Plan that were incorporated into the UDI, the return of IDPs has never really taken off. Nor has the protection of the property rights of IDPs and minorities reached an acceptable level despite the implementation of sophisticated mass claims mechanisms such as the Housing and Property Directorate and Claims Commission (HPD/HPCC) and its successor the Kosovo Property Agency and Claims Commission (KPA/KPCC).

In this context, the legal aid project receives the complaints from IDPs on one side of the administrative line/border separating Serbia proper from Kosovo, seeks as much as possible to bridge the gap between the two systems and at the same time advocates to keep the unsolved issues of IDPs and their property problems on the agenda of international actors. However, there is one additional important but often overlooked function that a legal aid program can perform. It can serve as a fact finding tool in contexts, like that in Serbia and Kosovo, where facts are often fiercely disputed by the parties. Indeed, by compiling information and legal documents provided by its clients, the project gathers concrete evidence of trends, practices and problems faced by IDPs  before administrative and judicial bodies in Kosovo. This function can be of great assistance to those organisations charged with ”supervising the independence” of Kosovo that are based exclusively in Kosovo and have little or no access to IDPs currently displaced in Serbia.

Having in mind this function, the project has started compiling reports and making them available online. These reports are based on information collected in the field as well as directly from project clients. So far three reports have been published on the website. The first report summarizes the first year of activities of the project and provides an overview of the type of cases that the project is currently focusing on. The second report covers specific human rights issues, with an emphasis on security incidents and the “responsibility to protect” incumbent upon the authorities in Kosovo. The third report provides an overview of the legal framework existing in Kosovo and outlines a number of obstacles to return that IDPs face in their daily life. In addition, a short online presentation highlights some of the most common problems faced by IDPs, as encountered by the project, when addressing courts in Kosovo. This presentation anticipates some of the contents of a more comprehensive forthcoming report on the access to justice for IDPs. Finally the project is developing legal resource pages with links to domestic and international instruments applicable in the field of property rights in Kosovo.

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2 responses to “Addressing systemic obstacles to restitution in Kosovo: Legal aid as a fact finding tool

  1. Pingback: Back to the Balkans – upcoming guest postings on restitution issues in Bosnia, Serbia and Kosovo | TerraNullius

  2. Pingback: Lost in transition – EU financed legal aid programme between Serbia and Kosovo falters | TerraNullius

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