by Milica Matijevic and Massimo Moratti
Although more than a decade has passed since the end of hostilities in Kosovo, the process of post-conflict property restitution is far from complete. Apart from the cases still awaiting adjudication before the Kosovo Property Agency (KPA), the mass claims mechanism dedicated to post-conflict property repossession, the local judiciary also deals with a significant number of conflict-related property claims that fall outside of the mandate of the KPA. These cases concern issues crucial to durable solutions for internally displaced persons (IDPs) from Kosovo, such as illegal occupation of property, forged contracts of sale, exchanges under duress, and illegal demolition of property.
The project “Further support to IDPS and Refugees in Serbia” has recently published a report on the difficulties faced by IDPs in accessing the court system in Kosovo and how a number of bureaucratic requirements, apparently of a merely technical nature, in reality have a significant impact on access to justice for IDPs, potentially violating their right to fair trial. The report argues that for these cases to be effectively resolved, the justice system needs to take into account the fact of displacement and the difficult position of IDPs.
According to international fair trial standards, access to justice should be granted for everybody, regardless of one person’s status. In the context of Kosovo this would mean that the local laws and institutions should enable effective access to courts, not only for the resident population but also for those who were displaced as a consequence of conflict (who are nevertheless considered as habitual residents of Kosovo). This obligation becomes even more compelling when IDPs are predominated by the largest single ethnic minority group, as it is the case in Kosovo.
Another important aspect of these property cases is that they imply the application of a specific set of international standards relevant to displacement and property rights such as the UN Guiding Principles on Internal Displacement. When ordinary courts are entrusted with the adjudication of such claims, as is the case in Kosovo, the right of access to court has a direct impact on the possibility of securing the enjoyment of property rights and durable solutions. As a result, this right should be interpreted in the light of the international standards regulating internal displacement, property restitution and remedies for mass human rights violations. In other words, post-conflict property disputes should not be treated in the same way as boundary quarrels between neighbors or disputes of a commercial nature. The human rights dimension of IDPs’ claims should be acknowledged through the whole proceedings.
However, the project’s most recent report concludes that institution-building efforts in Kosovo have not sufficiently addressed the needs of IDPs in relation to their claims nor provided for an effective institutional response.
This is illustrated by analyzing some of the most typical obstacles faced by IDPs in their attempt to access the courts in Kosovo. The first part of the report considers obstacles related to the use of official languages in judicial proceedings, demonstrating that over one of every ten Court decisions were issued only in the Albanian language, reportedly due to the lack of a sufficient number of translators. Particularly given that both the Serbian and Albanian language are official languages in Kosovo, this is a serious failing. The second part of the Report examines laws regulating court fees and the local courts’ practice concerning waiving court fees in IDP property cases. The fact that the law on court fees does not foresee exemptions for IDPs is aggravated by the fact that court registry offices frequently require IDPs, or their legal representatives, to submit proof of payment of court fees along with their lawsuits. If no payment of court fees is submitted, lawsuits are either not accepted or set aside.
In its last part, the Report considers the conditions under which IDPs can, in practice, exercise their right to participate in civil proceedings through an authorized representative. The report finds that in a number of courts in Kosovo, a “verbal instruction” is currently in force, which requires IDPs to issue a power of attorney to their lawyer in front of an official body in Kosovo or in the course of the court proceedings. This requirement, which is not based on any legal provision, forces IDPs and their attorneys to travel hundreds of kilometers in order to have their power of attorneys verified. It is clear that both the financial and social condition of IDPs and the difficulties linked to such trip make access to courts for IDPs much more difficult than for the rest of Kosovo’s residents.
The lack of special provisions taking into account the condition of IDPs and the reality of their displacement results in limitations on the right to access the courts, which eventually affect only one sector of the population, the internally displaced persons. The report sets forth a number of concrete recommendations on how to address these issues. However, it cannot be overlooked that in spite of all the institution building efforts in Kosovo and the involvement of the international community, the issue of IDPs and their special vulnerability is not adequately reflected in the provisions granting access to court for IDPs.