The Kosovo Constitutional Court on displaced persons’ property rights: Can mediation ever count as enforcement?

by Massimo Moratti

Protecting the property rights of displaced persons in post-conflict scenarios presents a number of interesting challenges, not least when internally displaced persons (IDPs) face illegal construction on their land and therefore are forced to seek remedies before the relevant institutions, including mass claims mechanisms.

One of these cases, which is probably not an isolated one, occurred recently in Kosovo, where the Kosovo Property Agency (KPA) is the local mass claim mechanism which inherited the competences of the UNMIK Housing and Property Directorate (HPD).  Established in 2006, the Kosovo Property Agency became an independent agency functioning in accordance with the Constitution of Kosovo after the unilateral declaration of independence.  The mandate of the KPA focuses on claims for land and commercial property, which were not addressed by the UNMIK HPD, since the HPD’s mandate did not cover such claims and the local courts were in theory competent for the receiving them. Since its inception, the KPA has collected claims for over 42,000 properties and decided 96% of those claims.

While the process of issuing decisions is approaching its end, the implementation of such decisions in a number of cases is becoming particularly problematic, especially those cases where a new building has been constructed on claimed properties. It is worth recalling that the KPA was created in 2006 and for the period 1999-2006 there was no claims mechanism to deal with claims for land, nor were courts capable of effectively processing such claims.  In the meantime, “a lot has been built in Kosovo”, to quote one of the officers of the Ombudsman office when contacted about the issue of illegal construction.

The problem the KPA is facing now is how to deal with such cases, where an illegal occupant has built a residential or commercial building on a claimed plot of land. In theory, the KPA could resolve to seize and demolish the building, sell it at an auction, broker a lease agreement or place the building under administration. However, practice has departed significantly from the procedures foreseen in the law. The KPA has instead developed a mediation procedure in order to try to solve these cases without resorting to destruction of buildings. IDPs facing illegal construction are now routinely informed by the KPA about the impossibility of demolish such buildings and offered the possibility for mediation.

This offer of mediation raises a number of issues and leaves a number of questions unanswered.  The case KI187/13 recently brought before the Constitutional Court of Kosovo highlights how the procedure of mediation collides with the provisions of the European Convention on Human Rights (ECHR). In this case, a female IDP who left Kosovo in 1999 and has lived in destitute conditions since sought repossession of a large plot of land in an attractive location outside Pristina with significant commercial value. On the same plot, an illegal occupant had built three houses with a swimming pool. The applicant claimed her property in 2006 and a KPA decision in her favor became final and binding in 2013.

The KPA however told the applicant that they could not enforce her claim, because the property had changed since the time she owned it and the KPA lacked the resources to demolish the existing buildings. They offered instead to mediate between her and the illegal occupant. The applicant refused such mediation and instead addressed the Constitutional Court of Kosovo, claiming a violation of her rights to property, to a fair trial and to an effective remedy. The legal aid project we are currently running assisted the applicant in preparing her submission and represented her before the Constitutional Court. The Court on the 16 April 2014 unanimously found that there had been a violation of the applicants’ rights, and ordered the KPA to enforce its decision in favor of the applicant within 3 months.

A few problematic issues came up in the course of the hearing, which are worth reviewing from the point of view of the fairness of the proceedings – and which take on particular relevance given the inequality between the two parties. Unfortunately the KPA failed to give these issues sufficient consideration and thereby failed to avoid incurring the violations.

The first issue is the different positions of the parties. While the illegal occupant was in actual possession of the property and possibly drawing some profit from it, the owner was displaced and in poor material conditions. This unequal departure point dictates that the illegal occupants are effectively rewarded for their efforts to drag enforcement proceedings out as long as possible. In this sense, the imposition of an open-ended mediation process without any guarantee of real enforcement measures in the event of failure provides an indisputable advantage to illegal occupants of property.

The second issue is the timing of the proposed mediation. While efforts by the KPA to mediate between the parties are welcome, it is not clear why such mediation could not be organized at the beginning at the proceedings, or as soon as the illegal occupant is identified as such, rather than at the end of a 7 year long process.

A third issue is the lack of information for the parties. KPA officers explained in the course of the court hearing how the mediation procedure takes place, clarifying that the mediators were duly trained and that they were following standard operational procedures. However, such information is not publicly available for KPA claimants: in this case, entering the KPA mediation procedure amounts to a “leap into the dark”. Publicizing information on the exact nature of the proceedings could help win the trust of claimants.

A fourth issue represents the outcome of the mediation itself. If successful, the mediation procedure will be concluded by a contract signed between the two parties. However, it is unclear what would happen if one of the parties does not fulfill their obligations. Which body would assess the compliance by the parties with what agreed at the mediation procedure? Will the KPA be competent to intervene and enforce its decision? Or will the case be transferred to a local Court, given its contractual subject matter? This issue has not been decided yet, but it can surface in the future. A few mediation agreements were already concluded between parties, but it is not clear whether those have been respected or not.

All these issues provided a basis for the current applicant’s decision to refuse the mediation. The KPA however, literally could not provide any alternative way of solving the dispute, since the Government of the Republic of Kosovo has not made funds available for the solution of such claims. The KPA could not provide any other remedies for the claimant as a result. Accordingly, the Constitutional Court found violations of the applicants rights to property, a fair trial and a remedy under the ECHR, giving the KPA a three month deadline to enforce the claim. This period will run out on 16 July, at which time the Court will assess compliance by the KPA with its decision and take further measures, which could include even referring the case to the Public Prosecutor.

The issues mentioned above should be taken into account whenever mediation is considered as a way of solving post-conflict property disputes. Full information should be provided in advance to the claimants, and parties should be placed on equal grounds so that they both have an interest in the effective resolution of the issue. However – and this seems to be at the heart of the issue – mediation is only a means to reach a remedy for the illegal occupation of property, and should not be confused with the remedy itself.


2 responses to “The Kosovo Constitutional Court on displaced persons’ property rights: Can mediation ever count as enforcement?

  1. Pingback: TN mellows out at five | TerraNullius

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

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