by Massimo Moratti
Since 2012, I have been informing the readers on some key developments in the field of property rights, as they emerged from the practice of a legal aid project in Serbia for refugees from Bosnia and Croatia as well as displaced persons from Kosovo*. The November 2011 – June 2015 phase of the project (which has been funded by the EU Delegation to Serbia since 2008) was implemented by a team of lawyers and barristers I had the privilege of leading.
Many of the blog readers might wonder what happened with the Project since the last post two years ago, and I am glad to use this opportunity to provide an update on subsequent developments. At that time, the project was due to end in June 2014, but received a one year cost extension from the EU Delegation to the Republic of Serbia. The project was financed under the Instrument for Pre-Accession (IPA), the main fund to support countries that are in the EU accession process.
Under the terms of the IPA, a local public institution, in this case the Serbian Government’s Office for Kosovo and Metohija (the OKiM), was designated as beneficiary of the Project. Accordingly, the OKiM provided free legal aid to displaced persons from Kosovo via outsourcing to a consortium of private companies and NGOs, which in turn implemented the project under the EU flag.
This is the standard arrangement for EU funding, but in this specific case, where the divide between Serbia and Kosovo* institutions remains wide, it was crucial to make sure that a team of EU-funded lawyers could operate between the two legal systems, engaging in de facto conduct that I defined as “shuttle legal aid”.
For those not familiar with the practicalities of the issue, it is worth recalling that there are, according to the Serbian authorities, around 200,000 displaced persons from Kosovo. It is unclear how many of them have not yet solved their property issues. While displaced persons are mostly in Serbia, their properties and other assets are located in Kosovo, and any attempt at ensuring the protection of their rights needs to be conducted before the institutions of Kosovo*.
However, the two legal system do not recognize each other’s documents, and there is no functioning post or telephone system between Kosovo* and Serbia. Lawyers and legal aid NGOs from Serbia are often reluctant to travel to Kosovo, both because of logistical and security issues and due to lack of familiarity with the institutional setting of the former Serbian province. Lawyers from Kosovo do not seem interested in conducting any outreach to potential clients in Serbia and more important than everything else, displaced persons themselves do not have the financial means to pay for legal expenses.
The EU-funded legal aid programme presented a solution to these problems, since it could operate in both Kosovo and in Serbia. The positive aspects were numerous: the project bridged the institutional gaps between the two systems, it was staffed with an adequate number of lawyer and barristers familiar with national and international law, and its proceedings were completely free for the IDPs (including coverage of court fees and expenses).
Indeed, besides successfully representing thousands of persons in administrative and court proceedings, the Project generated valuable information, in that it could closely observe the workings of the courts of Kosovo* in the context of property cases. Most of these cases involved disputes about the possession of property where an inter-ethnic element was present, which raised the profile and the tension in many of these disputes.
The project had a unique point of view, namely that of the claimants and their legal representatives and it could accordingly witness how legal proceedings took place “from the bottom” and very often without other international observers present. This unique point of view allowed the project to use its cases to collect information on court practice and in this manner legal aid became a “fact finding” tool, regularly reporting its findings on its website and from time to time on this blog.
The topics covered were some of the most contentious in Kosovo. Moreover, they involved the issue of property rights, where, as consistently highlighted in the EU Progress Reports about Kosovo, progress was slow or non-existent.
In the course of its work, the Project successfully represented displaced persons who were trying to challenge the illegal occupation, and in some cases demolition, of their properties. In other cases, the Project initiated criminal and civil proceedings cases against persons who acquired property via “fraudulent transactions”, highlighting patterns indicating that the forgery of property documents and records was not just an act of few corrupt individuals, but in certain areas a concerted effort to grab land to be used for business purposes.
In several landmark cases before the Constitutional Court of Kosovo, it was also possible to highlight how an internationally funded mass claims mechanism, the Kosovo Property Agency (KPA) had itself violated the rights to property and fair trial by refusing to solve property disputes or to award compensation to claimants.
However, like all projects, this one too came to an end on 12 June 2015. A new project was meant to start in November 2015, leaving a five month period during which no legal aid would be provided to displaced clients. This gap arose due to the fact that management of the project and the decision on awarding the tenders had passed from the EU Delegation to the institutions of the Republic of Serbia (which in 2014 entered the Decentralised Implementation System in which EU funds are managed by the domestic institutions).
In the end, the delay, like the previous extension of the project, came due to the simple fact that Serbian institutions were not ready to implement the project on their own.
Criminal court proceedings (and more importantly statutes of limitations) follow their own timeline and if parties are not represented, judicial authorities will simply close their cases. For this reason, while the new project was being awarded, a group of lawyers from the Legal Aid Project agreed to continue representing the most urgent cases for a very limited period of time, essentially on a voluntarily basis.
In this context, it might be logical to expect that the continuity in ensuring the provision of legal aid should be one of the leading criteria when it comes deciding the new project and that the beneficiary institution, in this case the OKiM, would understand that their most vulnerable constituency, the displaced persons, would be in jeopardy without a free legal aid provider.
In fact, things went very differently. Tenders are an unpredictable process and in the Balkans perhaps more so. Moreover the new tender was particularly lucrative. This triggered a very fierce competition amongst the consortia (most of them led by for-profit companies) who had been admitted to the restricted procedure.
The Serbian evaluation commission evidently were not confident enough in implementing the EU regulations. As a result, due to “deficiencies in the evaluation procedure”, the tender was annulled and the same applicants invited to resubmit the tender documentation. In essence, the tender was re-launched.
The atmosphere became poisoned due to the articles published by a Brussels based newspaper alleging irregularities in the process, while mostly relying on inaccurate information: as a result, the EU Delegation had to publish a rebuttal to those allegations. These episodes clearly put pressure on the institutions deciding the Project; although the tender was awarded to a new team, the new Project has not yet started and it started to work only at the end of August 2016.
In the meantime, displaced persons from Kosovo* have now remained without free legal representation for over a year, many criminal cases against illegal occupants have likely been terminated because of the statutory limitations and more illegal occupants of land may have benefited from the dreaded Kosovo Law on Treatment of Construction without a Permit, which allows the legalization of illegal construction in Kosovo even without proof of ownership for the land.
It won’t be easy for the new project to deal with all these issues that have piled up, as tenders went back and forth.
A few lessons can be learned from this experience:
- The EU can be successful in running similar projects in other contested areas, where territories are disputed and authorities do not recognize each other. The EU has both the means and the credibility to facilitate these efforts. There are numerous areas in Europe alone where this can easily be applied. In this case, restoring property rights is a tool to promote the rule of law and a stable post-conflict settlement.
- Staff working on these projects should be granted a status reflecting the fact that they are implementing a EU project. This would make it much easier for the staff to avoid harassment by law enforcement officials, court clerks, municipal authorities and so on.
- The findings of the project could effectively support state-building and institution-building efforts so as to promote systemic changes to address institutional deficiencies observed in the course of implementation.
- The long run sustainability of the project should be ensured, possibly with the support of the parties involved.
- Eligibility criteria are often too loose. Addressing housing, land and property rights issues requires specific knowledge of international human rights law, including the specificities of displacement issues. The criteria for the selection of experts should reflect this but very often they are formulated in too general terms, which makes it difficult to identify who has formally relevant expertise.
- Provision of legal aid in most states is undertaken mainly by NGOs. Paradoxically, in EU contracts, it is very often for-profit companies that predominate in the tenders. Such companies naturally aspire to maximize their profits. This places them out of alignment with the need to deliver legal aid in the most effective manner, even if this means reducing profits.
- Most importantly, gaps and interruptions in legal aid projects are disastrous. Continuity should be ensured between project phases, if not in their management then their implementation, so that the actual case workers who are the most important persons for the displaced clients continue to do their work even if the management of the project changes.