Tag Archives: kosovo

Lost in transition – EU financed legal aid programme between Serbia and Kosovo falters

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. Continue reading

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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. Continue reading

Bosnia 2013 – a tale of two pictures

by Rhodri C. Williams

As the ‘Arab uprising’ countries are now learning the hard way, building a better future is a process that can often be expected to last just as long as surviving one’s bad past did. It is a bitter pill for local populations to swallow, particularly in countries like Libya where the euphoria of having slipped the grasp of a seemingly immortal psychopath is being ground down by the dispiriting business of overcoming his legacy. Its a lesson that well-meaning international observers seem to have an even harder time digesting, let alone anticipating (despite the fact that we have all been down this road before and should know by now that there are no shortcuts).

So thats what made the taste of Bosnia’s recent qualification for the World Cup so sweet. After years of stagnant ethnic deadlock, this event seemed like something that in retrospect would be seen as an awakening from a prolonged coma. A pulse had been detected last summer when ordinary citizens finally revolted against a politics of not re-attaching your own nose to spite the other guy’s face, and then had fizzled out as disillusion and ordinary life set back in. Then suddenly, the first stirrings of something big as the Bosnian team crept closer to Brazil, beating Slovakia in September and being rewarded with its unprecedented adoption as ‘our’ team by the staunchly nationalist Glas Srpske.

bosnia_qualifies_for_brazil_world_cup4And then the breakthrough – and talk of a long-overdue ‘national success story‘ – as the ‘Dragons’ swept Lithuania before them and qualified last October. Suddenly, it seemed as if Bosnia would be redefined by pictures like this, an ordinary family celebrating the victory of a highly non-ordinary state. The new Bosnian flag that rumors attributed to an OHR intern with basic photoshop skills – and that wags said looked like the logo on a cereal box – was to flap off to Brazil with all its other more time-honored fellows. The turning of a page at last.

A number of other factors spoke for normalization in Bosnia and perhaps the entire region. Warts and all, the first Bosnian post-war census was completed at around the same time of the qualifying match. Off in Kosovo, a new EULEX head seemed to take a firmer approach to corruption, even as the territory lurched toward shambolic municipal elections that were nevertheless the first ever to be supported by both Pristina and Belgrade. However, it is hard to overstate the horrors that beset the former Yugoslavia during the 1990s, and the extent to which they will continue to compete with the fragile new normality in defining the country’s image.    Continue reading

Reconciliation, or getting over losing to win in the Balkans

by Rhodri C. Williams

For several years now, I have provided periodic technical advice to a European Union funded program to aid refugees and displaced persons in Serbia. Although the deck has been stacked pretty heavily against the program’s clients and the rest of the world’s attention long since wandered from their plight, it means a lot to me to be able to continue participating in picking up the pieces from the conflicts that shocked me into political consciousness back in the distant 1990s.

My most recent trip came last week, for a training in Belgrade. Much on the way to Serbia was bracingly familiar, beginning with the blithe surliness of the nicotine-raspy JAT stewardesses who make you eight again and dealing with the cafeteria ladies as they slap a canned sandwich down on your bobbling tray. Belgrade itself was indecently unchanged, with its steady throng of cheerful and careworn pedestrians wandering amidst canyons of faded glory. Of all the Eastern European places I return to, Belgrade seems to change the least, not resisting so much as ignoring the tsunami of Benetton gentrification that rages all around it.

This is not to say that the politics haven’t changed. In many respects, its been a banner year for the West Balkans. As Besar Likmeta recently pointed out in Foreign Policy, the accession of Croatia to the EU on July 1 capped a sequence of breakthroughs ranging from the belated election of a true reform candidate in Albania to the political galvanization of Bosnia and most notably, the power-sharing agreement arrived at between Belgrade and Pristina. At first glance, the only parties that seem bitterly divided or incapable of applying the rule of law at all these days are within the Tribunal that was meant to fix all that (on which, see Eric Gordy’s latest ruthlessness here).

However, an atmosphere of palpable unease remains over issues like the delicate détente over Kosovo. The lawyers I met with last week exemplify the paradoxical nature of post-Yugoslav normalization. On one hand, there they are, Serb lawyers representing Serb clients in Serbian, working the Kosovo courts every day. The first time I went to Kosovo in early 2000, the idea was unimaginable (‘suicidal’ would not be out of place) and its realization gives some hope for a viable multi-ethnic future.

On the other hand, the lawyers had a laundry list of shenanigans, underhand, bureaucratic and worse. In many senses, the uprooted and impoverished clients they represent are the most easily dispensable part of a veritable mountain of irregularities and grievances accumulated during a decade of international administration. Property claims remain a significant issue, but must be viewed alongside unresolved disappearances, highly contested privatizations, potentially massive liability to the former employees of state firms and other pending calamities.

That said, the lack of trust remains striking. After dinner one evening, the conversation revolved around plots. Is this a blocking maneuver meant to distract us from that or wedge us out of there? There was some ironic laughter but an undertone of real worry. For Serbs living and working in Kosovo, a sort of elemental uncertainty that long since evaporated from more settled former war zones like Bosnia still clings.

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If it’s broke, destroy it? The partition debate arrives in Syria

by Rhodri C. Williams

Almost inevitably in appalling situations like the conflict in Syria, there comes a moment when inhibitions seem to drop among certain sectors of the commentariat and a note of petulant, provocative resignation enters the debate. They can’t live together, goes the standard line, and they have well and truly proved it now. Why should liberals in the West be indulged in their Benetton fantasies? Why spend blood and treasure to preside over the shotgun remarriage of nations so fundamentally unable to tolerate each other’s presence that they engage in fratricide?

The infuriating thing about such ‘partitionist’ arguments is not (only) the curiously visceral satisfaction some commentators seem to take in espousing a vision of humanity unable to accommodate difference by any other means than forced assimilation or strict separation. Nor is it the fact that such arguments tend to rely on speculation about what ordinary people actually want, often in the face of considerable evidence to the contrary. Nor the way that they play into the hands of unprincipled and frequently undemocratic elites and conflict entrepreneurs. It is the fact that they may in some cases be right but for all the wrong reasons.

My first brush with ‘partitionist’ lines of argument came in Bosnia where my initial receptivity to them was challenged not only intuitively (by my unreconstructed persistence in the belief that people can find ways to rub along together) but also structurally (by my job specifically seeking ways to support Bosnians in doing so). However, my best efforts notwithstanding, the partition bandwagon rolled along, perhaps in most raucous form when splitting Bosnia looked like a real option, yet gaily undeterred long after it was clear that partition was neither particularly feasible nor especially desirable.

Perhaps as a result, there was a certain satisfaction in having worked on something as seemingly pollyanna-ish as property restitution in post-conflict Bosnia and seen it succeed. Granted, not everyone returned, but the result was segregation based largely on individual and household choices, rather than partition based on a political sew-up. And, safe in an unprovable negative, I will propose that the brute fact of restitution – the resolution of 200,000 claims that intimately affected many of the families most victimized by the conflict – cannot but have had a calming influence that has helped keep Bosnia’s notorious post-war ethnic politicking from spilling over into new bloodshed.

One can even argue that the pollyannas have been vindicated once again by the recent post-nationalist demonstrations in Bosnia. Perhaps the new generation we have all been going on about so long has now come of age. If this is the case, a new politics could result. Certainly not a politics that transcends nationalism (not even Sweden can manage that), but one that could at least reveal the hollowness at the core of the ‘inevitability’ discourses surrounding partition proposals in places like Bosnia.

Nevertheless, in 2004, the very year that I left Bosnia convinced that partitionism was en route to the dustbin of history, ethnic riots in Kosovo sent carefully orchestrated plans for national reconciliation there into a tailspin. A familiar call and response ensued, with aggrieved international observers eager to wash their hands of the mess and earnest liberal interventionists arguing that the preservation of a multiethnic society was not only possible but necessary.

At that point, my former Bosnia colleagues Marcus Cox and Gerald Knaus of the European Stability Initiative (ESI) were prompted to mount one of the most spirited defenses of ‘post-partitionism’ to date, contrasting the integrity of international efforts to hold places like Bosnia together with the cynicism of an earlier generation of peace agreements in which population transfers were as routine as border demarcations. But in 2004, one year into the US invasion of Iraq, the partition debate had barely begun. Two years later, the festering dispute between Arabs and Kurds over the region surrounding Kirkuk and the spiraling sectarian violence in Baghdad placed partition squarely on the international agenda.

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That 1990s feeling, or how conflict-related internal displacement never really went away

by Rhodri C. Williams

As we enter a series of twenty year milestones from the meltdown of the former Yugoslavia, it has been a bit too easy for many of us who came of age back then to reflect on internal conflicts – the crucible in which the internal displacement advocacy movement was forged – as a phase we were all moving beyond. Until recently.

Until recently, it was possible to think of conflict displacement as a ‘first wave’, still problematic in the sense that frozen conflicts from the 1990s had entrenched patterns of protracted internal displacement, but no longer of primary concern. With some of the initial nationalist spasms of the post-Cold War thaw exhausted and a practiced UN-led peace-building and mediation response at the ready, it has been easy enough to be lulled by the overall statistics on declining numbers of active internal conflicts.

Moreover, in the wake of the 2004 tsunami and dawning awareness of the effects of climate change, an effective advocacy campaign by then-Rapporteur on Internal Displacement Walter Kälin shifted attention firmly to rights-based responses to a ‘second wave’ of internal displacement, that caused by natural disasters. As reflected in the UN Human Rights Council’s recent undertaking to address internal displacement , the focus on disasters has come to define much of the advocacy in the field, to some degree eclipsing conflict concerns. Meanwhile, a third wave looms as pressure on land and natural resources gives a sharp new edge to the issue of development-induced displacement.

Reading all this, one would be tempted to take some relief in the fact that each new impending crisis appears to be accompanied by changed conditions or improved responses that help to ameliorate the last. If only it were so tidy. While the peaking of sectarian violence in Iraq after 2006 was a wake-up call to the persistence of internal conflict and displacement, it had begun to look like an isolated incident again until recently. However, with Syria now presenting a full-blown ‘human catastrophe’ and Burma accused of  crimes against humanity in Rakhine state, conflict displacement is once again center stage in all its awful glory.

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The Human Rights Advisory Panel holds the UN in Kosovo responsible for failing to investigate forced disappearances – too little, too late?

by Massimo Moratti

In the uphill struggle to ensure the accountability of international organisations and in particular of peacekeeping missions, the recent decision in S.C. against UNMIK issued by the UNMIK Human Rights Advisory Panel (HRAP) can definitely be considered a landmark case.

The HRAP is the body tasked in 2005 with examining complaints of alleged human rights violations committed by or attributable to the United Nations Interim Administration Mission in Kosovo (UNMIK). In doing so, the Panel applies the European Convention on Human Rights (ECHR) as well as other key global Human Rights conventions, and makes non-binding recommendations to the Special Representative of the Secretary-General (SRSG) in charge of UNMIK.

UNMIK was established following the Kosovo crisis of 1999 with full legislative and executive powers for the administration of Kosovo. UNMIK was, tasked under UNSC Res 1244 with “promoting and protecting human rights in Kosovo” and it performed police and judiciary functions until 9 December 2008, when those competencies were handed over to the EU Rule of Law Mission in Kosovo (EULEX).

Disappearances in Kosovo and UNMIK’s inaction.

It is within this context that Ms. S.C. lodged her complaint. Ms. S.C. was the wife of Ah.C and mother of An.C. On the 18 July 1999 An.C and Ah.C. while working at their family business in Prizren were ordered by three uniformed Kosovo Liberation Army (KLA) members to follow them to do some work. The KLA members said they would be back within half an hour. Their bodies were recovered one year later, in August 2000, by ICTY investigators near the Prizren cemetery. It was only in 2003 that M.C., the other son of the complainant, received the bodies of his father and brother after UNMIK had issued confirmation of identity certificates.

Ms. S.C. complained on several occasions, but the investigations conducted by UNMIK led to nothing. Although the bodies were recovered in 2003, the two persons were still considered as missing in the UMNiK investigation file as late as 2007. The complainants therefore alleged a violation of procedural limb of the Article 2 of the ECHR, i.e. the right to life, as well as a violation of the Article 3 of the ECHR for the mental pain and suffering allegedly caused by the situation.

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