Tag Archives: remedy

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

Advertisements

Chile and the unfinished business of justice and reparation

by Clara Sandoval

Dr. Clara Sandoval is a qualified lawyer and a Senior Lecturer in the School of Law at Essex University. She is the Director of the Essex Transitional Justice Network and Member of the Human Rights Centre as well as the Advisory Board of the Human Rights Clinic. She specializes on the Inter-American human rights system, transitional justice and reparations.

Forty years have passed since the coup in Chile and we are still waiting for justice and reparation for the majority of Pinochet’s victims. As a result of the dictatorship in Chile, there were more than 200,000 exiles, more than 38,000 survivors of torture (according to the Valech Commission) and roughly 3,000 persons subjected to enforced disappearance or extra judicial killings (according to the Rettig Commission).

Don Leopoldo García Lucero, his wife Elena and their three daughters are some of those victims. He was detained in 1973 in Santiago, passed through various detention centres (among them El Estadio Nacional, Tres Alamos and Chacabuco) where he was subjected to torture (physical and mental) and other cruel, inhuman or degrading treatment. In the summer of 1975 he was expelled from the country by decree. He arrived in the UK with his family as refugees. Since 1973 his life and that of his family has been on hold. He lives in London in social housing with his wife.

Chile has adopted important measures to deal with the legacy of mass atrocities, particularly in the area of reparation and memory, but most of them were for the benefit of the next of kin of those disappeared or killed. Meanwhile, justice (meaning the investigation, prosecution and punishment of the perpetrators of those crimes) and adequate, prompt and full reparation for torture survivors and their next of kin, those in exile and those victims who are both exiles and torture survivors remain an unfinished business.

Chile began its transition to democracy between 1988/90, and thirteen years later, in 2003, the Valech Commission was established to identify the survivor victims of torture, and only in 2004 some reparations were put in place to deal with the harm caused to torture survivors and their next of kin; these were primarily designed to provide redress to those living in Chile and not those in exile like Mr. García Lucero. In contrast, truth-seeking and reparation for victims of disappearances and killings took place just after the return to democracy at the beginning of the 1990s.

The investigation, prosecution and punishment of torture perpetrators remain a challenge in Chile. Very few cases are being investigated; the punishment of perpetrators is not proportional to the gravity of the crimes, and Chile lacks a specialized system (as it has for disappearances and killings) to investigate torture cases.

Furthermore, in Chile there are various obstacles to justice: the amnesty law remains in place (despite the judgment of the Inter-American Court in Almonacid Arellano v. Chile ruling it was contrary to human rights), and in particular, there is a law that decrees that all information that was collected by the Valech Commission remain secret for 50 years. However, this information is of extreme importance in the investigation of torture cases which occurred during the dictatorship given the difficulties to identify perpetrators without being able to cross-reference information with other persons who were detained in the same places and at the same time.

This is why the litigation against Chile in the case of Don Leopoldo García Lucero, his wife Doña Elena and their three daughters was important to REDRESS and to me as one of its lawyers. Victims, particularly torture survivors who are permanently disabled (like Don Leopoldo) and were unable to move on after what happened to them, and are in exile with their families, are extremely vulnerable people who have a right to justice and reparation, but face multiple barriers to making them a reality.

Continue reading

The Kampala Convention on internal displacement in Africa: What does it mean for housing, land and property restitution?

by Mike Asplet and Megan Bradley

Mike Asplet is an attorney currently working with the Brookings-LSE Project on Internal Displacement. Megan Bradley is a Fellow at the Brookings Institution, where she works with the Brookings-LSE Project.

The African Union’s Kampala Convention for the Protection and Assistance of Internally Displaced Persons (IDPs) in Africa will hopefully come into force any day now. When it does, it will be the first regional treaty to comprehensively address the IDP issue, from preventing displacement to providing protection and assistance, and supporting durable solutions. The Kampala Convention represents a critical new tool for tackling some of the largest and most complex IDP situations in the world: some 10 million people are internally displaced across the continent, making up one third of the world’s IDP population.

The treaty reflects well-established normative frameworks, primarily the Guiding Principles on Internal Displacement, which have to date provided the foundation for IDP protection and assistance efforts. However, the Kampala Convention also significantly advances the normative framework on internal displacement in several key areas. These include protection from arbitrary displacement; the responsibilities of the African Union, multinational companies and private security actors; and the right to a remedy for the wrongs associated with displacement, including the loss of housing, land and property (HLP). The question of remedies for lost HLP is particularly important, as land conflict is at the root of many internal displacement flows in Africa, and the resolution of hotly contested land claims represents a key barrier to solutions for thousands of IDPs.

On first glance, it doesn’t seem like the Kampala Convention has much to say about land issues, and in particular the restitution of displaced persons’ lost property. In light of the popularization of the (contested) UN Principles on Housing and Property Restitution for Refugees and Displaced Persons (the so-called “Pinheiro Principles”) and trends such as the now-common practice of explicitly addressing the restoration of displaced persons’ HLP rights in peace treaties, it is striking that there is no reference to restitution in the Kampala Convention. This omission is clearly deliberate. While many provisions from the Guiding Principles have been specifically incorporated into the Kampala Convention (in some places without amendment), the documents diverge considerably in their approach to question of HLP rights, and restitution in particular.

Continue reading