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.

Sargsyan and Chiragov: The Strasbourg Court takes aim at frozen conflicts?

by Rhodri C. Williams

Last week I joined Philip Leach of the European Human Rights Advocacy Centre (EHRAC) in Strasbourg to present the European Court of Human Rights’ June 2015 judgments in two cases related to the Nagorno-Karabakh conflict to government representatives at the Council of Europe, at a briefing event organised by the European Implementation Network and the Open Society Justice Initiative.

The cases were Sargsyan v Azerbaijan and Chiragov v. Armenia, which were effectively joined by being relinquished from their original chambers to the same composition of the Grand Chamber in 2010. Both judgments found continuing violations of the applicants’ rights to property and their homes (as well as an effective remedy) based on their displacement in the early 1990s and subsequent inability to return to or access their properties.

While not (yet) signaling the initiation of a pilot judgment procedure, the court notes that the cases typify repetitive claims resulting from the respondent states’ failure to peacefully resolve the Nagorno-Karabakh conflict, reiterate the “primordial” importance of subsidiarity to the functioning of the Convention system, and recommend that both states take immediate steps to address property claims on their own steam:

…it would appear particularly important to establish a property claims mechanism, which should be easily accessible and provide procedures operating with flexible evidentiary standards, allowing the applicant and others in his situation to have their property rights restored and to obtain compensation for the loss of their enjoyment. (Sargsyan, para. 238, Chiragov, para. 199)

Taken together, the judgments represent intriguing developments at a number of levels.

Property issues in Libya: A reminder that the road to sustainable peace still goes via root causes

by Rhodri C. Williams

What to say about Libya? Despite the slide from the country’s post-revolutionary and chaotic new normal to civil war, it is still too early to give up hope. While Libya may have yet to scrape bottom, many of the factors that argued for a sustainable recovery from Gaddafi’s long nihilistic night remain latent. And despite the increasing subordination of Libya’s politics to the influence of regional competitions and actors, the country still remains to some degree a case apart, churning in the region’s ideological divisions without the despair-inducing ethnic and sectarian fractures that threaten the Mashriq.

It seems a very long time since my work in Libya, on property issues that stalled (at best), displacement issues that exploded, and rule of law issues that have descended to a near farce, with mass trials of senior Gaddafi regime officials wrapping up amid power cuts and procedural irregularities. By all accounts, Ibrahim Sharqieh’s grim prediction that the lustration law forced through in 2013 would be the equivalent of the Iraqi de-Baathification process has been vindicated, as the heavily militarized winners of the revolution collapsed into open conflict with each other. Then comes IS in Sirte, refugee catastrophes in the Mediterranean, and the needless death of good and selflessly devoted Libyans.

The temptation is strong in such situations to cut losses and contain damage. For Europe, for instance, earlier efforts to build up a Libyan state that could be a responsible partner on migration issues have now given way to desperate proposals to unilaterally stem migration that bypass and undermine what remains of the Libyan state. Fortunately, the UN Special Envoy to Libya, Bernardino Leon, has shown extraordinary persistence, chivvying two sides that refuse to recognize each other into 80% of a peace deal even as economic collapse looms. Another refusal to write Libya off came last month, when the Legatum Institute revived the moribund debate over property issues in Libya.

Upcoming discussion of restitution at Stockholm University

Just a quick note to say I will be giving a talk on the right of restitution in two weeks at the Stockholm Center for International Law and Justice. Any TN readers locally-based or passing through are welcome to join!

“The Endorois decision” – Four years on, the Endorois still await action by the Government of Kenya

by Rebecca Marlin

Rebecca Marlin is currently the Legal Fellow at Minority Rights Group International (MRG) in London. She earned her B.A. from Wellesley College and her J.D. from Fordham University School of Law. During her time at MRG she will be working extensively with the Endorois to achieve implementation of the 2010 African Commission decision granting them rights to Lake Bogoria.

For the Endorois of Kenya’s Lake Bogoria, the process of reclaiming their land from the government of Kenya has been one step forwards and two steps back. In 2003, MRG and partner organisation Centre for Minority Rights Development (CEMIRIDE), acting on behalf of the Endorois Welfare Council, went before the African Commission on Human and Peoples’ Rights to demand that the Kenyan government recognise the rights of the Endorois to Lake Bogoria.

The Endorois had inhabited Lake Bogoria for over 300 years before being evicted by the government in the 1970s. In 2010, the Endorois won the landmark case Centre for Minority Rights Development and Minority Rights Group International (on behalf of Endorois Welfare Council) v Kenya. The land rights aspects of this groundbreaking decision have been discussed on this blog here and some of the regional implications here.

A pattern of empty promises emerges

Immediately following the Commission’s ruling in February 2010, the government of Kenya welcomed the decision, promising to begin implementation. A large celebration of the decision was held at Lake Bogoria; the Minister of Lands was in attendance and the momentous occasion was broadcast on television nationally. Kenya’s progressive National Land Policy had been enacted only a few months prior to the ruling and, with a forward-thinking new Constitution in the drafting stages, it seemed the decision might soon be translated into restitution of land, compensation, and benefit-sharing for the Endorois.

However, in May 2010, a report on implementation due to be submitted by the government of Kenya to the African Commission failed to arrive. Throughout 2010 and 2011, the government of Kenya failed to take any significant action on the recommendations. One MP openly challenged the Minister of Lands in Parliament about this delay in January 2011; the official response from the Minister was that he would not be able to take any action until he received an official sealed copy of the 2010 decision – despite the fact that the decision had been officially adopted and published one year earlier. A sealed copy was thereafter delivered to the Minister, but this did little to improve the situation.

When pressed on the matter, the government continues to affirm that it supports the decision and is taking steps to carry out the Commission’s recommendations. Yet, steps taken by the government indicate the exact opposite and new legislation on Lake Bogoria threatens to further separate the Endorois from their land.

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.

Land reform in Colombia: One step forward, two steps back

by Nelson Camilo Sánchez and Ilan Grapel

Nelson Camilo Sánchez is a research coordinator of the Center for the Study of Law, Justice, and Society Dejusticia and associate professor at the Universidad Nacional de Colombia in Bogota. Ilan Grapel is a recent graduate of Emory University School of Law. For the last six months, he has been working with Dejusticia, where he has been researching issues relating to transitional justice in Colombia’s peace process.

Land reform in Colombia, while politically sensitive, is necessary to stabilize the country and end a violent conflict that has plagued Colombians for more than half a century. Colombia’s internal fighting has deprived millions of their land and livelihood. Adopted in June 2011, Colombia’s Victims and Land Restitution Law, also known as Law 1448, is an important advance in providing restitution for those displaced by the conflict.

With this law, the government officially recognized the existence of an internal armed conflict. The Victims Law demonstrates that the government hopes to provide greater rights to the victims of the conflict. However, this legislation needs to overcome many obstacles; foremost among them, the Victims Law needs to find a way to provide reprieve to the large number of victims who may be entitled to compensation under the law.

To date, the government has made progress in realizing restitution claims. However, the law alone cannot cure Colombia of inequality within its population. As the government struggles to return impoverished victims to their lands, the moneyed classes continues to aggregate land and resources that allow them to maintain a lifestyle vastly different from the average Colombian, let alone the landless farmers. This inequality creates a tension that prolongs the hostilities and continues the displacement in the region.

For Colombia to transition into a successful and stable country, the government needs both to improve the Victims Law and address other land distribution problems.

Upcoming guest posting on the Colombian restitution process

by Rhodri C. Williams

I am very pleased to announce another happy by-product of my recent participation in the Essex Transitional Justice Network’s recent course and seminar on land issues in transitions. In addition to Clara Sandoval’s upcoming guest-post on the Inter-American Court of Human Right’s recent ruling on Chile, I can now reveal that another seminar participant, Camilo Sánchez of the Colombian NGO Dejusticia, will be writing for TN together with his colleague Ilan Grapel.

I have had the pleasure of getting to know Camilo during earlier work on property issues in Colombia, such as a UNHCHR workshop for the then-newly minted restitution judges precisely a year ago (for all the presentations including my own in simultaneous Español, see here). In the context of what is often a hopelessly prickly relationship between government and civil society, Camilo and his colleagues at Dejusticia deftly combine effective advocacy with sharp, independent analysis.

Camilo’s post will focus on the implementation of the current program of restitution of land aimed primarily at victims of Colombia’s right wing paramilitaries, arguing that improvements to the functioning of the restitution law should be accompanied by a broader commitment to distributive reforms. This is of course a crucial topic at the moment for Colombia, given the negotiation process with the Farc that resulted in a landmark agreement on agrarian reform last Spring.

One of the issues that has haunted both the current restitution process and the Government’s efforts to negotiate an end to the conflict with the Farc has been the issue of whether it will truly be capable of ending a centuries-long tradition of failed land reform and resulting political instability. Ana Maria Ibanez and Juan Carlos Munoz captured this historical dynamic in their chapter of a 2010 Forum for International Criminal and Humanitarian Law volume on “distributive justice in transitions” (highly recommended and available here in pdf).

Ibanez and Munoz describe how Colombia’s vast interior allowed successive governments to buck pressure to redistribute land by encouraging the “colonization” of smallholder plots – only to have the big landowners swallow these plots up again, turning their cultivators into impoverished and aggrieved tenants. Cited in a recent article in the Economist, Ibanez has gone on to note how mass displacement and ongoing violence from the last round of ‘agrarian counter-reform’ have fundamentally reduced tenure security for all farmers, reducing the country’s agricultural efficiency: 

Svaka čast Croatia

by Rhodri C. Williams

And let me say how honored I am that you chose my birthday for accession to the EU! I’ve had a pretty complicated relationship with you in the past, I have to admit. On the positive side, I used to flee to you when the narrow valleys of Bosnia got me feeling fenced in and I needed to pop over that last rise after the Metkovic border crossing and let that view – the burnished expanse of the Adriatic – seep physically into me. We also used to pile out to the north, going hell for leather from Slavonski Brod along the ex-Highway of Brotherhood and Unity, anything just to hit Zagreb before the only Mexican restaurant in the West Balkans announced last call.

Beyond my personal enjoyment of your charms, I was also impressed in a grim way by your ability to stick it out as a small country in a historically tough neighborhood. The sort of existential problems you faced in the 1990s were unlikely anything I could imagine, having grown up in the protected suburban vastnesses of the 1970s US midwest. The problem, in my mind, was not (only) that you didn’t have clean hands (nobody did). The problem was that you couldn’t come clean about it. Of course, nobody else could either, but you, unlike the others, just galumphed right over your historical indiscretions like so many speed bumps on the boulevard to European integration.

So what is my beef? Well, I worked on property restitution in Bosnia. So I watched as the ‘international community’ in Sarajevo turned the screws on the Bosnians until they extended restitution to cover not only all private houses but also all socially owned apartments (with a few fateful exceptions of course). And I watched as the same international community in Zagreb gradually conceded points that we had gone to the wall over in Sarajevo and started to purge terminology like ‘tenancy rights’ from documents like EU accession progress reports.

I also worked on the OSCE and ICHR friend of the court briefs in the ill-fated Blecic case before the European Court of Human Rights, and assisted the Council of Europe Parliamentary Assembly’s attempt to push for uniform restitution standards in Europe. I marveled both when the ICTY condemned the uncompensated confiscation of 30,000 socially owned apartments as part of a broader plan to remove Serbs from Croatia, and when that ruling fell on a seeming technicality. And I am left to conclude that the relatively prosperous and self-confident Croatian political elite was simply not held to the same rigorous standards still being applied to their poor and less organized cousins in Bosnia.

The bottom line is that the country that declared independence in 1991 had a 12.2% Serb minority while the country that joined the EU today has a 4.4% Serb minority, and that little statistic patches over a lot of ongoing misery and unredressed violations. Now I know its still not an easy time for you what with sliding EU support and all the commentators cracking wise about how you fought your way out of one oppressive, economically troubled confederation twenty years ago only to fling yourself into another today. So I’ll say only this. It is entirely to your credit that you have entered the hallowed precincts of the EU but it is troubling that you did so with a certain number of skeletons clanking around in your luggage.

Of course, one might as easily find fault for this state of affairs in Brussels as in Zagreb. But pressuring countries that are already in to observe such niceties as the Copenhagen criteria and the rule of law is not the EU’s traditional strong suit. In any case, that is nothing that should prevent you from finding that it lies in your own best interest to engage sooner rather than later with your past. And doing so in a clear-eyed way would, at a stroke, remove many of the excuses holding back your EU-aspirant neighbors from doing the same. And maybe leave both the EU and the western Balkans in better shape as a result. So, congratulations, and good luck as part of the European project of building a future worthy of the sacrifices and suffering of the past.

Land deal between Government and FARC in Colombia

by Rhodri C. Williams

Reports have emerged this morning that peace negotiations between the Colombian government and the left-wing Farc rebels have resulted in an accord on land issues. The chief Government negotiator, Humberto de la Calle describes the land agreement (here, in Spanish) as a measure that will “transform the rural realities of Colombia and create real changes that can close the gap between rural and urban areas.”

In both Mr. de la Calle’s official statement and the actual Joint Communication issued by the parties to the negotiations in Havana (both in Spanish), a good deal of stress is placed on the principle that “nothing is agreed until everything is agreed.” Thus, although the land accord represents a real breakthrough, it will remain no more than “principles that orient” the peace talks until the peace talks are concluded. And numerous challenges lay ahead, beginning with the next chapter of talks on FARC’s future political status.

However, there is certainly cause to take hope. While the current set of statements are vague on details, two principles appear to be clearly endorsed. The first is that the accord would support an equitable approach to land in rural areas, bringing broad-based economic and social development and securing land for campesinos. If implemented, this would quite simply set the last three hundred years of Colombian rural land policy on its head.

Second, the starting point for the accords appears to be the principle that those wrongfully dispossessed of their land in connection with the decades long conflict between the Farc and the government must receive a remedy. While the parties continue to disagree on who is responsible for how much dispossession (as between  right wing paramilitary groups that have enjoyed the tacit support of the Government in the past and Farc fighters), the establishment of the principle that victims should receive remedies in all cases, is a crucial breakthrough.

Just how crucial will be clear to anyone who has studied the long and tormented history of restitution proposals made during the previous process of demobilising right wing paramilitaries, beginning during the tenure of the previous President Alvaro Uribe, but only meaningfully engaged under the current President Manuel Santos. And a very healthy precedent was set by the fact that when restitution legislation was finally passed early in President Santos’ presidency, it applied in principle in favor of all victims, regardless of the perpetrator.

It is encouraging that the land accord reached in the Farc peace process appears to have bypassed the protracted wrangling over responsibility for dispossessions and other abuses that plagued paramilitary demobilisation. However, the most hopeful sign of all may be that the restitution process that resulted from paramilitary demobilisation appears to have taken hold, with a dedicated corps of restitution judges issuing fairly bold decisions on the return of land taken by notorious paramilitary groups, many of whom remain active – and dangerous – in the form of ‘criminal bands’.

The slow pace of the current restitution process and the continued risks to both claimants and adjudicators indicate the challenges that will face the eventual implementation of the Farc land accords. At the same time, the apparent commitment of the Santos Government to implementation of its restitution commitments in the wake of paramilitary demobilisation may give victims of the conflict with the Farc reasonable grounds for hope.