NINTH ASSESSMENT OF THE SITUATION OF ETHNIC MINORITIES IN KOSOVO
(Period covering September 2001 to April 2002)
- Joint OSCE / UNHCR document -
HOUSING AND PROPERTY
89. To be able to securely remain in and return to Kosovo, minorities must be able to realise their property rights. [1] The effective realisation of property rights requires positive actions by the authorities. In order to evaluate whether property rights have been respected, the substance of the right must be recognised, and people must have the ability to exercise the right. Second, the authorities have a positive obligation to respect and protect property rights, with a particular obligation to protect the right to one’s home. Moreover, under this principle falls an obligation for the state authorities to undertake positive steps to remedy any violation of rights.
90. The key to property rights for minorities in Kosovo is access. The three primary aspects of access are: awareness of legal rights, physical access to relevant adjudicative and executive bodies (i.e. freedom of movement), and, finally, once physical access is gained, whether these bodies can provide effective realisation of these rights. Should any of these aspects be missing, the authorities have a duty to take positive steps to remedy a violation.
Housing and Property Directorate
91. A key obstacle to return and the protection of minorities often is their access to their residential property. The Housing and Property Claims Commission (HPCC) and Directorate (HPD) were established [2] to facilitate the restoration and confirmation of residential property rights, which have been lost through discrimination or force or which remain unclear due to informal, unregistered transactions. [3] Under their mandate, the HPD and HPCC possess the authority to evict illegal occupants and restore property to the holder of the property right (whether owners, possessors, or occupancy right holders). As many minority residences especially in mixed and urban areas are illegally occupied, the HPD and HPCC are vital to the ability of minorities to return to their homes. Two main obstacles to the effective protection of minorities’ property rights that are addressed here are minority awareness of and physical access to the HDP and HPCC, and the effective operation of these bodies.
92. Minority communities’ level of awareness of the HPD mechanism varies greatly but overall is inadequate. Within the Pejë/Pec region, awareness of HPD amongst the minority communities is severely limited, especially amongst the Roma/Ashkaeli/Egyptian (RAE) and Bosniak communities, the former of which had very little awareness of the mechanism. In Prizren region, where HPD does not have a permanent presence, awareness amongst minority communities is limited.
93. This lack of knowledge and awareness is connected largely to the level of physical presence and resources available to offices. During the reporting period, HPD had four offices in Kosovo: Prishtinë/Priština, Mitrovicë/Mitrovica, Pejë/Pec and Gjilan/Gnjilane. Only one under-resourced office continued during the period to service both the Pejë/Pec and Prizren region as well as internally displaced persons (IDPs) in Montenegro. With a severe lack of resources, HPD mobile teams are extremely rare in the Pejë/Pec region [4] , and no sustained public information campaign or other outreach has occurred. As a result, minority communities do not lodge claims. To cite only one illustrative example of problems created by a lack of information and access during the period, in Pejë/Pec municipality, a Bosniak, unaware of the HPD mechanism, attempted to repossess his house, which was illegally occupied, through informal means. Once he finally repossessed the house he found that the illegal occupant had severely damaged the residence and left large unpaid utility bills, from which he has no clear legal protection. Numerous similar cases have been reported in other regions, such as a recent case of an Ashkaelia in south Mitrovicë/Mitrovica. A greater awareness of HPD exists amongst minorities in Gjilan/Gnjilane, Prishtinë/Priština and Mitrovicë/Mitrovica regions. HPD’s presence and attention to the Pejë/Pec and Prizren regions is inadequate, resulting in deprivation of minorities’ property rights. [5] It is imperative that appropriate resources are allocated to ensure that this situation is addressed.
94. Limited resources affect not only awareness of rights, but also physical access to realising these rights. Generally, minorities do not enjoy full freedom of movement in Kosovo and the lack of HPD resources severely limits the agency’s ability to access minorities living in enclaves, who require servicing by HPD mobile teams as they cannot travel to HPD offices located in major, largely Kosovo Albanian city centres. While Mitrovicë/Mitrovica’s HPD office is located in an area accessible by all ethnicities, the Prishtinë/Priština office is not necessarily accessible to all ethnicities. Neither a satellite office nor adequate mobile teams exist to service enclaves in the remaining three regions. Minorities in the Prizren region have no office in the area to access. Thus, unless able to travel to Pejë/Pec town, minorities residing within both Prizren and the Pejë/Pec regions have severely limited physical access to HPD, as the Pejë/Pec office possesses only one vehicle. [6] This office is also designated to service IDPs in Montenegro, but this has been placed on “hold” indefinitely due to budgetary constraints. [7]
95. Outside Kosovo, IDPs in Serbia proper appeared to possess only basic knowledge, if any, of the responsibility of HPD to administer occupied property or how to access mechanisms to legally recover and physically repossess property. Some progress was made during the period in enhancing minority IDP and refugee access to HPD, namely through enhanced HPD activities outside of Kosovo. During the period, HPD began to participate in some UNHCR-organised Go-and-see Visits (IDPs visiting Kosovo) and Go-and-Inform Visits (international and local organisations visiting IDPs and refugees in Serbia proper, Montenegro and fYROM), in an attempt to disseminate more information to displaced minorities about property rights in Kosovo. HPD has also positioned teams in Serbia proper. HPD has taken 6950 claims in Kosovo, and 6726 outside of Kosovo [8] . The taking of claims outside Kosovo represents 49% of the total claims, only six months after it began (the first office outside Kosovo opened in November 2002). A large number of claims came from Gracanica/Graçanicë and Mitrovicë/Mitrovica, but other HPD operations in other areas of Kosovo went down dramatically when some of the vehicles were taken for use in Serbia proper. [9]
96. Although HPD offices within Serbia proper appear to provide reasonable access to displaced Kosovo minorities, the lack of presence in Montenegro severely limits the ability of IDPs from Pejë/Pec region especially, to exercise their right to file claims and to return to their homes. [10] HPD also still has not established any presence in fYROM in order to provide access for the refugee caseload, mostly Roma, Ashkaelia and Egyptian, displaced there. Overall, physical access to HPD for minorities inside and outside Kosovo is inadequate and prevents them from filing timely claims, and interferes with minorities’ ability to exercise their property rights. It is imperative that appropriate resources are allocated to ensure that this situation is addressed.
97. For those minorities that have physical access, moreover, the HPD mechanism is ineffective due to the HPD’s and HPCC’s overall inability to fully implement their mandates in a reasonably expeditious manner, as a result of resource and operational constraints. First, HPD announced in January 2002, that due to lack of resources, all inventory cases would be halted. In early 2002, half of HPD’s international legal staff had their contracts terminated due to lack of resources, thus delaying case processing. Thus, when claims are filed, most are not acted upon, e.g. by placing property under HPD administration or the HPCC issuing eviction orders that are executed. Numerous cases exist in all regions affecting all ethnicities. For example, HPD carried out seven evictions in the Ashkaelia section of Vushtrri/Vucitrn town in April 2002. All the evictions took place on properties occupied by Kosovo Albanians whose homes had been reconstructed in villages outside the town. On the date of their execution, three of the occupiers had voluntarily left the property. The remainder had to be instructed to leave the property by HPD. UNMIK Police, KPS, and KFOR accompanied the HPD. The agency believes that the community will accept the demonstration of resolve and the need for further evictions will decrease as illegal occupiers will comply voluntarily after having seen the authorities execute the orders. HPD provided documents to the press, demonstrating the transparency of the eviction and their compliance with rule of law principles.
98. The lack of performance by the authorities responsible for guaranteeing property rights can impede minority returns, especially to mixed and urban areas. It must be acknowledged that insecurity is the first and foremost obstacle to return, and resolution of property claims would not necessarily lead to return opportunities. But lack of effective resolution of property disputes or illegal occupations can certainly impede any progress towards a solution. In many locations it has been noted that areas with high rates of illegal occupation of minority property by the majority can create a relatively more hostile attitude towards minorities, and particularly towards their return. Illegal occupation can be a critical factor in determining the attitudes of the majority towards the minority, since the existence of the minority and their return threatens to compromise the interests of the majority who are occupying their property. Thus, property disputes and illegal occupation can in many instances themselves generate enhanced hostilities towards minorities and exacerbate security problems [11] . Prolonged failure to clarify and to enforce property rights can also have an impact on whether minorities remain in Kosovo. For example, Kosovo Serbs displaced internally within Gjilan/Gnjilane region and in Fushe Kosovo/Kosovo Polje have also stated that these problems have encouraged deprived property right holders to sell the property to illegal occupiers.
99. In February 2002 HPD Gjilan/Gnjilane admitted its widespread failure and inability to protect properties under its administration in minority areas [12] from vandalism, burglary, and other damage. Due to their vulnerable position, minorities experience these violations of their rights more consistently. Failure to provide an effective remedy for such a situation and to protect property rights of those affected results in the inability of rights holders to exercise their rights, and constitutes unlawful interference in the realisation of them by the State.
100. Moreover, minorities have limited access to the humanitarian accommodation scheme administered by HPD designed to utilise abandoned housing for those with a documented humanitarian need for shelter. The awareness and ability of minorities to participate in this scheme is limited. For instance, the HPD Pejë/Pec office has no knowledge of any minorities applying for this programme. Even if minorities attempted to utilise it, most properties falling under the scheme are located in majority-dominated areas which most of the time raises security concerns. This makes it virtually impossible to allocate humanitarian housing to minorities, unless the permits are for residences already occupied by minorities, as has occurred in Lipjan/Lipljan. The effect produces a situation of discrimination, since minorities effectively do not enjoy on an equal basis the right to an alternative, interim remedy to the deprivation of their property rights.
101. When HPD has made efforts to use the humanitarian allocation scheme for minorities, it has faced specific difficulties. For example, in Vushtrri/Vucitrn, the houses of approximately 100 Ashkaelia families who are displaced (mostly in Serbia proper) are occupied. In order to create conditions to allow a number of Ashkaelia families to return, in April 2002 HDP evicted the Albanian occupants from 13 houses, and since the property right was not yet determined, the HPD decided to use the humanitarian accommodation scheme to assign occupancy rights to the presumed owners, the Ashkaelia returnees. This initiative proved to be difficult, since the Ashkaelia were required to return during a limited time period after the de-occupation to ensure access to the properties (and to avoid allocation to other families under the scheme). This case highlights the very complex aspects of minority access to the humanitarian scheme, since many minorities who may benefit may be displaced, and the necessary creation of all of the material and security conditions for their safe return may not precisely coincide with the operational constraints of the scheme. The use of the humanitarian allocation scheme to allow IDPs access to their homes is welcomed in the sense of providing a creative solution to a difficult problem, but ultimately it is an inferior substitute to an expeditious determination of property rights.
102. While on paper the law provides adequate protection of property rights, an under-resourced mechanism has deprived minorities in particular of effective protection of their property rights. Residential property rights in Kosovo, therefore, are not effectively realised. The inability of HPD and HPCC to act, and the failure of HPD and relevant authorities to execute their decisions, moreover, constitutes a violation of due process [13] , as the HPD/HPCC have taken over the function of the courts for the cases within in its mandate. [14] According to the European Court of Human Rights, such “inertia of the competent…authorities”, including the delay of enforcement of a judgement, engages the responsibility of the authorities. [15] UNMIK (and the Kosovo Assembly), therefore, are obliged to ensure the HPD and HPCC (and enforcement authorities) function properly.
Cadastre
103. There is no functioning cadastre in Kosovo. In addition to this core issue, several other factors hamper minority access to property records. For example in the Roma community there was a common perception that property records were of little value. Many members of the community did not register their properties with the cadastre or keep property records in their homes. Additionally, those who used the cadastre have complained that the fees charged by the cadastre for copies of records were beyond their means. In Pejë/Pec the municipality has a policy for waiving the fees for persons with low income, but the policy has not been publicised. Additionally, there is no province-wide regulation governing the fees cadastre may set, and the issue is left to the municipalities themselves. In Pejë/Pec, for instance, the municipality has not yet regulated the setting of cadastre fees.
104. Minorities also have difficulty physically accessing cadastre records. The majority of the records were moved to Serbia proper after the conflict by the former regime. This is a primary reason why there is no functioning cadastre in Kosovo, which affects the entire population of the province. Furthermore, there does not seem to be a single municipality where there is a sustainable solution providing minorities that do not enjoy freedom of movement access to the cadastre records that remain. Several municipalities have provided ad hoc and temporary means to obtain these records, but none have been institutionalised.
Illegal Construction
105. Illegal seizure of property and construction upon it is a problem which affects both majority and minority populations of Kosovo, however, it presents specific problems for minorities in two principal ways. First, restricted freedom of movement means that many minorities are denied the opportunity to physically access their property in order to become aware of any illegal construction (and may be physically unable to inform the authorities in the case that they do become aware of illegal construction). This problem is even more pronounced for property owners displaced outside of Kosovo. Second, minorities are not adequately protected from discrimination due to gaps in the law. These facts leave minorities particularly vulnerable.
106. One major gap in the law involves administrative decisions on the part of the municipality. This affects minorities, as well as the population as a whole, in two ways. First, the lack of independent judicial review of administrative decisions means individuals have no remedy from a municipality’s unlawful interference with their property rights. Second, an individual is unable to protect his or her property rights against trespass without obtaining a final and binding administrative order from the municipality.
107. Regarding the first, UNMIK Regulation 2000/53 [16] mandates the municipalities to promulgate instructions to regulate construction in their respective boundaries. The regulation empowers the municipalities to issue both building permits and demolition orders. To comply with relevant human rights standards, the regulating process instituted by the municipalities must provide adequate due process to protect the property rights of individuals. A key component of due process is independent judicial review of administrative decisions. The fundamental defect in the regulation is the apparent lack of an administrative appeals process throughout Kosovo. Until a uniform procedure for administrative appeals is instituted, there is no possibility of ensuring that municipal decisions affecting the property rights of minorities comply with the applicable law and are not discriminatory.
108. Second, a member of a minority may inform the municipality that someone is illegally building on his or her property. Under UNMIK Regulation 2000/53, the municipality may deny an applicant a building permit if it has “reasonable grounds” to believe the person(s) have no legal right to use the land. [17] However, there is no mechanism to bring a final resolution to such disputes and without such, it is doubtful the minority could obtain a final, binding, and enforceable order to protect his or her property rights.
109. If minorities do not discover the illegal construction on their residential, commercial or agricultural property and obtain injunctive relief whilst the construction is taking place, the property can be lost without compensation. Given the security situation and lack of rule of law in Kosovo, it is unlikely that the police or courts would compel a majority population family to leave the home or pay compensation for the land they had usurped. The longer such claims remain open, the greater the risk to the property rights of minorities.
Reconstruction
110. Previous assessments have highlighted various problems that minorities have faced in accessing reconstruction assistance. Minorities have not received reconstruction assistance in proportion to their need or with due attention to their particular predicament of displacement. This situation creates particular hardships for large numbers of minorities displaced within Kosovo who due to lack of reconstruction assistance remain unable to solve their problem of displacement. Minorities’ lack of economic resources, freedom of movement, and their under-representation in municipal structures present obstacles to their receiving reconstruction aid, and the first two factors are precisely the ones which make minorities particularly needy when it comes to reconstruction assistance.
111. In general, minority communities are well-informed about reconstruction assistance, and the mechanisms through which to acquire such assistance, with the notable exception of IDPs outside of Kosovo who have virtually no access to information. The primary source of the problems faced by minorities in Kosovo to access reconstruction is not lack of information. Instead, problems are derived from three main factors: the UNMIK guidelines that govern reconstruction allocation; the functioning of the Municipal Housing Committees; and in some cases the actual implementation by international NGOs. These problems, combined, amount to a systemic deficiency which can produce a discriminatory effect on minority applicants for reconstruction. Moreover, minorities have no effective remedies against discrimination since there is not a sufficient oversight or enforcement mechanism and no effective mechanism to contest their exclusion.
112. The UNMIK Guidelines for Housing Reconstruction stipulated a set-aside percentage of 5-10% in 2000. In 2001, the guidelines did not stipulate a minority set-aside per se, but stated that 10% must be set aside as a contingency fund for vulnerable returnees while another 5% should be set aside for valid claims following the public posting of the beneficiary list (which could benefit any vulnerable person). [18] Results achieved were, however, quite low. In 2000, the actual allocation of available reconstruction assistance to minorities was in the region of 2%. In 2001, minorities received about 4.2% of the total. [19]
113. Municipal Housing Commissions (MHCs), the ultimate conduit of reconstruction benefits, play a decisive role in the accessibility of such assistance. Six MHCs did provide the mandated 5-10% of aid mandated for minority communities, indeed in all six cases providing more than the target. [20] The remaining fell far short, for example: Ferizaj/Uroševac (where no houses were reconstructed for minorities); Lipjan/Lipljan (where only 1%, constituting 2 families, benefited), and Prizren municipality (where only 1 house out of 142 was reconstructed for a minority). In Rahovec/Orahovac, only 3.4% went to Serbs, Ashkaelia and Egyptian beneficiaries. Where minority houses have been reconstructed, most MHCs have failed to provide minorities an allocation of aid proportional to their vulnerability or need. The actual proportion of Category IV and V [21] houses reconstructed within the minority communities is far less than that of the majority communities, who possess better access to and greater financial resources as well as full freedom of movement in the current Kosovo context.
114. Lack of access appears to result in part from the lack of adequate representation of minorities in the MHCs. To date, representation of minority interests in many municipalities has largely been left to the UNMIK Local Communities Officer (LCO), who normally sits on the MHC. The advocacy role of the LCO could be strengthened, however, with more strategic co-operation between the LCO and other organisations who work in minority communities. International involvement in the MHCs has not always ensured minority access. For example, in April/May 2001, the Obiliq/Obilic MHC, composed of Kosovo Albanians and UNMIK international staff, refused to increase the number of houses for minorities. Some MHCs, such as those in Pejë/Pec and Klinë/Klina have included minority communities’ representatives, as suggested in Article 2.3.1 of the 2001 Housing Reconstruction Guidelines, but this does not appear to have resulted in any improvement of minorities’ access to assistance.
115. Yet indeed, adequate representation and advocacy adds little value when the mechanism itself is not effective. Fundamentally, there is a lack of accountability and transparency in the distribution of assistance, which produces discriminatory effects. The lack of accountability and transparency often even prejudices the majority community, since in many cases it has been noted that the designated beneficiaries of housing units are not the most vulnerable applicants, whilst extremely vulnerable Albanian families do not receive assistance. The Housing Reconstruction Guidelines, which are not legally binding, do not mandate an oversight/enforcement mechanism to ensure that municipalities are not discriminating, except the possible withholding and withdrawal of future aid. MHC members may not wish to provide assistance to minorities unless it is mandated, as is seen in Pejë/Pec. No required allocation for minorities is established by the 2002 Housing Reconstruction Guidelines, and municipalities may designate a quota or target indiscriminately, or may not do so at all. For example, in Pejë/Pec, the MHC Chair has stated that the allocation of aid for minorities will be halved to 3.5% this year, providing no legitimate reason. That some municipalities did not allocate any assistance to minorities in 2001 is also illustrative of this point. Furthermore, no formal appeal mechanism to question these decisions exists for reconstruction aid. [22]
116. In addition to the MHC, NGOs exercise wide discretion, which can result either in special attention to minorities, or to inattention to or marginalisation of them. If an NGO refuses to include a minority community into their beneficiary assessment, as European Perspective did with the Kosovo Serb community in Fushë Kosovë/Kosovo Polje [23] , then the minority community is not included in the list for consideration by the MHC (unless the LCO puts the applicant forward) and possesses no option for appeal. No formalised mechanism exists for UNMIK to hold NGOs accountable or ensure sufficient transparency.
117. It also should be noted that other provisions of the Guidelines impede the ability of minorities from equally realising their property rights. Roma, Ashkaelia and Egyptians have particular difficulty taking advantage of reconstruction aid due to their lack of documentation establishing their property rights.
118. In sum, the lack of accountability and transparency, and the absence of binding guidelines which ensure minority inclusion have resulted in the unjustified denial of reconstruction to minorities and other vulnerable individuals by MHCs and implementing NGOs, who both act as agents of the state [24] . Minority awareness is high, yet access and an effective mechanism are absent, thus making it questionable whether minorities are being guaranteed their right to housing as well as their right to due process. Any failure of a MHC to ensure that minorities receive an equitable and proportional share of construction aid without an objective and reasonable justification translates into discrimination in relation to the right to return home and violates UNMIK Regulations. [25] UNMIK and the PISG [26] are obliged to remedy this unlawful interference with the rights of minorities.
119. One of the reasons often cited by UNMIK for their resistance to the establishment of set-aside quotas or targets for minorities is that the scale of minority damage is unknown. [27] Some officials have inferred, thus, that minority damage is not significant in scale. Organisations involved in return issues have ardently advocated for a comprehensive minority damage assessment to be performed, but resource limitations have been cited. However, in February 2002, the UNMIK Housing Directorate (then in Pillar IV) completed a damage assessment in a limited number of selected minority locations. Combined with the results of a previous assessment performed in mid 2001, UNMIK has thus far assessed damage to housing, roads, water systems, electricity, health and education facilities in a total of 48 minority areas comprising of at least 82 minority village or semi-urban neighbourhood locations. [28] This effort constitutes a very important step towards bringing to light the overall levels of damage and destruction in minority areas and potential resource requirements for meeting the reconstruction needs not only of minorities still in their places of origin, but also for the return of minorities who are displaced within and outside of Kosovo.
120. Finally, it should be noted that the size of the overall reconstruction programme [29] is grossly insufficient if one takes into account the reconstruction needs of minority refugees and IDPs, and the orientation of the programme has not yet been adapted to the needs and realities of the minority return and reintegration process.
UNMIK Regulation 2001/17 [30] “On the registration of contracts for the sale of real property in specific geographical areas of Kosovo”
121. During 2001, UNMIK passed a new law to prevent the strategic purchases of minority property by members of the majority. The term “strategic purchase” (or “strategic sale”) refers to a strategy aimed at driving out members of minority communities in certain areas of Kosovo by purchasing their property, often using threats and intimidation, or in some cases simply an inducement through the offering of a price much higher than the market value. Regulation 2001/17 empowers the SRSG to designate special geographic areas of Kosovo in which “all contracts for the sale of residential property located in the designated area shall be registered with the Municipal Administrator prior to court verification.” [31] The UNMIK Municipal Administrator is then under a duty to examine the terms and circumstances of the deal to determine whether it is indicative of a strategic purchase or an induced sale. If it does not bear the traits of such a transaction, the UNMIK Municipal Administrator will register the contract. This contract may then be presented to a court for verification, which is required for the contract to be given legal effect in a future cadastre system.
122. Many concerns exist about the human rights implications of any restriction of property sales between members of different ethnic groups. [32] The regulation itself effectively violates individual rights of both the minority and the majority to engage in transactions of private property. It is a stop-gap measure which was seen by its proponents to be necessary due to the fact that the authorities have been unable to address the fundamental causes (namely, insecurity and impunity), behind the phenomenon of strategic purchases and induced sales which place pressure on minorities to leave Kosovo. But notwithstanding the legitimate and serious problems created for minorities subject to pressures to sell property, the particular impact of the regulation on the individual minority owner is the de facto creation of an obstacle to the exercise of a personal decision to depart Kosovo, [33] which in turn compromises the right to choose one’s place residence and the right to seek asylum. The curtailing of an individual’s ability to depart Kosovo has the potential to have a particularly detrimental effect on those minorities who face insecurity or threats to their person or livelihood assets and who wish to leave a generally hostile environment in order to improve their circumstances and safeguard their rights. [34] In addition to the problematic nature of the regulation from a human rights perspective, the major concern we address below is the improper application of the regulation, resulting in a lack of uniformity and arbitrariness in implementation manifested both by the courts and the municipalities during the reporting period.
123. In Gjilan/Gnjilane region, the publication of the UNMIK Regulation 2001/17 in August 2001 created confusion, and as a result the Gjilan/Gnjilane Court stopped registering inter-ethnic sales although no specific geographical areas had yet been designated and therefore the Regulation should not yet have been put into practice. Eventually, the UNMIK Municipal Administrator officially rectified the mistake by informing the Court, which thereafter started again to register inter-ethnic sales. OSCE explained the mechanism to local communities, in particular to minorities. In Viti/Vitina, a similar situation arose in September 2001 when the UNMIK Municipal Administrator decided to register inter-ethnic sales, arbitrarily, since the SRSG had not designated any specific area; indeed, the administration went one step further and arbitrarily imposed minimum prices for each minority property to be sold. [35] Similarly to Viti/Vitina, UNMIK Municipal Administrators in Prizren and Shtime/Štimlje instituted their own versions of the regulation, even though the towns were not designated by the SRSG. These municipalities have no legal basis to impose a condition on registration of contracts.
124. In Mitrovicë/Mitrovica, Vushtrri/Vucitrn, and Gjilan/Gnjilane, the municipal courts ceased to verify contracts for the inter-ethnic sale of property after the Regulation was passed, but prior to the SRSG designating any geographic areas where the registration is required. The judges in Mitrovicë/Mitrovica stated they had received instructions from the Department of Justice to cease verification of inter-ethnic contracts until further notice. Eventually the UNMIK Municipal Administrators were able to convince the courts to resume the verification of contracts pending an SRSG designation. The misinterpretation of the statute by these courts temporarily curtailed individual property rights without a legal basis.
125. The SRSG designated Pejë/Pec, Fushë Kosovë/Kosovo Polje, and Obiliq/Obilic as areas that require contracts for the inter-ethnic sale of property to be registered. Through the Administrative Direction 2001/16 of 19 October 2001, in Pejë/Pec only nine contracts had been submitted to the UNMIK Municipal Administrator by the 7 March 2002, while the court president commented that “a lot” of interethnic sales had taken place. In Fushë Kosovë/Kosovo Polje and Obiliq/Obilic, numbers concerning the departure of Kosovo Serbs indicates a greater number of properties were exchanged than contracts submitted for registration. It is possible that the courts are unaware, or choosing not to follow the regulation’s directives. It is also possible that individuals are participating in so-called “informal transactions” outside the state system.
126. Another illustrative example is the case of the Serb-inhabited villages of Prishtinë/Priština Rural North. After 19 October 2001, when the Administrative Direction was endorsed designating these villages as subject to the regulation, inter-ethnic sales should have been reviewed and analysed by the UNMIK Municipal Administrator prior to court verification. However, between late October 2001 and the end of March 2002, Kosovo Serb houses were sold to Kosovo Albanians in the villages of Devet Jugovica, Besinje and Lebane, with the Serbs departing to Serbia proper. Many of these transactions appeared to bear the characteristics of “strategic purchase”, with Kosovo Albanians initially purchasing houses located strategically in the central areas of the village for very good prices, sparking further sales (at lower prices) of neighbouring Serbs, prompted by the breaking of the mono-ethnic “enclave” which had provided the perception of local security for Serb inhabitants. In the previous reporting period, the Serb population figures in the Prishtinë/Priština Rural North villages were stable, with little indication of intentions to sell and leave Kosovo. The trend of inter-ethnic sales in Prishtinë/Priština Rural North was first noted in Devet Jugovica, where around 20 properties were sold in mid and late 2001 (before and after the promulgation of the regulation). More recently, sales have increased in Besinje and Lebane. These types of sales may often increase tensions within the community (between families who wish to sell and the larger community who do not wish them to do so [36] ), and in many cases the larger community questions why the Regulation is not enforced. In the case of Prishtinë/Priština Rural North, the community at large has not expressed a common interest – that is, most families are beginning to consider selling. According to the UNMIK Local Community Officer covering this area, an element of coercion may have played a role in the case of some sales in some villages, while alternatively, the increasing willingness of families as of late to sell may generally reflect the accumulation of experience, and loss of hope, after almost three years of difficult security conditions. These sales took place without review by the UNMIK Municipal Administrator (due to the fact no contract has ever been submitted for authorisation), and it was determined that the transactions were registered by the court, despite the regulation. It is feared that, if the present trend continues, the rural north Serb communities will be irreversably weakened, and may eventually affect all of the northern villages including Gornja and Donja Brnica, heretofore unaffected by property sales.
According to recent statistics cited by UNMIK Pillar II, since the passage of the Regulation, 193 applications for registration of an inter-ethnic sale have been received by UNMIK Municipal Administrators Kosovo-wide, while 25 (13%) of these were rejected (e.g. sales were not authorised for registration). Of the 25 rejected applications, 6 sales were not registered because the sale price offered was well below market value, while 19 sales were not registered on the grounds that sale would significantly compromise minority security in the area. While these figures give a sense of the characteristics of those sales registered, the improper and sometimes arbitrary implementation (or non-implementation) of the regulation makes it difficult to assess the net effects on minorities.
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[1] Property rights are a bundle of rights including the right to own, dispose of and use property. They are recognised under international human rights instruments directly applicable in Kosovo. See for further details, the OSCE reports on the Property Situation, January 2001 and February 2002.
[2] UNMIK Regulation 1999/23, “On the Establishment of the Housing and Property Directorate and the Housing and Property Claims Commission”, promulgated 15 November 1999. See also UNMIK Regulation 2000/60: “On Residential Property Claims and the Rules of Procedure and Evidence of the Housing and Property Director and the Housing and Property Claims Commission”, promulgated 31 October 2000, and UNMIK Regulation 2000/60-Clarification, “Clarification by the Special Representative of the Secretary-General of UNMIK Regulation 2000/60 of 31 October 2000 On Residential Property Claims and the Rules of Procedure and Evidence of the Housing and Property Directorate and the Housing and Property Claims Commission,” issued on 12 April 2001.
[3] Section 1.2, UNMIK Regulation 1999/23.
[4] As only one vehicle is available.
[5] Minority claimants who do not file their claims by the deadline of 31 December 2002 will have lost their ability to exercise their property rights using the HPD mechanism.
[6] Norwegian Refugee Council recounted a recent instance where the Head of Office drove HPD Pejë/Pec staff to Prizren region enclaves to collect claims.
[7] According to HPD Pejë/Pec, 8 March 2002.
[8] Source HPD, as of mid April 2002.
[9] Source HPD.
[10] IDPs from Pejë/Pec region constitute about 70% of the IDPs in Montenegro, and 26.5% of the total illegal occupancies, with approximately 15,000 residences illegally occupied. The figure is based on IDPs both inside and outside Kosovo. Of these 15,000, HPD estimates that 5,000 will be resolved through the sale of the residences, still leaving 10,000 cases of illegal occupation in the Pejë/Pec region.
[11] This has emerged as a particular problem for Roma, Ashkaelia and Egyptians. The section on RAE in the chapter on the situation of specific minority communities describes this problem in detail.
[12] Specifically, the RAE area of Hogosht/Ogoste in Kamenicë/Kamenica, the Roma area of Abdullah Presheva Mahala in Gjilan/Gnjilane and the ethnic Croat village of Letnicë/Letnica in Viti/Vitina. In some cases HPD actually evicted illegal occupants (Abdullah Presheva and Letnicë/Letnica). However, HPD acknowledges its general incapacity to protect efficiently properties placed under its administration. In Letnicë/Letnica, abandoned housing have been occupied after HPD placed them under its administration (after January 2002). In Hogosht/Ogoste, Roma vacated properties have been damaged and/or occupied recently, although they have been under HPD investigation/administration for months. In Abdullah Presheva, following the eviction of its illegal occupant in March 2002, a property under HPD administration was set on fire. These examples show clearly that although HPD placed properties under its administration and evicted illegal occupants, HPD failed to protect the same properties from damages and break-ins. Evicting and placing under HPD jurisdiction properties is necessary but not sufficient. Authorities must ensure that properties are safe from re-occupation, damages and trespass.
[13] See Article 6 ECHR.
[14] See UNMIK Regulation 1999/23.
[15] Scollo v. Italy, 1995 Series A No. 315C; and Hornsby v. Greece, Judgement of March 1997.
[16] “On construction in Kosovo”, also known as Rexhep Luci regulation on construction.
[17] Section 3.1, UNMIK Regulation 2000/53.
[18] Some individual donors of reconstruction, such as EAR, provided instructions to their implementing partners on minority allocation which were more favourable to minorities than the UNMIK guidelines.
[19] 4.2% represents 360 minority beneficiaries out of a total of 8,543 houses reconstructed in 2001.
[20] These were Kamenicë/Kamenica, Viti/Vitina and Novo Bërdë/Novo Brdo in the Gjilan/Gnjilane region, Zvecan/Zveçan in the Mitrovicë/Mitrovica region, Istog/Istok in the Pejë/Pec region, and Fushe Kosovë/Kosovo Polje in the Prishtinë/Priština region.
[21] Houses are categorised by UNHCR according to levels of damages. Category IV corresponds to serious (40–60 %) requiring major repair/reconstruction while category V designates destroyed houses (60–100%), which require full reconstruction.
[22] Implementing partners, moreover, often fail to include minorities, and lack any accountability to potential beneficiaries.
[23] The implementing partner, European Perspective refused to include Kosovo Serbs even if two names were proposed. The representative argued that he did not want to break down houses for minorities into different ethnic groups. Thus, four houses were rebuilt for Ashkaelia community at the same time.
[24] See note 52.
[25] Section 2, Paragraph 1, UNMIK Regulation 2000/45 “On self – government of municipalities in Kosovo” and Section 2, UNMIK Regulation 1999/1 “On the authority of the interim administration in Kosovo” obliging municipal bodies and officials undertaking public duties to refrain from discrimination and to ensure that all inhabitants enjoy all rights and privileges without distinction.
[26] Reconstruction now falls under the responsibility of the Housing and Construction Division of the Ministry of Environment and Spatial Planning.
[27] The scale and scope of damage during the conflict period of March – June 1999, which mostly affected Kosovo Albanian housing was established through a Kosovo-wide damage assessment, and formed the basis for the development of the UNMIK Reconstruction Programmes of 2000 and 2001.
[28] These assessments were performed at the request of the JCR Steering Committee, in relation to minority return planning. Resources to conduct the assessment were provided by the European Agency for Reconstruction (EAR).
[29] The 2002 programme is not expected to exceed a total of 4,000 housing units to be distributed Kosovo-wide, and indeed as of the writing of this report, donors had only made commitments for a total of approximately 2,700 units. Indeed, some municipalities will be excluded altogether from the 2002 programme, with the implication for minorities, including returnees, in those municipalities who will have no possibility even to apply for aid and would have to rely upon the special design and funding of separate projects under the rubric of return and reintegration.
[30] UNMIK/REG/2001/17; 22 August 2001.
[31] On 22 August 2001, the SRSG signed UNMIK Regulation 2001/17 “On the registration of contracts for the sale of real property in specific geographical areas of Kosovo”. On 19 October 2001, almost two months later, Administrative Direction 2001/16 was endorsed, designating specific areas in Prishtinë/Priština, Fushe Kosovë/Kosovo Polje, Lipjan/Lipljan, Obiliq/Obilic, Pejë/Pec, Rahovec/Orahovac, and Dragash/Dragaš municipalities. On 28 February 2002, under Administrative Direction 2002/4, the SRSG designated further specific geographical areas in the municipalities of Gjilan/Gnjilane, Novobërdë/Novo Brdo, Kamenicë/Kamenica and Viti/Vitina. The issuance of these directions allowed the regulation to become operational in the respective municipalities. The list of specific geographical areas designated in the four municipalities corresponds de facto to the list of minorities’ areas in these municipalities. The location of the property is the main criteria to register sales of real estate according to UNMIK Regulation 2001/17.
[32] An analysis of the rights aspects of the Regulation can be found in Special Report No. 5 of the Ombudsperson Institution in Kosovo dated 29 October 2001.
[33] By restricting the right to dispose of one’s property (Article 1, para. 1, ECHR)
[34] Art. 12 of ICCPR; Art. 2 Protocol 4 of ECHR; Principle 14 of Guiding Principles on Internal Displacement.
[35] Depending on the location and the shape of the property.
[36] For example, the sale of a Kosovo Serb property to an Albanian in Staro Gracko/Starograckë (Lipjan/Lipljan) in early 2002 resulted in protest by members of the Kosovo Serb village population, and the Serb seller was reportedly beaten by other community members who resented the sale.