Untitled - European Parliament

DIRECTORATE GENERAL FOR INTERNAL POLICIES

POLICY DEPARTMENT C: CITIZENS RIGHTS AND CONSTITUTIONAL AFFAIRS

PETITIONS

Private properties issues following the regional conflict

in Bosnia and Herzegovina, Croatia and Kosovo

STUDY

Abstract The conflict or war in former Yugoslavia had profound humanitarian consequences, amongst others a massive displacement of the population, which lies at the basis of property issues resulting from this conflict. The legal questions at European and national level related to such issues together with the enforcement mechanisms and implementation problems have been analysed in order to give an overview of the situation in Bosnia and Herzegovina, Croatia and Kosovo.

PE 419.632 EN

Policy Department C: Citizens Rights and Constitutional Affairs __________________________________________________________________________________________

This document was requested by the European Parliament's Committee on Petitions. AUTHOR(S) Michaela Salamun, Tatjana Josipović, Meliha Povlakić, Evis Halili (Baholli) Graz University RESPONSIBLE ADMINISTRATOR Ms Claire GENTA Policy Department Citizens rights and constitutional affairs European Parliament B-1047 Brussels E-mail: [email protected] LINGUISTIC VERSIONS Original: EN Translation: FR ABOUT THE EDITOR To contact the Policy Department or to subscribe to its monthly newsletter please write to: [email protected] Manuscript completed in March 2010. Brussels, © European Parliament, 2010. This document is available on the Internet at: http://www.europarl.europa.eu/studies DISCLAIMER The opinions expressed in this document are the sole responsibility of the author and do not necessarily represent the official position of the European Parliament. Reproduction and translation for non-commercial purposes are authorized, provided the source is acknowledged and the publisher is given prior notice and sent a copy.

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Private properties issues following the regional conflict in Bosnia and Herzegovina, Croatia and Kosovo __________________________________________________________________________________________

CONTENTS LIST OF ABBREVIATIONS 8

FOREWORD 9

1. INTRODUCTION 20

PART ONE – INTERNATIONAL LAW AND THE ROLE OF THE EU 21

CHAPTER 1 – ENTAILMENTS OF THE RULES OF INTERNATIONAL LAW 21

1. RULES AND PRINCIPLES OF INTERNATIONAL LAW OR SOFT LAW 21

1.1. International human rights law 21 1.2. Other international law 31

2. ROLE PLAYED BY INTERNATIONAL ORGANISATIONS 37

2.1. Council of Europe 37 2.2. Organisation for Security and Co-operation in Europe 38 2.3. European Union 39 2.4. Other international organisations 43

CHAPTER 2 – THE CONCEIVABLE ROLE OF THE EU 44

1. EUROPEAN LAW AND THE CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION 44

1.1. A negative competence of the Community? 44 1.2. European economic law 47 1.3. Fundamental Rights 50 1.4. Compensation resulting from the prohibition of discrimination and the free

movement of services 54 1.5. EU/Stabilisation and Association Process 54

2. POSSIBLE ACTION OF THE EU 58

PART TWO – PRIVATE PROPERTY ISSUES IN BOSNIA AND HERZEGOVINA, CROATIA AND KOSOVO 60

CHAPTER 1 –BOSNIA AND HERZEGOVINA 60

1. OVERVIEW OF PROPERTIES TO BE SUBJECT OF RESTITUTION 60

1.1. General situation 60 1.2. Kinds of properties 61 1.3. Denationalisation vs. displacement/occupation of abandoned properties

in the regional conflict 62 1.4. Specific problems related to the land register/cadastre 65 1.5. Estimation of financial value 66

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2. ENTAILMENTS OF THE RULES OF INTERNATIONAL LAW 67

2.1. Rules and principles of international law 67 2.2. The role played by international organisations 68

3. ANALYSIS OF THE LEGAL AND ADMINISTRATIVE SYSTEM 69

3.1. Legal framework 69 3.2. Administrative procedures 80

4. FINANCIAL CONSEQUENCES OF RESTITUTIONS/ COMPENSATIONS 86

4.1. Official statistics and state budget 86 4.2. Financial estimations by international organisations and interest groups 87 4.3. Economic and social consequences of restitutions/ compensations 88

CHAPTER 2 –CROATIA 91

1. OVERVIEW OF SITUATION OF PROPERTIES TO BE SUBJECT OF RESTITUTION 91

1.1. General situation 91 1.2. Kinds of properties 92 1.3. Denationalisation vs. displacement/occupation of abandoned properties

in the regional conflict 92 1.4. Specific problems related to the land register/cadastre 93




3.1. Legal framework 94 3.2. Administrative procedures 105


CHAPTER 3 –KOSOVO 109

1. OVERVIEW OF SITUATION OF PROPERTIES TO BE SUBJECT OF RESTITUTION 109

1.1. General situation and historical background 109 1.2. Kinds of properties 112 1.3. Denationalisation vs. displacement/occupation of abandoned properties

in the regional conflict 112 1.4. Specific problems related to the land register/cadastre 115 1.5. Estimation of financial value 116



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3.1. Legal Framework 121 3.2. Administrative procedures 129


4.1. Official statistics and state budget 137 4.2. Estimations by international organisations and interest groups 137 4.3. Economic and social consequences of restitutions/ compensations 139

CONCLUSIONS AND RECOMMENDATIONS 141

1. DEFINITIONS OF REPARATION, RESTITUTION, COMPENSATION, SATISFACTION IN INTERNATIONAL LAW 148

2. PRE-ACCESSION ASSISTANCE ENVELOPE FOR 2009-2011 150

3. LIST OF LEGAL ACTS 151

4. BIBLIOGRAPHY 158

REFERENCES 165

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LIST OF ABBREVIATIONS BiH Bosnia and Herzegovina CMW International Convention on the Protection of the Rights of All Migrant Workers

and Members of Their Families CAT Convention Against Torture and Other Cruel, Inhumane or Degrading

Treatment or Punishment CRC International Convention on the Rights of the Child DPA Dayton Peace Agreement ECHR European Convention on Human Rights ECtHR European Court of Human Rights ECJ European Court of Justice EP European Parliament EULEX European Union Rule of Law Mission in Kosovo EUSR EU Special Representative EXCOM Executive Committee of the UNHCR FRY Federal Republic of Yugoslavia GA General Assembly HR High Representative HRC Human Rights Committee ICC International Criminal Court ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights ICJ International Court of Justice ICR International Civilian Representative for Kosovo ICTY International Tribunal for the Prosecution of persons Responsible for Serious

Violations of Humanitarian Law Committed in the Territory of the Former Yugoslavia

IDPs internally displaced persons ILC International Law Commission ILO International Labour Organisation IO international organisation NGO nongovernmental organisation OHR Office of the High Representative OSCE Organisation for Security and Co-operation in Europe PISG Provisional Institutions of Self-Government SAA Stabilisation and Association Agreement SAP Stabilisation and Association Process SC Security Council SFRY Socialist Federal Republic of Yugoslavia SRSG Special Representative of the Secretary General TEC Treaty establishing the European Community TFEU Treaty on the Functioning of the European Union TEU Treaty on European Union UDHR Universal Declaration of Human Rights UNHCR United Nations High Commissioner for Refugees UNMIK United Nations Interim Administration Mission in Kosovo

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Foreword

The present research deals with private properties issues in Romania, Bulgaria and the Western Balkans. It consists of two studies: the first one has the title “Private properties issues following the change of political regime in former socialist or communist countries” (Albania, Bosnia and Herzegovina, Bulgaria, Croatia, Romania and Serbia) and the second one has the title “Private properties issues following the regional conflict” (Bosnia and Herzegovina, Croatia and Kosovo).

The aim of the first study is to analyse the transformations that occurred in the area of private property ownership following the change of political regime in former socialist or communist countries. The six countries looked at are: Albania, Bosnia and Herzegovina, Bulgaria, Croatia, Romania and Serbia. These countries illustrate well the whole range of contentious problems in a region where the Communist regimes have varied tremendously in their approach to private property, intensity of social control, repression and overall legitimacy. This diversity of situations poses today different types of dilemmas for the property restitution process, dilemmas which are approached by each country in a different manner.

The second study - besides sketching out the legal background of international and EU law for property restitution/compensation in the context of the conflict or war in former Yugoslavia - deals with the effects of this conflict in terms of the property issues arising from it; it covers Bosnia and Herzegovina, Croatia and Kosovo. In a civil war or regional conflict, like the one in former Yugoslavia, the members of an ethnic group may be dispossessed by the ‘winners’ and forced to leave their property or may leave for fear of reprisals; both ways result in ethnic cleansing. In the post-conflict phase property restitution/compensation has become a crucial component of the return of internally displaced persons to their homes of origin.

The main question for the countries in both studies is how an emerging democracy can “respond to public demands for redress of the legitimate grievances of some without creating new injustices for others.”1 Moreover, property rights and transparency represent the very bases of a functioning market economy: Each of the countries faces the difficult task of finding a balance between remedying violations of property rights and guaranteeing a functioning land market, which enables or will enable full freedom of movement of capital in the EU.

1 Solomon, R.H., ‘Preface’, p. xv.

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EXECUTIVE SUMMARY Background

The conflict or war in former Yugoslavia had profound humanitarian consequences, amongst others a massive displacement of the population, which lies at the basis of property issues resulting from this conflict. Thus during the conflict in Bosnia and Herzegovina (hereinafter: BiH)2 an estimated number of 2.2 million persons left their pre-war homes. In the moment the conflict ended more than half of the pre-war population of BiH fell either into the category of refugee or displaced person and was deprived of their real estates and pre-war homes. Similarly, in Kosovo during the armed conflict/war in 1999, out of a population estimated in 1998 1.7 - 2.2 million persons, more than 850,000 Kosovo Albanians left Kosovo (though an estimated 750,000 returned soon after) and an estimated 500,000 persons were internally displaced. Meanwhile large numbers of persons from other ethnic communities (mainly Kosovo Serbs and Roma, Ashkali and Egyptians minorities/RAE) fled in fear of reprisals by the Kosovo Albanian population. The March 2004 violent incidents led once again to a forced displacement of members of minority communities in Kosovo. Additionally, several thousand ethnic Albanians remained displaced, mainly from the northern part of the city of Mitrovica, which became an enclave inhabited mainly by ethnic Serbs. The reasons for people leaving their homes were different – some were forcibly displaced due to a politics of so-called “ethnic cleansing”, some fled from active fighting or from circumstances in which the supply, health protection and education were hindered. Moreover, in BiH some people voluntarily left the territory where they constituted a minority changing by legal act their real estate with other persons who for their part had left the territory where they were a minority.3 Both performed this exchange in order to move to the territory where their ethnic group represented a majority. The properties abandoned by IDPs, if not destroyed, frequently were unlawfully occupied by or allocated by public authorities to returnees, whose own homes had been damaged or destroyed during the armed conflict/war. Thereby a “secondary occupation” of abandoned properties took place. The property situation was further complicated by migration from the countryside into urban centres, illegal construction, incompleteness or destruction/removal of the cadastral records and the fact that the process of denationalisation had not been concluded (or not even started as in Kosovo4) before the conflict-related displacement. Furthermore, in Kosovo the discriminatory legislation introduced by the Serbian Government during the 1990s had resulted in forced evictions from homes and a legal prohibition on interethnic property transfers had led to many informal property transactions never verified by a court or recorded in the cadastre. 2 In parts of BiH and in some international documents and judgements this conflict has been considered as an aggression by the former Yugoslav National Army and by the Federal Republic of Yugoslavia, i.e. Republic of Serbia, in other parts of BiH it has been seen as a national conflict or civil war. For the purposes of this study only the neutral term „conflict” will be used. The references for the text in the executive summary can be found in the respective country reports. 3 This legal transfer later became problematic; it was necessary to prove that the exchange had not been performed under pressure.

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Aim

The present study aims to provide an analysis of legal questions related to property issues arising from the regional conflict/war in former Yugoslavia. The first part sketches out the legal framework of international and EU law for property restitution/compensation in this context. The second part comprises country studies on BiH, Croatia and Kosovo, which deal with the national legal and administrative framework as well as with enforcement mechanisms and implementation issues. The main questions the study deals with are:

Is there a right to property restitution/compensation in international law?

What has been and could be the role of the EU in relation to property restitution/compensation following the regional conflict/war in Yugoslavia?

What is the legal and administrative system for property restitution/compensation in BiH, Croatia and Kosovo?

How has this system been implemented?

The first question includes an analysis of what are the relevant provisions in international human rights instruments and how they have been interpreted in decisions by judicial/quasi-judicial international human rights bodies. Also, the question arises what other international law provides regarding property restitution/compensation.

The second question starts out with a discussion of the competency of the EU and the Member States respectively for property issues. It then looks at what are the legal provisions of the Treaty and the Charter of Fundamental Rights as well as soft law that have been/or could be relied on by the ECJ or by the Commission in the Stabilisation and Association process.

The third question deals with the national legislation and administrative bodies that BiH, Croatia and Kosovo have put in place in order to effect property restitution/compensation following the regional conflict/war.

The fourth question tries to evaluate how effective has this legal framework been and what are the main difficulties in its implementation.

The first part of this study analyses the provisions of international human rights law and other international law on property restitution/compensation as well as the provisions of EC law applicable to property rights.

The second part of this study analyses the national legal and administrative systems in BiH, Croatia and Kosovo dealing with property restitution/compensation.

In doing so, this study also looks at implementation problems and financial consequences of restitution/compensation.

Property restitution/compensation in international law and in EC law

There is no general consensus on whether there exists a right to property restitution/compensation in international law. However, restitution/compensation can result from the violation of several human rights (e.g. the rights to property, equality and housing) of the ECHR, ICCPR, ICESR, CERD, CEDAW, CRC and other international agreements. Thus the ECtHR has dealt with restitution/compensation claims under different articles of the ECHR (mainly the right to property in Art. 1 Protocol No. 1 and the right to a fair trial in Art. 6 ECHR, while many cases were rejected due to lack of ratione temporis). So has the UN HRC under the right to equality in Art. 26 ICCPR. In addition, the UN HRC, the ICESR Committee, the CERD Committee as well as the CRC

4 However, legislation on restitution/compensation enacted following the regional conflict/war tried not to interfere with denationalisation. This means that no ownership titles on state or socially owned properties were given.

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Committee have adopted Concluding Observations/Recommendations relating to property restitution.

Moreover, other country-specific or refugee and IDP-related international law also deals with property restitution/compensation: international humanitarian and criminal law, hard and soft law relating to return (e.g. for BiH the 1995 Dayton Peace Agreement, for Croatia the 1995 Erdut Agreement and for Kosovo the 1999 draft Interim Agreement for Peace and Self-Government in Kosovo (hereinafter: Rambouillet Accord as well as Annex G of the Agreement on Succession Issues signed in 2001 by Bosnia and Herzegovina, the Republic of Croatia, the Republic of Macedonia, the Republic of Slovenia and the FRY) as well as the Settlement Proposal (hereinafter: Ahtisaari Plan)), relevant GA and SC resolutions, the 2005 UN Principles on Housing and Property Restitution for Refugees and IDPs (Pinheiro Principles) as well as soft law on a remedy for grave violations of human rights and humanitarian law (e.g. the 2005 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law).

International organisations, such as the Council of Europe, the OSCE and the UNHCR, have dealt with property issues following the Yugoslav conflict/war through their bodies. The EU has been involved mainly through instruments of the enlargement process and the SAP.

There is no provision in EC law explicitly conferring the competency for property restitution or immovable property on the Community. Art. 345 TFEU does not completely abolish Community competence in this field. Rather, the national legislator needs to observe the fundamental rules of the Treaty, in particular the prohibition of discrimination on the grounds of nationality (Art 18 TFEU), the basic freedoms and the rules on competition. Thus rights of nationals of other Member States to acquire real property may be derived from the basic freedoms as well as the principle of non-discrimination. The right to property as such has been based on ex-Art. 6, para. 2 TEU (new Art. 6, paras. 2, 3 TEU). Moreover, the Community can restrict private property in order to achieve important Community goals. Mainly the rights to property, to equality and non-discrimination and to an effective remedy and to a fair trial provided in the Charter of Fundamental Rights may be affected in cases concerning immovable property issues. Fundamental rights must be respected by the EU and Member States when they implement EU law. It follows from this that, for instance, Member States may not change national legislation on restitution in a way that does not account for the principle of legitimate expectations, i.e. the trust of citizens in the continuity of the legal positions created by the legislator, by virtue of which the owners are able to make use of their property.

KEY FINDINGS

Bosnia and Herzegovina

The legal framework for property encompasses the war-legislation from 1992 onwards (legislation on “abandoned” property) and the post-war legislation from 1998 (legislation on restitution/compensation).

The legislation regulating the deprivation of “abandoned” property and its allocation to new users was in general discriminatory in the entire BiH and represented a violation of basic human rights. The provision on the loss of the occupancy right by non-use (Art. 47, para. 1 Law on Housing Relations) was broadly misused during the conflict allowing the local authorities to declare empty apartments as abandoned and to re-allocate them. As his/her occupancy right ceased to exist by non-use, the pre-war occupancy right holder was precluded from the right to buy the apartment in the privatisation process after the conflict.

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A turning point represented the DPA and Annex 7 to DPA, which provided on the national level the right of refugees and displaced persons to return to their pre-war housings. This right included also the right to repossess their properties or to be compensated when the restitution was not possible. But the legislation on restitution/compensation mainly was not enacted in both entities until 1998. That meant that the competent authorities were further implementing war-legislation and could declare some property abandoned and reallocated even during 1996 and 1997, in flagrant violation of Annex 7.

There is no official estimation of the current financial value of the targeted property. The two crucial problems are: First, there is no relevant database about the targeted property. Second, there is no methodology for the evaluation of the prices for immovable property fixed by the legislator.

Annex G to the Agreement on Succession, to which also Croatia is a party, deals with property issues; it declares all legal transfers effected after 31 December 1990 under pressure null and void. However, this is not time-barred and the claim can be filed also by a third party. This can cause legal uncertainty. A much better solution would be a provision stipulating that all legal transactions are valid, unless the claim on annulation is filed until a certain date, furthermore providing for the claim to be registered in the land registry and/or other respective registry. It is very important to protect third bona fide parties acquiring certain rights without knowledge about the invalidity of the legal transaction.

The OHR played a very important role in protecting persons having occupancy rights and rights of use by imposing the appropriate norms. The Human Rights Chamber also played a hugely positive role and, after 2004, the Constitutional Court BiH as well – the occupancy right and rights of use of the socially-owned real estate were protected as rights to a home.

Relating to the property issues of displaced persons and refugees, the international community now follows an exit strategy in BiH, which is highly dangerous. The responsibility for these issues was transferred to the national authorities of BiH. It is very questionable whether the national institutions are able to play the same successful role in the process of returns and restitution. There are no internal resources for the accomplishment of this task.

Croatia

Since the termination of the regional conflict in Croatia in 1995, a complex legal framework has been adopted, which includes legislation on “abandoned” property and subsequently legislation on restitution/compensation.

The legislation on “abandoned” property (Temporary Takeover and Management of Property Act of 1995) concerned abandoned immovable property whose owners had ceased using it, with the goal of the takeover to ensure temporary housing for people displaced by the war, who as ‘temporary users’ were not entitled to dispose of the property. Persons who had abandoned their immovable property still continued to be the owners of such property. Therefore, their rights to request its restitution never ceased to exist. However, the Act e.g. did not lay down the time limit in which equivalent immovable property had to be provided for the temporary user. Therefore, despite the fact that his/her property had formally been returned, the original owner could not realise his/her ownership rights regarding repossession and use of such property.

The legislation on restitution/compensation (Act on Termination of the Takeover Act of 1998) laid down the Programme of Return and Care for Displaced Persons, Refugees and Exilees (1998), enabling the owners of immovable property in Croatia with Croatian citizenship to apply to municipal housing commissions for repossession of temporarily occupied property. A temporary user was entitled to alternative accommodation, which had to be offered in the

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decision annulling the decision on temporary use. All persons who before and after their return to Croatia had owned a house or a flat and who could not expeditiously repossess them had to be compensated in accordance with the current market prices, though the Programme e.g. failed to prescribe the time limits within which the compensation was to be paid.

The 2000 and 2002 Amendments of the Act on Areas of Special State Concern (1996, replaced in 2008) provided that such areas were established, among other things, for the sake of the speedy return of the population that used to live there prior to the homeland war. The Amendments expressly provided for the return of temporarily transferred property and excluded the possibility of it being transferred to other persons.

The right to reconstruction of destroyed and damaged private property (Act on Reconstruction amended in 2000) was acquired by the owners and co-owners of houses and protected tenants in flats, as well as the owners of other destroyed or damaged assets who were citizens of Croatia, as well as persons who in 1991 resided in Croatia. The scope of that right depended on the level of damage. The value obtained for reconstruction was also relevant for the level of compensation for damage that the owners claimed for their destroyed and damaged property.

Regarding administrative procedures, amendments to the Act on Areas of Special State Concern (2000, 2002) established a new system of return of the temporarily transferred property, according to which competent state bodies were obliged ex officio to render corresponding decisions on the return of the occupied immovable property to their original owners’ possession. A significant step forward was the fact that the State Prosecution Office also became involved in the proceedings for return or eviction after the decision on temporary use had been annulled.

The problems which continue to exist with regard to the return of temporarily transferred property to their original owners are primarily connected with lengthy and complex administrative and court proceedings.

The problems in the resolution of private property issues following the regional conflict at both, the legislation and implementation level, mainly arise from the fact that these are very complex and delicate issues whose settlement requires a compromise between different constitutionally guaranteed rights, such as the right to free enjoyment of private property, the protection of the acquired rights, the right to compensation for limited ownership, the right to a home and a housing programme, social justice, rule of law, equality, and the like. These problems mostly emerge in proceedings where the return of the temporarily taken property to its owners involves temporary users who have not been provided with temporary accommodation within housing programmes. However, the right of original owners to request repossession may be exercised only when temporary users have been given at least some interim accommodation. The dynamics of repossession is thus determined by the dynamics of housing programmes for those who temporarily use them. It is mostly not determined by the existing legislation, but by national economic capacity.

Croatian citizenship is not a precondition for the realisation of the right to reconstruction, the right to obtain the return of the occupied property and the right to be included in the housing program.

Croatia has up to date invested 38 billion Kunas of budget funds into programs for the return of refugees – the reconstruction of housing and infrastructure, the return of property, housing plans and refugee welfare. To date more than 145.000 houses and apartments valued at 16 billion Kunas have been reconstructed using budgetary funds.

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The OSCE has played a very important role for the implementation of the housing care programs.

Kosovo

Since the end of the armed conflict/war in 1999, the temporary administration/allocation of abandoned properties and restitution/compensation have been carried out in parallel. They were regulated different UNMIK Regulations, mainly in Regulations 1999/23, 2000/60, 2006/10 and 2006/50.

The legislation regulating property issues and the applicable law in general is quite complex: Property related legislation derives from different periods of the socialist-era, the period of ethnic discrimination (1989-1999), the period of UNMIK and the period of post-independence.

The primary source of the right of displaced persons and refugees to return home is SC Resolution 1244, which, however, did not explicitly integrate the right to property restitution into its text. The new Constitution of Kosovo obliges the Kosovo state authorities to promote and facilitate the safe and dignified return of refugees and IDPs and to assist them in recovering their property and possession (Art. 156).

The administration/allocation and rental of abandoned properties aimed to provide people in need of humanitarian accommodation with temporary housing solutions, while at the same time protecting the legal status of owners of vacated properties in order to encourage returns.

The restitution /compensation process dealt with properties (in terms of ownership and occupancy rights) affected by the armed conflict/war and aimed to restore the status quo to what it had been before. Additionally, it aimed to remedy discriminatory laws and policies of the Milošević regime.

The authority to handle administration/allocation and restitution/compensation of properties was given initially to the Housing and Property Directorate (HPD), an administrative body, and the Housing and Property Claims Commission (HPCC) with exclusive jurisdiction to adjudicate the property claims referred to it by the HPD. They were succeeded by Kosovo Property Agency (KPA) and Kosovo Property Claims Commission (KPCC).

Initially, only residential property and the property associated to it was subject to regulation. Only later, in 2006, private agricultural and commercial property became the subject of the restitution/compensation.

No official estimation has been made with regard to the current financial value of the targeted properties subject to restitution/compensation. Moreover, the legislator has adopted no methodology so far for the evaluation of the market value (prices/m2) of immovable properties with relevance to different regions in Kosovo.

The restitution/compensation process in post-war Kosovo has been one of the most expensive processes the UN and international community has ever undertaken. However, the process has shown that the resolution of property claims presents only the first phase in restoring property rights. The second phase of the restitution/compensation process would require that the remedies awarded are carefully adapted and implemented. The resolution of property claims does not necessarily imply the return of displaced persons.

The IDPs presence across the region remains one of the key unresolved consequences of the Kosovo war. The mechanism did not benefit landless Kosovo RAE individuals, who were left without a possibility to exercise their right to return home. A re-registration of all IDPs would give a more transparent and accurate picture on returns and would foster the policy of substantive and durable solutions.

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Main Recommendations This study has analysed property restitution following the regional conflict/war in Yugoslavia from the perspective of international and EC law as well as from the national legislation of BiH, Croatia and Kosovo. A selection of recommendations for MEPs and other EU policy makers who might consider their political feasibility (but also for national policy makers) is given here, while the complete version can be found at the closing section of this study.

International/EU

The EU plays an important role in reconstruction and institution building in the Western Balkan countries through its external aid programmes. Since 1991 € 6.8 billion have been committed to the Western Balkans through various assistance programmes.

Such continued assistance by the EU which is linked to conditionality within the SAP is essential for capacity building and anti-corruption, which will eventually lead to a functioning land market based on the rule of law. The Bonn-powers of the High Representative/EUSR in BiH and the special powers of EULEX KOSOVO in Kosovo enable the conditioning of aid to concrete instances of progress.

Restitution should be the first solution and compensation awarded only, where restitution is not possible. Restitution should not be considered impossible, if property acquisition was not bona fide. Secondary occupants with legally valid claims on acquired rights should be taken into account, at least with the provision of some form of compensation and/or of alternative accommodation. Restitution claims should extend to heirs of property as well as non-citizens and non-residents.

Art. 345 TFEU does not preclude a Community competence for property law. On the contrary, it is conceivable that the Community goal of a functioning market economy allows for regulation of the land market and thus for certain restrictions on private property in Member States, in aiming to achieve a greater degree of security of tenure.

The following legislative acts and informal coordination actions could improve property issues and thus contribute to a functioning land market:

Establishing Land information systems (LIS) in the States showing different layers of owners and competing claims so that disputed properties are identifiable. Especially post-communist or post-conflict States should include also expropriation decisions/expropriations and restitution decisions in this system. An independent body should be involved in collecting, evaluating and storing documentation on unlawful expropriations.

Making these systems accessible to citizens from all Member States. This has been started with the European Land Information Service (EULIS), which provides direct access to official land registers in Europe. So far participating countries are Austria, England and Wales, Ireland, Lithuania, the Netherlands, Norway and Sweden. However, land registries usually do not show (pending) competing claims.

Establishing a database with legal information on how ownership or title is established, standards of proof etc.

National legislation on restitution of nationalised property must correspond with the spirit of the Treaty: Thus the aims of the Union, such as establishing a highly competitive social market economy (Art. 3 TEU), could be seen as determining national legislation on restitution, which, as a result, would need at least to present no obstacles to the development of a functioning land market. A large scale nationalisation of real property in any case would violate Community law, as it would abolish the concept of private property as such and so run counter to the spirit of the Treaty.

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A lack of legal security of tenure for the purchaser of the property may constitute a restriction of the exercise of a fundamental freedom and infringe Community law. Moreover, the freedom of establishment and the principle of non-discrimination require the equal treatment of citizens of other Member States, where national legislation limits restitution of expropriated property to the nationals of the restituting State.


In BiH the most interesting time period relating to restitution of property abandoned during the war was from 1999 until 2003. In this time period the international community, i.e. the High Representative in BiH, imposed, amended and finalised the legislation on restitution (so-called Property Laws) and the Human Rights Chamber for BiH as well the Constitutional Court of BiH set the standards for solving the property issues following the regional conflict. However, some further improvements are possible:

It is necessary to harmonise the legislation on state and entity level, as well as to issue the revised final version of certain legal acts which were repeatedly changed. For the competent authorities it is highly difficult to interpret and implement laws changed several times. An eventual further amendment should obligatorily provide for transitory and concluding provisions in order to avoid any retroactive effect.

If an improvement of the current legal framework or the enactment of new legal acts was necessary and domestic authorities were reluctant to perform it, the High Representative should not hesitate to apply the so-called Bonn-competences. However, for the imposition of laws it is also necessary to have competent support of domestic legal experts in order to avoid discrepancies with the current legal order in BiH.

The exit strategy of the international community in general, but particularly regarding the financial support, has to be reconsidered.

In BiH the finalisation of the transformation process and the reform of the property order should have top priority. The disposal with state-owned property which could be subject to denationalisation should be definitely terminated, but not by a prolongation of the deadline for the temporary prohibition of disposal with this property, but by the final identification of the owner. The preparation of the legislation on denationalisation should be considered as a long-term and very serious project and not as some ad hoc action. The situation, as it has occurred with Property laws, which have not been well prepared so that they had to be frequently and drastically amended, should never be repeated again. Such changes lead to major uncertainty in the highly sensitive property relations.

This research has shown that often official statistics or data were not available. It would be necessary to establish the relevant common data bases on state level (value of target property, number of submitted and realised claims on restitution, assessment of financial consequences etc.).

A more effective mechanism for the implementation of the decisions of the Human Rights Chamber for BiH, Constitutional Court of BiH, and the ECtHR should be established.

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Croatia

Amendments and the adoption of new legislation on property law rights and relationships have undoubtedly been the result of the effort and positive commitment of the Republic of Croatia to simplify and to enhance the resolution of ownership disputes arising from the regional conflict and to extend the protection to all holders of ownership rights, as well as to maintain uniform criteria and uphold the principle of the protection or property rights.

If the need for new legislative solutions continues to exist, it is recommended that a consistent system of legal norms is established, which will enable a systematic and integral resolution of disputed relationships, without frequently made amendments.

Together with the adoption of the amendments to existing legislation, it is recommended that official consolidated texts are published.

The repossession of immovable property by original owners is processed through a very complex network of several proceedings (administrative, judicial and enforcement). Separate legislation does not provide for a separate procedure for administrative and judicial bodies, apart from the express stipulation that the courts must act summarily.5

It would be very useful to consider the possibility of formalising these proceedings in separate legislation in order to speed up the procedure of decision-making (e.g. the rules on legal remedies, on proving relevant facts, on preconditions for the postponement of enforcement, etc.).

For example, a fact that is relevant for the initiation of the proceedings for return is to prove ownership of immovable property. According to the general rule of property law, this fact is proved by an excerpt from the land register or by some other public documents (e.g. deed of inheritance). However, in concrete proceedings, repossession of immovable property is usually requested by individuals who often are no longer in possession of such documents and who cannot prove their ownership, because the respective land register has not been updated. To initiate proceedings with success, they must first initiate separate proceedings to obtain documents by which they can prove ownership.

It would be useful to take a uniform position in such cases and to decide which documents can be used to prove ownership, or to consider the possibility that, in the proceedings for repossession, the issue of ownership be determined prior to the initiation of court proceedings.

It would also be useful to consider whether documents relating to enforcement, in accordance with the Enforcement Act, could be admissible in proceedings for repossession, so that enforcement proceedings could be conducted at the same time (when the necessary preconditions have been fulfilled) on the basis of such documentation, without the need to initiate separate litigation proceedings to obtain an enforcement document.6

Separate legislation governing secondary requests by original owners and temporary users does not expressly set forth how owners and temporary users can realise their subordinate claims in relation to immovable property units which have been temporarily used, such as the request for compensation for the management of immovable property during its temporary use, compensation for possible investments in and on immovable property by the temporary user, and the like (although some issues are regulated in amendments to the AASSC of 2002).

5 Cf. for example Arts. 18/6, 31/4 of the former AASSC – consolidated version. 6 In Art. 21 of the Enforcement Act (Official Gazette NN 57/96, 29/99, 42/00, 173/03, 194/03, 151/04, 88/05, 121/05, 67/08) it is laid down which documents can be considered as enforcement documents. It is expressly stipulated that any document can be considered as an enforcement document if it is so defined by the law.

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It would be very useful to set forth all these issues in an express manner taking into consideration all specific circumstances at the time of the introduction of these special legal relationships relating to temporarily occupied immovable property.

A system should be established to encourage all interested parties to try to resolve their disputes out of court, and by amicable settlements reached in conciliation proceedings in conformity with the Conciliation Act.7

Examples of 'best practice' are evident in the amendments of the AASSC of 2000 and 2002, which were a significant step forward in the organisation of the legal relationship between the original owners, whose property had been given for temporary use in accordance with the TA, and the temporary users of that property.

Kosovo

The process undertaken in Kosovo has shown that the resolution of property claims does not necessarily imply the return of displaced persons. The reality has shown a still high rate of properties that are destroyed (not yet compensated) and a low rate of repossession. IDPs sold their properties during or after the claims process. Moreover, the implementation of final decisions of the HPCC/KPCC throughout Kosovo remains still a major obstacle. Finally, the property rights restitution/compensation mechanism did not benefit landless Kosovo RAE individuals.

Suggestions and recommendations for the restitution/compensation process are offered as follows:

A policy of legal harmonisation and a comprehensive reform of the entire property law sector (and respectively the private law sector) should be conducted and pursued as a priority by the legislator. This would be beneficial to the property rights system in Kosovo and it would help particularly to establish a secure environment for foreign investments.

The legislative reform should consider the revision, amendment and harmonisation of the current land register/cadastre laws in the light of modern European standards, based as much as possible on existing legislation. The property records and cadastral archives (those in Kosovo and the ones removed to Serbia) should be harmonised, in a highly authoritative approach, to make possible the verification of property rights, particularly those of IDPs.

Last but not least the reform should not hesitate to address the problematic of denationalisation or restitution of previously (during socialism) expropriated private property owners. This is a process that almost all former socialist countries of Eastern Europe have been going through and should be not postponed.

The compensation scheme accompanied by a property value estimation method should be finalised, as first adopted by the parliament, and then systematically enforced. Also, the issue of claims relating to destroyed property should be addressed and financial compensation awarded.

There should be a better system for claiming property rights. Any apparent criminal aspect should be referred to the public prosecution office for investigation, and prosecutors should investigate and prosecute criminal offences related e.g. to fraudulent property transactions or property vandalizing in a rigorous and expeditious manner.

With regard to returns, a re-registration of all IDPs should be conducted in joint effort of international and local actors, which would give a more transparent and accurate picture on returns and would foster the policy of substantive and durable solutions. The new database recently established by the Ministry of Communities and Returns should be comprehensively and consequently updated, in order to manage better the IDPs requests.

7 Official Gazette NN 163/03, 79/09.

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1. INTRODUCTION The restitution of property aims to remedy expropriation resulting from any involuntary removal of property. Such removal can take place in different ways: During communist regimes individual property was expropriated through nationalisation/collectivisation and replaced by ownership or control by the state/collective organisations, while in dictatorships or following war those branded as the enemies of the State or as collaborators of the enemy State or nation were dispossessed. Furthermore, in a civil war or regional conflict, like the one in former Yugoslavia, the members of an ethnic group may be dispossessed by the ‘winners’ and forced to leave their property or may leave for fear of reprisals; both ways result in ethnic cleansing.8 Ethnic cleansing also includes the reallocation of property to persons of rival ethnicity who can obstruct the efforts of the former residents to return.

This study deals with the effects of the regional conflict or war in former Yugoslavia in terms of the property issues arising from it in Bosnia and Herzegovina (hereinafter: BiH), Croatia and Kosovo. In the post-conflict phase property restitution has become a crucial component of the return of internally displaced persons (hereinafter: IDPs) to their homes of origin and an “integral response to such displacement-related human rights violations”.9 It is even seen as a pre-condition for the success of the return by the international community.

Restitution is understood as a form of reparations – a legal remedy for victims of violations of international law. From this perspective, refugees and displaced persons are entitled to restitution of the rights they enjoyed over their homes as a legal remedy for the human rights violations that displaced them. Where restitution is barred by circumstances, a secondary form of reparations is compensation, where the perpetrator provides money or other assets equivalent in value and kind to the object of the breach.10 The main question for BiH, Croatia and Kosovo is how an emerging democracy can “respond to public demands for redress of the legitimate grievances of some without creating new injustices for others.”11

Property rights and transparency represent the very bases of a functioning market economy. Each of the countries faces the difficult task of finding a balance between remedying violations of property rights resulting from conflict on the one hand and guaranteeing a functioning land market on the other, which enables or will enable full freedom of movement of capital in the EU.

The first part of the study sketches out the legal background of international and EU law for property restitution/compensation in the context of the conflict or war in former Yugoslavia. The second part comprises country studies on BiH, Croatia and Kosovo, which deal with the national legal and administrative framework as well as enforcement mechanisms and implementation issues. Conclusions and recommendations are added.

8 Grover, R. and Flores-Bórquez, M., ‘Restitution and Land Markets’, p. 1. 9 Williams, R.C., The contemporary right to property restitution in the context of transitional justice, p. 5. 10 Williams, R.C., Post-Conflict Property Restitution in Bosnia: Balancing Reparations and Durable Solutions in the Aftermath of Displacement, p. 4. 11 Solomon, R.H., ‘Preface’, p. xv.

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Part One – INTERNATIONAL LAW AND THE ROLE OF THE EU

Chapter 1 – ENTAILMENTS OF THE RULES OF INTERNATIONAL LAW

1. Rules and principles of international law or soft law There is no general consensus among scholars on whether there exists a right to property restitution/compensation. Some speak of a normative gap12 in the context of displacement and return. Others hold that there is a grey area in international law and recognise an emerging right to land, housing and property restitution, which is gradually gaining recognition13. Nevertheless, human rights law, international humanitarian law and other hard14 and soft15 international law16 do provide certain minimum requirements for property restitution following regional conflict/war.

1.1. International human rights law In international human rights law a right to restitution/compensation is not explicitly provided for, but restitution/compensation can be required to remedy the violation of several human rights. Moreover, if the Court has found a violation of the ECHR, Art. 41 ECHR authorises it to afford, if necessary, just reparation to the injured party, if the internal law of the State concerned allows only partial reparation to be made. The main human rights that may be affected during regional conflict/war are the following ones:17

12 Cohen, R., ‘The Development of International Standards to Protect Internally Displaced Persons’, p. 77; Phuong, C., The international protection of internally displaced persons, p. 64. 13 Bagshaw, S., ‘Property restitution and the development of a normative framework for the internally displaced’, pp. 210, 223; similar Leckie, S., ‘Housing and Property Issues for Refugees and internally displaced persons in the context of return. Key considerations for UNHCR policy and practice’, p. 38; “normative vagueness” Paglione, C., ‘Individual Property Restitution: from Deng to Pinheiro – and the Challenges Ahead’, 395; Carlowitz, L. von, ‘A universal human right of property for refugees and displaced persons? On the development of property-related customary international law by the international administrations in Bosnia and Herzegovina and Kosovo’, p. 5. 14 Hard law encompasses rules of customary international law that are universally binding, conventions (lex lata) binding on the parties, and international case law at least as to the parties to a continuous dispute before the ICJ. de Zayas, A., ‘The Right to One's Homeland, Ethnic-Cleansing and the International Criminal Tribunal in the Former Yugoslavia’, p. 260. 15 Soft law or developing law (lex ferenda) includes declarations, certain resolutions, recommendations and reports of UN organs and other international organisations (hereinafter: IOs); it has persuasive but not binding force. Ibid. 16 Art. 38, para. 1 of the 1946 Statute of the International Court of Justice (hereinafter: ICJ) defines the sources of international law as a) international conventions expressly recognised by the contesting states, b) international custom, as evidence of a general practice accepted as law, c) the general principles of the law recognised by civilised nations and d) judicial decisions and the teachings of the most highly qualified publicists of the various nations as subsidiary means for the determination of rules of law. Moreover, the practice of IOs, as it appears e.g. in the resolutions of the UN Security Council (hereinafter: SC) and the General Assembly (hereinafter: GA), are an additional source of international law. 17 This chapter concentrates on rights contained in the ECHR and the ICCPR, for which there exists jurisprudence of the ECtHR and the UN Human Rights Committee (hereinafter: HRC) respectively. Other conventions, the monitoring system of which is mainly based on state reports, will not be dealt with in detail due to lack of space. Similarly, restitution/compensation after communism falls outside the scope of this study.

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Right to property

o Art. 1, para. 1 Protocol No. 1 ECHR, Art. 5 lit. d(v) CERD, Art. 17 UDHR18

Right to equality

o Art. 1 of Protocol No. 12 ECHR, Art. 14 ECHR, Art. 26 ICCPR, Art. 5 lit. d(v) CERD, Arts. 15, para. 2 and 16, para. 1, lit. h CEDAW, Art. 2, para. 1 CRC

Rights to home and/or housing

o Art. 8 ECHR, Art. 11, para. 1 ICESCR, Art. 17, para. 1 ICCPR, Art. 5 lit. e(iii) CERD, Art. 14, para. 2, lit. h CEDAW, Art. 27 CRC, Art. 43, para. 1, lit. d CMW, Art. 31, para. 1 of 1996 revised European Social Charter and Art. 4 of Additional Protocol, Art. 25, para. 1 UDHR

Right to free movement

o Art. 2, para. 1 of Protocol No. 4 ECHR, Art. 12, para. 1 ICCPR, Art. 5 lit. d(i, ii) CERD, Art. 10, para. 2 CRC, Art. 13 UDHR

Right to return

o Art. 3, para. 2 of Protocol No. 4 ECHR, Art. 12, para. 4 ICCPR, Art. 5 lit. d(ii) CERD, Art. 10, para. 2 CRC, Art. 13, para. 2 UDHR

Right to a fair trial (civil rights and obligations)

o Art. 6 ECHR, Art. 14, para. 1 ICCPR

Right to an effective remedy for human rights violations

o Art. 13 ECHR, Art. 2, para. 3 ICCPR, Art. 2, para. 1 ICESCR, Art. 6 CERD, Art. 39 CRC, Art. 8 UDHR

Cases regarding expropriations and arbitrary nationalisations occurred before the ratification of the international agreement containing the legal basis for the asserted human rights violation may be declared inadmissible by international judicial bodies due to lack of ratione temporis. The deprivation of ownership or another right in rem was considered an instantaneous act, which did not produce a continuing situation of “deprivation of a right” that could have caused the jurisdiction of the Commission and the Court. Thus the ECtHR declared inadmissible applications claiming a violation of the right to property contained in Art. 1 of Protocol No. 1 to the ECHR regarding properties expropriated or nationalised during communism or the Second World War.19 This line was largely sustained in cases relating to persons displaced during the Yugoslav

18 The UDHR, which is contained in a GA resolution, formally is not legally binding; nevertheless, some of its rights, though not the right to property, have become part of international customary law or represent general principles of law. Charlesworth, H., ‘Universal Declaration of Human Rights (1948)’, paras. 13, 16. 19 ECommHR, Appl. No. 23318/94, Geblusek v. Hungary, decision of 11 May 1994; ECommHR, Appl. No. 23063/93, Jan Jonas v. Czech Republic, decision of 13 May 1996; ECommHR, Appl. Nos. 23209/94 and 27313/95, Timar v. Hungary, decision of 13 January 1997; ECtHR, Appl. No. 53631/00, Pupedis v. Latvia, decision of 15 February 2001; ECtHR, Appl. No. 26937/04, Treska v. Albania and Italy, decision of 29 June 2006.

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conflict/war before the ratification of Protocol No. 120.21 Moreover, a case may be declared inadmissible for non-exhaustion of remedies.22

1.1.1. Right to property

The right to property, besides Art. 17 UDHR and Art. 5 lit. d(v) CERD, is provided for in the regional ECHR: Art. 1 of Protocol No. 1 to the ECHR holds that “every natural or legal person is entitled to the peaceful enjoyment of his possessions”, although States enjoy a wide margin of appreciation in limiting the right. In Saratlić v. Croatia the Court observed that the State had a legitimate interest in housing displaced persons in the property left behind by persons who had left Croatia during the war. The system which allows such persons to remain in the occupied property before they receive adequate housing is not in itself in contradiction with the guarantees contained in Art. 1 of Protocol No. 1, providing that it ensures sufficient safeguards for the protection of the owner’s property rights.23 However, according to the fair balance doctrine any State action must strike a fair balance between protecting the right on the one hand and the general interest which the limitation aims to achieve on the other hand.24 This balance will not be struck, for instance, if the person concerned has to bear an individual and excessive burden and there is no possibility to request inter alia compensation.25

The ECtHR did not see a lack of ratione temporis and accepted jurisdiction in certain cases relating to expropriations in communism, such as in the following circumstances: the property title was nullified by judicial decisions rendered after entry into force of the Convention,26 the restitution proceedings ended with a judgement after entry into force of the Convention,27 an executive order relating to the restitution judgement was issued after entry into force of Protocol No. 1,28 or a new expropriation of already restored possessions took place29. For example, the application in the case Kunić v. Croatia, which concerned a six-year delay in returning a privately owned property allocated by the Government to third persons during the Yugoslav conflict/war, was admissible.30

Moreover, Art. 1 of Protocol No. 1 requires existing possessions or a continuing situation of a state’s intervention into the right of private property in the case of

20 Croatia was the first to ratify Protocol No. 1 on 5 November 1997, which was made applicable in Kosovo by the Constitutional Framework for Provisional Self-Government of 15 May 2001 (Art. 3.2b, UNMIK/REG/2001/9 as amended). In BiH the Protocol was made applicable by the Appendix to Annex 6 of the DPA on 14 December 1995 and was ratified on 12 July 2002. On the direct applicability of the ECHR in BiH see Nowak, M., ‘Shortcomings of effective enforcement of human rights in Bosnia and Herzegovina’, p. 97. 21 ECtHR, Appl. No. 16837/02, Ostojić v. Croatia, decision of 26 September 2002; ECtHR, Appl. No. 61237/00, Aćimović v. Croatia, decision of 7 November 2002 (partly admissible); ECtHR, Appl. No. 59532/00, Blečić v. Croatia, Grand Chamber judgement of 8 March 2006; ECtHR, Appl. No. 7118/03, Mrkić v. Croatia, decision of 8 June 2006 (partly inadmissible); ECtHR, Appl. No. 13854/02, Marinković v. Croatia, decision of 16 June 2005. 22 Janković v. BiH was found inadmissible, because the expropriation proceedings had not been completed by the relevant Republika Srpska authorities, pending the court proceedings relating to the validity of the applicant’s ownership. ECtHR, Appl. No. 5172/03, Janković v. BiH, judgement of 16 May 2006; Zaklanac v. Croatia was also declared inadmissible for non-exhaustion of remedies, ECtHR, Appl. No. 48794/99, Zaklanac v. Croatia, decision of 15 November 2001. 23 ECtHR, Appl. No. 35670/03, Saratlić v. Croatia, decision of 24 October 2006. 24 ECtHR, Appl. No. 14025/88, Zubani v. Italy, judgement of 7 August 1996. Several factors need to be considered, such as the length of expropriation proceedings, the difficulties encountered by the applicants to obtain full payment of the compensation awarded and the deterioration of the plots eventually returned to them. Leckie, S. and Du Plessis, J., 'Housing, property and land rights in East Timor: Proposals for an effective dispute resolution and claim verification mechanism', p. 169. 25 ECtHR, Appl. Nos. 7151/75, 7152/75, Sporrong and Lönnroth v. Sweden, judgement of 23 September 1982, para. 73. 26 ECommHR, Appl. No. 29583/96, Panikian v. Bulgaria, decision of 10 July 1997; ECommHR, Appl. No. 26530/95, Kaneva v. Bulgaria, decision of 27 February 1997; ECommHR, Appl. No. 33456/96, Zvolensky v. Czech Republic, decision of 14 January 1998. 27 ECommHR, Appl. No. 23131/93, Brezny v. Czech Republic, decision of 4 March 1996, D.R. No. 85-B, p. 65. 28 ECtHR, Appl. No. 41510/98, Jasiuniene v. Latvia, decision of 24 October 2000. 29 ECtHR, Appl. No. 28342/95, Brumarescu v. Romania, decision of 28 October 1999; ECtHR, Appl. No. 29769/96, Curutiu v. Romania, decision of 8 December 1998. Karadjova, M., ‘Property Restitution in Eastern Europe: Domestic and International Human Rights Law Responses’, p. 326. 30 ECtHR, Appl. No. 22344/02, Kunić v. Croatia, decision of 1 September 2005 (partly admissible).

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unlawful confiscation, where the holder has remained the de jure owner of the expropriated property.31 According to the constant case-law of the Convention organs the right to live in a particular property which is not owned by an applicant does not as such constitute such “possession”.32 Thus in Blečić v. Croatia, where the applicant’s specially protected tenancy of a flat, of which she had become the sole holder after her husband’s death in 1989, was terminated.33 However, in Dogan and others v. Turkey a property, which was not registered in the land registry, did qualify as possession; the reason was that by living from breeding livestock and tree-felling the applicants had derived a revenue and economic resources from the land before the forcible eviction from the village by Turkish security forces.34

If the applicant does not enjoy possession, at the very least s/he must have a “legitimate expectation” of obtaining effective enjoyment of a property right, for instance, through realizing a claim to restitution of property based on national law.35 Such legitimate expectation exists, when “it appears that the applicant may have reasonably believed that he/she would be able to convince the courts that the conditions for restitution were met”.36 However, it did not exist, where a law provided for certain conditions which would have entitled the applicants to the restitution of their confiscated or nationalised property, but where they evidently did not meet clear conditions under the restitution law, such as residence in the country or the requirement that the claimed property was in the possession of the State.37 In contrast to the UN HRC (see Section 1.1.2.), the ECtHR denied the existence of a “legitimate expectation”, where national law excluded foreigners from the restitution process.38

The Court has made clear that Art. 1 of Protocol No. 1 does not guarantee a right to restitution39 or compensation40 on its own; however, where national law provides for restitution, it is protected by Art. 1 of Protocol No. 1.41 Thus property in Greece occupied by the Navy since 1967 during the dictatorship was to be restituted, if the nature of the breach allowed restitutio in integrum, or if national law does not allow - or allows only partial -, reparation to be made for the consequences of the breach, as Art. 41 ECHR empowers the Court to afford the injured party such satisfaction as appears to be appropriate to it.42

Moreover, compensation can result from the need to strike a fair balance. The ECtHR has awarded compensation for the destruction of the property of Kurds and eviction from their villages in South-East Turkey by Turkish security forces,43 for the eviction of Greek

31 ECtHR, Appl. No. 27053/95, Vasilescu v. Romania, decision of 22 May 1998 (movable property); ECtHR, Appl. No. 34049/96, Zwierzyński v. Poland, judgement of 19 June 2001. 32 ECtHR, Appl. No. 43389/02, Gacesa v. Croatia, decision of 1 April 2008. 33 ECtHR, Appl. No. 59532/00, Blečić v. Croatia, Grand Chamber judgement of 8 March 2006, para. 86. 34 There had also been a violation of Art. 8 (right to respect for private and family life, home and correspondence) and Art. 13 ECHR (right to an effective remedy). ECtHR, Appl. Nos. 8803-8811/02, 8813/02 and 8815-8819/02, Dogan and others v. Turkey, judgement of 29 June 2004. 35 ECommHR, Appl. No. 37912/97, Gospodinova v. Bulgaria, decision of 16 April 1998. 36 Ibid. 37 ECommHR, Appl. No. 23131/93, Brezny v. Czech Republic, decision of 4 March 1996, D.R. No. 85-B, p. 65; ECommHR, Appl. No. 25497/94, Lupulet v. Romania, decision 17 May 1996, DR 85-B, p. 126. 38 ECtHR, Appl. No. 39794/98, Gratzinger v. Czech Republic, decision of 10 July 2002, para. 69; ECtHR, Appl. No. 38645/97, Polacek v. Czech Republic, decision of 10 July 2002, para. 65. 39 ECommHR, Appl. No. 23063/93, Jan Jonas v. Czech Republic, decision of 13 May 1996; ECommHR, Appl. No. 37420/97, Maria Hoprich v. Romania, decision of 1 July 1998; ECommHR, Appl. No. 21344/93, Szechenyi v. Hungary, decision of 30 June 1993. 40 Hofmann, R., ‘International humanitarian law and the law of refugees and internally displaced persons’, p. 297. 41 Schreuer, Ch. and Kriebaum, U., ‘The concept of property in human rights law and international investment law’, p. 746. 42 ECtHR, Appl. No. 14556/89, Papamichalopoulos and others v. Greece, judgement of 31 October 1995, para. 34; ECtHR, Appl. No. 28342/95, Brumarescu v. Romania, judgement of 23 January 2001. 43 The Court e.g. awarded pecuniary damage in respect of houses, cultivated and arable land, household property, livestock and feed and cost of alternative accommodation. ECtHR, Appl. No. 21893/93, Akdivar and others v. Turkey, judgements of 16 September 1996 and 1 April 1998. ECtHR, Appl. No. 23184/94; 23185/94, Selcuk and Asker v. Turkey, judgement of 24 April 1998; ECtHR, Appl. No. 23186/94, Mentes and others v. Turkey, judgement of 24 July 1998; ECtHR, Appl. No. 26973/95, Yöyler v. Turkey, judgement of 24 July 2003;

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Cypriots from their homes and continuous denial of access and use of their property located in northern Cyprus, which has been occupied by Turkey since 197444 as well as flats given into temporary use to third persons in Croatia.45

Finally, States have a positive obligation under Art. 1 of Protocol No. 1 and Art. 1 ECHR to take the measures necessary to protect the right to property.46 This means, in particular, that they must afford judicial procedures that offer the necessary procedural guarantees and therefore enable the domestic courts and tribunals to adjudicate effectively and fairly any disputes between private persons.47 Such obligation seems to include also practical measures: in a case concerning the eviction by Turkish security forces, the authorities had the primary duty and responsibility to establish conditions and provide the means to allow the applicants to return voluntarily, in safety and with dignity, to their homes or places of habitual residence, or to resettle voluntarily in another part of the country.

1.1.2. Right to equality and non-discrimination

The right to equality and non-discrimination is provided in Art. 1 of Protocol No. 12 to the ECHR, Art. 14 ECHR and Art. 26 ICCPR. In contrast to Art. 14 ECHR, which has no independent existence and only applies, if the facts of the case fall within the ambit of another right or freedom provided in the Convention, Art. 1 of Protocol No. 12 contains an independent right. It concerns the following cases of discrimination: any right under national law, an obligation of a public authority under national law to behave in a particular way, the exercise of discretionary power by a public authority and any other act or omission by a public authority.48 It has been argued that Art. 1 of Protocol No. 12 may change the situation for foreigners in the restitution process.49 However, Protocol No. 12 entered into force only on 1 April 2005.

Even though the ICCPR does not include a right to property, the HRC has considered cases of expropriation during communism and the Second World War on the basis of the right to equality (Art. 26 ICCPR).50 Art. 26 ICCPR guarantees equality before the law and freedom from discrimination and the equal protection of the law in general. Its scope extends to all rights, whether protected by the Covenant or not, which the State party confers by law on individuals within its territory or under its jurisdiction.51 The HRC has found that distinctions of nationality in domestic legislation on the restitution of properties expropriated during communism52 and in the context of the Second World

ECtHR, Appl. Nos. 8803-8811/02, 8813/02 and 8815-8819/02, Dogan and others v. Turkey, judgement of 13 July 2006; ECtHR, Appl. No. 46347/99, Xenides-Arestis v. Turkey, judgements of 22 December 2005 and of 7 December 2006; ECtHR, Appl. No. 16219/90, Demades v. Turkey, judgement of 31 July 2003 and of 22 April 2008.. 44 ECommHR, Appl. Nos. 6780/74 and 6960/75, Cyprus v. Turkey, decision of 26 May 1975, DR 2, p. 125; ECtHR, Appl. No. 15318/89, Loizidou v. Turkey, judgement of 28 July 1998; ECtHR, Appl. No. 25781/94, Cyprus v. Turkey, judgement of 10 May 2001. 45 ECtHR, Appl. No. 9056/02, Radanović v. Croatia, judgement of 21 December 2006. There are 85 similar cases pending before the Court submitted on behalf of more than 3,750 applicants. Report by the Commissioner for Human Rights Mr Thomas Hammarberg on his visit to Bosnia and Herzegovina, 4 - 11 June 2007, Strasbourg, 20 February 2008, CommDH(2008)1, wcd.coe.int. 46 ECtHR, Appl. No. 31443/96, Broniowski v. Poland, judgement of 22 June 2004, para. 143. 47 ECtHR, Appl. No. 48553/99, Sovtransavto Holding v. Ukraine, judgement of 25 July 2002, para. 96. 48 Explanatory Report to Protocol No. 12, para. 22. 49 Karadjova, op.cit., 354. 50 The ICCPR was ratified by BiH on 1 September 1993 and by Croatia on 12 October 1992 (Optional Protocol on individual communications on 1 March 1995 and 12 October 1995 respectively) (ratified by former Yugoslavia on 2 June 1971, with derogations from Arts. 12 and 21 in the Autonomous Province of Kosovo as from 28 March 1989). 51 HRC 1994, General Comment No. 23 (Art. 27), para. 4. 52 HRC, Communication No. 516/1992, Simunek, Hastings, Tuzilova and Prochazka v. Czech Republic, views of 17 September 1991, CCPR/C/54/D/516/1992, para. 11.8; HRC, Communication No. 586/1994, Josef Frank Adam v. Czech Republic, views of 14 March 1994, CCPR/C/57/D/586/1994, para. 12.5; HRC, Communication No. 857/1999, Blazek v. Czech Republic, views of 9 August 2001, CCPR/C/72/D/857/1999, para. 5.8.

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War53 violated Art. 26 ICCPR. Moreover, the deprivation of private property without any form of compensation could be deemed a violation of Art. 26 ICCPR.54

The relevant provisions of CERD55 (Art. 5 lit. d(v)) and CEDAW56 (Arts. 15, para. 2 and 16, para. 1, lit. h aim to eliminate racial discrimination and discrimination of women in holding and exercising property rights. The monitoring system allows for individual communications, if the State concerned has made such declaration under Art. 14 CERD57 or has ratified the Optional Protocol to CEDAW58. Otherwise, the respective Committees comment on the State reports and formulate concluding observations or recommendations to enhance implementation within the States. Moreover, the CERD and CEDAW Committees can adopt general comments or general recommendations.

General Recommendation No. 20 states that Art. 5 CERD does not of itself create civil, political, economic, social or cultural rights, but assumes the existence and recognition of these rights; CERD obliges States to prohibit and eliminate racial discrimination in the enjoyment of such human rights (para. 1).

General Recommendation No. 21 in the comment on Art. 15, para. 2 CEDAW notes that restrictions on women’s capacity to enter into contract can inter alia prevent her from holding property as the sole owner (para. 7). In addition, limitations on her right to bring litigation by law or customs or by her access to legal advice and her ability to seek redress from the courts limit her right effectively to pursue or retain her equal share of property. The comment on Art. 16, para. 1, lit. h CEDAW requires that in countries with a programme of agrarian reform or redistribution of land among groups of different ethnic origins, the right of women, regardless of marital status, to share such redistributed land on equal terms with men should be carefully observed (para. 27). In addition, any law or custom granting men a right to a greater share of property at the end of a marriage or de facto relationship, or on the death of a relative, is discriminatory and will have a serious impact on a woman's practical ability to divorce her husband, to support herself or her family and to live in dignity as an independent person (para. 28). Also, law and practice concerning inheritance and property that result in serious discrimination against women contravene the Convention and should be abolished (para. 35).

Despite the general scope of the interpretation of the content of human rights provisions contained in general recommendations, a monitoring system that is largely based on state reports, despite the possibility of individual communications, generally remains much less efficient than that of the ECHR, where the ECtHR can adopt legally binding judgements and award “just satisfaction” to victims of human rights violations.

1.1.3. Rights to home and housing

The restitution of ownership/occupancy rights or compensation can also be necessary as a result of a violation of the rights to a home and to housing. The right to private and family life, home and correspondence, besides Art. 12 UDHR, is provided in Art. 8

53 HRC, Communication No. 747/1997, Karel Des Fours Walderode and Johanna Kammerlander v. Czech Republic, views of 2 November 2001, CCPR/C/73/D/747/1997, para. 8.4; HRC, Communication No. 765/1997, Fábryová v. Czech Republic, views of 17 January 2002, CCPR/C/73/D/765/1997, para. 10 (both on Benes Decrees); HRC, Communication No. 774/1997, Brok v. Czech Republic, views of 15 January 2002, CCPR/C/73/D/774/1997, para. 7.4. 54 Adam v. Czech Republic, op.cit., para. 12. However, the case Urbanetz Linderholm v. Croatia about expropriations in 1945 and 1948 was inadmissible under Art. 5, para. 2, lit. a of the Optional Protocol, because it had been examined by the European Commission for Human Rights. HRC, Communication No. 744/1997, Urbanetz Linderholm v. Croatia, views of 27 July 1999, CCPR/C/66/C/744/1997. 55 Entered into force for BiH on 16 July 1993 and for Croatia on 12 October 1992 (ratified by former Yugoslavia on 2 October 1967). 56 Ratified by BiH on 1 September 1993 and by Croatia on 9 September 1992 (ratified by former Yugoslavia on 26 February 1982). 57 This has not been the case for Croatia and BiH. Serbia and Montenegro made the declaration under Art. 14 on 27 June 2001. Thus in Durmić v. Serbia and Montenegro the Committee found a systemic failure by the Serbian government to investigate and prosecute discrimination against Roma in access to public places. 58 Ratified by BiH on 4 September 2002 and Croatia on 7 March 2001.

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ECHR. For instance, in Yoyler v. Turkey, where a Kurdish family had had to leave their village and their house had been destroyed by Turkish security forces, the Court requested restitutio in integrum and awarded 25,000 € of pecuniary damage and 14,500 € of non-pecuniary damage for a breach of inter alia Art. 8 ECHR and Art. 1 of Protocol No. 1 (also Art. 3 ECHR). It held that if restitutio in integrum was in practice impossible, States were free to choose the means of compliance with a judgement in which the Court had found a breach.59 In Pibernik v. Croatia, in which a final judgement ordering the eviction of an illegal occupant who had broken into the flat in 1995 had not been executed for a prolonged period of time so that the applicant had been prevented from living in her home for a period of more than three years after the Convention had entered into force, the Court found inter alia a violation of Art. 8 ECHR (para. 69).60

Like Art. 8 ECHR, Art. 17, para. 1 ICCPR protects persons from arbitrary or unlawful interference with their home. According to the General Comment No. 16 the concept of arbitrariness aims to guarantee that even interference provided for by a law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances (para. 4). In Vojnović v. Croatia, where the author and his family belonged to the Serb minority, the HRC concluded that it appears that their departure from Croatia had been caused by duress and had been related to discrimination. The deprivation of the tenancy rights therefore had been arbitrary and violated Art. 17 in conjunction with Art. 2, para. 1 ICCPR (para. 8.7).61

The right to housing, which may include property restitution, is increasingly recognised as an essential element of the process of return of refugees and displaced persons.62 Besides Art. 25, para. 1 UDHR, Art. 11, para. 1 ICESCR63 guarantees the right to adequate housing. This right applies to everyone, owners as well as non-owner tenants, although more emphasis has been placed on the rights of owners to return than on that of tenants.64

General Comment No. 4 ICESR sets out seven criteria for “adequate housing”: legal security of tenure, availability of services, materials, facilities and infrastructure, affordability, habitability, accessibility, location and cultural adequacy (para. 8). Legal security of tenure guarantees legal protection against forced eviction,65 harassment and other threats regarding rental (public and private) accommodation, cooperative housing, lease, owner-occupation, emergency housing and informal settlements, including occupation of land or property (para. 8, lit. a). Moreover, a general decline in

59 ECtHR, Appl. No. 26973/95, Yoyler v. Turkey, judgement of 24 July 2003. 60 ECtHR, Appl. No. 75139/01, Pibernik v. Croatia, judgement of 4 March 2004 (also violation of Art. 6 ECHR). A friendly settlement was reached in the following cases dealing with temporary occupants or the destruction of houses that were then struck out of the list: ECtHR, Appl. No. 69265/01, Kostić v. Croatia, decision of 18 November 2004; ECtHR, Appl. No. 33777/05, Amanović v. Croatia, decision of 2 October 2008; ECtHR, Appl. No. 22047/07, Karavović v. Croatia, decision of 9 October 2008; ECtHR, Appl. No. 33784/05, Milak v. Croatia, decision of 27 September 2007 (also Art. 1 of Protocol No. 1); ECtHR, Appl. No. 15716/04, Todorić v. Croatia, decision of 24 May 2007; ECtHR, Appl. No. 31044/03, Gajić v. Croatia, decision of 29 March 2007; ECtHR, Appl. No. 28438/04, Vuletić v. Croatia, decision of 9 November 2006; ECtHR, Appl. No. 29292/03, Bozić v. Croatia, decision of 20 October 2005; ECtHR, Appl. No. 37849/05, Dabić v. Croatia, decision of 4 September 2008 (also Art. 1 of Protocol No. 1). The following cases involving the destruction of houses during the war were inadmissible due to lack of ratione temporis: ECtHR, Appl. No. 9685/02, Stjepanović v. Croatia, decision of 14 November 2002; ECtHR, Appl. No. 9761/02, Badinovac v. Croatia, decision of 7 November 2002 (partly admissible). 61 HRC, Communication No. No. 1510/2006, Dusan Vojnović v. Croatia, views of 28 April 2009, CCPR/C/95/D/1510/2006. 62 Leckie, 2000, op.cit., 23. 63 Ratified by BiH on 1 September 1993 and Croatia on 12 October 1992 (by former Yugoslavia on 2 June 1971). 64 General Comment No. 4, para. 8. 65 General Comment No. 7 defines “forced evictions” as “the permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection” (para. 3).

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living and housing conditions, directly attributable to policy and legislative decisions by States parties, and, in the absence of accompanying compensatory measures (para. 11), instances of forced evictions are incompatible with the ICESCR and can only be justified in the most exceptional circumstances, and in accordance with the relevant principles of international law (para. 18). States parties are to provide a remedy to victims of violations of tenure security, such as (a) legal appeals aimed at preventing planned evictions or demolitions through the issuance of court-ordered injunctions, (b) legal procedures seeking compensation following an illegal eviction, (c) complaints against illegal actions carried out or supported by landlords (whether public or private) in relation to rent levels, dwelling maintenance, and racial or other forms of discrimination, (d) allegations of any form of discrimination in the allocation and availability of access to housing and (e) complaints against landlords concerning unhealthy or inadequate housing conditions (para. 17).

General Comment No. 7 ICESR states that evictions should not result in individuals being rendered homeless or vulnerable to the violation of other human rights. Where those affected are unable to provide for themselves, the State party must take all appropriate measures, to the maximum of its available resources, to ensure that adequate alternative housing, resettlement or access to productive land, as the case may be, is available (para. 16).

The CESCR Committee dealt in its Concluding Observations/Comments on BiH and Croatia with property restitution and compensation:

Regarding BiH the Committee noted in 2006 that cases concerning the return of property lost during the armed conflict to original owners had largely been resolved, though not regarding the Roma who had been evicted from their homes as pre-armed-conflict tenants absent adequate alternative accommodation or compensation (E/C.12/BIH/CO/1, 24 January 2006, paras. 5, 25, 27).

Regarding Croatia the Committee noted in 2001 that many displaced ethnic Serbs continued to face legal and administrative difficulties in attempting to repossess their former homes; these obstacles had resulted in the violation of the rights under Arts. 2 and 11 ICESR (CESCR E/2002/22 (2001), para. 893).

Housing rights are also provided in Art. 5, lit. e(iii) CERD, Art. 14, para. 2, lit. h CEDAW and Art. 27 CRC66.

General Recommendation No. 22 of CERD states that all refugees and displaced persons have the right freely to return to their homes of origin under conditions of safety (para. 2, lit. a) and the right to have restored to them property of which they were deprived in the course of the conflict and to be compensated appropriately for property that cannot be restored to them. Any commitments or statements relating to such property made under duress are null and void (para. 2, lit. c).

Regarding BiH the CERD Committee was deeply concerned in 2006 that many people of different ethnic origin, especially the Roma, were unable to return to their pre-armed conflict homes because of the lack of legal title to their property or because of the authorities’ failure to evict and punish temporary occupants who often vandalise or loot the homes before relinquishing possession of them (CERD/C/BIH/CO/6 11 April 2006, para. 20).

Finally, Art. 43, para. 1, lit. d CMW and the 1996 revised European Social Charter (Arts. 16, 19, para. 4, 31, para. 1) and its Additional Protocol (Art. 4) provide for housing rights. Other international instruments guaranteeing housing rights include various ILO

66 Ratified by BiH on 1 September 1993 and by Croatia on 12 October 1992.

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conventions,67 humanitarian law instruments68 and the Convention relating to the Status of Refugees (Art. 21).

1.1.4. Right to free movement and residence

The right to free movement and to choose one’s residence, if violated, may need to be remedied through creation of the conditions necessary for return, which have increasingly been understood to include property restitution. This right is provided in Art. 2, para. 1 of Protocol No. 4 to the ECHR for everyone lawfully within the territory of a State. Internal displacements in the context of regional conflict/war can be seen to infringe this right.69

In international human rights law, besides Art. 13, para. 1 UDHR, the right to freedom of movement and to choose one's residence is provided in Art. 12, para. 1 ICCPR.

According to General Comment No. 27 this right guarantees protection against all forms of forced internal displacement and precludes preventing the entry or stay of persons in a defined part of the territory (para. 7).

However, in the context of displacement during war or “public emergency which threatens the life of the nation and the existence of which is officially proclaimed”, the freedom of movement is derogable.70 As a result, in war or internal armed conflicts international humanitarian law applies (see below). The right to free movement and residence is also provided for in Art. 5, lit. d(i, ii) CERD and Art. 10, para. 2 CRC.

1.1.5. Right to return

The right to return has been recognised in European and international human rights law only as a right of nationals/refugees to return to their own country.71 Thus central questions have been whether the notion “own country” refers to citizens, nationals or permanent residents and what are the consequences of a loss of citizenship.72 It has been problematic e.g. if States imposed excessive requirements for proof of nationality.73 Some argue that the right has recently been reformulated as an individual right to return to one's home74 and that in this context legal arguements for restitution claims have been reinforced.75 However, this has not yet been reflected by codification in human rights treaties.

67 ILO Conventions No. 169 Concerning Indigenous and Tribal Peoples, No. 161 Concerning Occupational Health Services (1985), No. 117 Concerning Social Policy (Basic Aims and Standards) (1962), No. 110 Concerning Plantations (1958), No. 82 Concerning Social Policy (Non-Metropolitan Territories) (1947). 68 E.g. Art. 82 Fourth Geneva Convention, Arts. 69, 83, para. 2 Protocol I and Art. 17.1 Protocol II. 69 The Protocol entered into force for Croatia on 5 November 1997 and for BiH on 12 July 2002; it was made applicable in Kosovo by the Constitutional Framework for Provisional Self-Government of 15 May 2001. The application Zaklanac v. Croatia was declared inadmissible, because the displacement of the applicant, a Croatian citizen of Serbian origin, had taken place before the entry into force of the Convention for Croatia. ECtHR, Appl. No. 48794/99, Zaklanac v. Croatia, decision of 16 March 2000. 70 It is not listed among the non-derogable rights in Art. 4, para. 2 ICCPR (rights to life, freedom from torture, slavery and servitude, imprisonment due to inability to fulfil contractual obligation, nullum crimen sine lege, recognition as a person before the law and freedom of thought, conscience and religion). In another opinion the prohibition of forced displacement belongs to the category of fundamental standards of humanity, from which no derogation is acceptable under any circumstances. Scheinin, M., ‘Forced displacement and the ICCPR’, p. 70. 71 Goodwin-Gill, G.S., ‘The Right to Leave, the Right to Return and the Question of a Right to Remain’, p. 100. 72 Hannum, H., The right to leave and return in international law and practice, p. 56. 73 Hailbronner, K., ‘Comments on: The Right to Leave, the Right to Return and the Question of a Right to Remain’, p. 116. 74 Commentary on the Draft Principles on Housing and Property Restitution for Refugees and Displaced Persons, UN Doc. E/CN.4/Sub.2/2004/22/Add.1, para. 29; UN GA resolution 35/124 of 11 December 1980 on international intervention to avert new flows of refugees. 75 UNHCR Executive Committee Conclusion No. 101 (LV) of 2004 on Legal Safety Issues in the Context of Voluntary Repatriation of Refugees lit. h) and i).

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Art. 3, para. 2 of Protocol No. 4 to the ECHR applies to nationals of a State; it provides that no one shall be deprived of the right to enter the territory of the State of which s/he is a national.76

Art. 13, para. 2 UDHR, Arts. 12, para. 4 ICCPR, 5(d)(ii) CERD and 10, para. 2 CRC also contain a right to return. The HRC:

The HRC in its Concluding Observations relating to property issues in Kosovo in 2006 recommended that UNMIK, in cooperation with the Provisional Institutions of Self-Government (hereinafter: PISG), should ensure that displaced persons may recover their property, receive compensation for damage done and benefit from rental schemes for property temporarily administered by the Kosovo Property Agency (CCPR/C/UNK/CO/1, 14 August 2006, para. 18)

The CERD Committee adopted Concluding Observations regarding property issues for Kosovo and on several occasions for Croatia:

Regarding Kosovo the Committee expressed concern in 1998 at the limitations imposed by the 1989 Act on Special Conditions for Real Property Transactions, on the transactions between members of different groups and about the fact that the law was being unevenly and arbitrarily implemented, depending on the applicant's ethnicity and place of residence (CERD A/53/18, 10 September 1998, para. 200).

Regarding Croatia the Committee was concerned in 1998 about the difficulties of the return of Serbs and others displaced in Eastern Slavonia, Baranja and Western Sirmium and called into attention its General Recommendation No. 22 (CERD A/53/18 (1998), para. 315). In 2002 the Committee strongly urged Croatia to take effective measures to prevent discrimination, particularly as regards the restitution of the property, tenancy and occupancy rights, access to reconstruction assistance and rights to residency and citizenship of Croatian Serbs (CERD A/57/18 (2002), para. 99). In 2009 the Committee reiterated its recommendation of 2002; Croatia should ensure the implementation of its policies and laws to solve all outstanding housing issues faced by property owners and former tenancy rights-holders, by the end of 2009 as envisaged (CERD/C/HRV/CO/8, 24 March 2009, para. 19).

The CRC Committee adopted Concluding Observations relating to property issues in BiH and Croatia:

Regarding BiH the Committee expressed concern in 1996 about the BiH Law on Temporary Possession, according to which property may be occupied by temporary settlers in the absence of the property owners, who may obstruct the latter’s return (CRC A/51/41 (1996), para. 991).

Regarding Croatia the Committee in 2004 regretted that some of its concerns and recommendations, regarding, inter alia, non-discrimination in the repossession of their property by returned refugees (para. 15) and international cooperation to resolve the problem of property (para. 26) had not been given sufficient follow-up (CRC/C/15/Add.243, 3 November 2004, para. 7).

1.1.6. Right to a fair trial

The right to a fair trial provided in Art. 6 ECHR requires a fair and public hearing within a reasonable time in the determination of civil rights and obligations (in the case of property issues). The ECtHR has awarded restitution and/or compensation in expropriation cases, in which it inter alia found a violation of Art. 6 ECHR due to length of proceedings or non-implementation of final decisions.77 In some cases regarding property

76 The application Cekić and others v. Croatia, in which the applicants inter alia complained that they had been expelled from Croatia and subsequently prevented from returning for a prolonged period of time, was declared inadmissible inter alia due to lack of ratione temporis. ECtHR, Appl. No. 15085/02, Čekić and others v. Croatia, decision of 9 October 2003. 77 ECtHR, Appl. No. 54268/00, Qufaj Co.Sh.p.k. v. Albania, judgement of 18 November 2004; ECtHR, Appl. No. 7352/03, Beshiri and others v. Albania, judgement of 22 August 2006; ECtHR, Appl. No. 10508/02, Gjonbocari

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expropriated during communism the sum awarded has been very high,78 while in others it has been lower in judgements relating to expropriations or limitations on property as a result of the Yugoslav conflict/war.79

1.1.7. Right to an effective remedy

The right to an effective remedy usually is a subsidiary right, which applies if a right in the respective agreement has been violated. Art. 13 ECHR provides the right for an effective remedy before national authorities for violations of rights under the ECHR. Thus it could be raised, for instance, together with Art. 1 of Protocol No. 1. In Ipek v. Turkey, in which the applicant's family and home and belongings had been deliberately destroyed by the security forces, the Court found a violation of inter alia Art. 13 in conjunction with Arts. 2, 3 and 5 ECHR together with Art. 1 of Protocol No. 1 in respect of the applicant and his two sons.80

In international human rights law, besides Art. 8 UDHR, the right to an effective remedy is also provided in Art. 2, para. 3 ICCPR and Art. 6 CERD and can be derived from Art. 2, para. 1 ICESCR and Art. 39 CRC with regard to the rights contained in the respective Covenant.

1.2. Other international law Other international law mainly deals with property restitution/compensation in international humanitarian and criminal law, hard and soft law relating to return and soft law on a remedy for grave violations of human rights and humanitarian law.

1.2.1. International humanitarian and criminal law

International humanitarian law - the law of armed conflict or law of war - consists in rules to protect people in times of war who are not, or are no longer, participating in the hostilities, as well as rules to limit the methods and means of warfare81. The main instruments of humanitarian law are the four Geneva Conventions of 12 August 194982 and the three Additional Protocols83.84 While international armed conflicts between at least two States are subject to a wider range of rules of humanitarian law, to non-international armed conflicts within the territory of a single State a more limited set of provisions applies (Art. 3 common to the Geneva Conventions and Protocol II of 1977).

and others v. Albania, judgement of 23 October 2007; ECtHR, Appl. No. 33771/02, Driza v. Albania, judgement of 13 November 2007; ECtHR, Appl. No. 38222/02, Ramadhi and 5 others v. Albania, judgement of 13 November 2007; ECtHR, Appl. No. 12306/04, Nuri v. Albania, judgement of 3 February 2009 (also violation of Art. 1 of Protocol No. 1); ECtHR, Appl. No. 45264/04, Hamzaraj v. Albania, judgement of 3 February 2009 (also violation of Art. 1 of Protocol No. 1). 78 ECtHR, Appl. No. 2141/03, Vrioni and others v. Albania, judgement of 24 March 2009 (also violation of Art. 1 of Protocol No. 1). 79 ECtHR, Appl. No. 22344/02, Kunić v. Croatia, judgement of 11 January 2007, para. 75; ECtHR, Appl. No. 48778/99, Kutić v. Croatia, judgement of 1 March 2002; ECtHR, Appl. No. 61237/00, Aćimović v. Croatia, judgement of 9 October 2003. Other cases, in which Art. 6 ECHR was violated, were the following ones: ECtHR, Appl. No. 9224/06, Brajović-Bratanović v. Croatia, judgement of 9 October 2008; ECtHR, Appl. No. 78008/01, Varićak v. Croatia, judgement of 21 October 2004; ECtHR, Appl. No. 60533/00, Kastelic v. Croatia, judgement of 10 July 2003; ECtHR, Appl. No. 33593/03, Majski v. Croatia, judgement of 1 June 2006. 80 ECtHR, Appl. No. 25760/94, Ipek v. Turkey, judgement of 17 February 2004. 81 Pilloud, C. et al, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC, p. xxvii. 82 Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949; Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949; Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949. 83 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977; Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (Protocol III), 8 December 2005. 84 Other treaties are e.g. the 1980 UN Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons, the 1954 Convention on the Protection of Cultural Property in the Event of War, as well as customary law, such as the Hague Regulations Respecting the Laws and Customs of War on Land of 1907.

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In the Tadic case the Appeals Chamber of the ICTY confirmed that international humanitarian law was applicable in situations of non-international armed conflict in cases of “protracted violence between governmental authorities and organised armed groups or between such groups within a State”.85

In protecting civilians, international humanitarian law can apply to situations of wrongful population transfer, forced and arbitrary displacement of refugees and IDPs and their return. Unlike in human rights law, in international humanitarian law the right to return as such has not been expressly articulated.86 The Fourth Geneva Convention, though, which applies only to civilian non-nationals, requires the transfer of those affected by wartime evacuations back to their homes as soon as hostilities in the area have ceased (Art. 49, para. 2).87 However, it is doubtful whether the right to return goes as far as to allow in general IDPs to return to their former homes or property restitution.88

International humanitarian law includes certain prohibitions relating to property issues, which may be enforced before competent international judicial bodies. Thus the Fourth Geneva Convention prohibits pillage (Art. 33, see also Art. 4, para. 2, lit. g Additional Protocol II, Arts. 28 and 47 Hague Regulations) and the destruction of real or personal property by the Occupying Power, except where rendered absolutely necessary by military operations (Art. 53, see also Art. 23 Hague Regulations). Moreover, Art. 46 Hague Regulations prohibits the confiscation of private property by the Occupying Power and Art. 91 of Protocol I makes a Party to the conflict which violates the provisions of the Conventions or of this Protocol, if the case demands, liable to pay compensation.

Instruments establishing international judicial bodies for the enforcement of international humanitarian law may provide for restitution as a remedy for violations of humanitarian law. The ICTY has power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 (Art. 1 Statute). It is competent inter alia for extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly (Art. 2, lit. d Statute), as well as for plunder of public or private property (Art. 3, lit. e Statute). The Trial Chambers may order the return of any property and proceeds acquired by criminal conduct, including by means of duress, to their rightful owners (Art. 24, para. 3 Statute). The 1994 Rules of Procedure and Evidence require the Tribunal, in conjunction with a judgement of conviction, where it concludes from the evidence that unlawful taking of property by the accused was associated with it, to make a specific finding to that effect in its judgement (Rule 98ter(B)). It can award the restitution of property or its proceeds to victims (Rule 105). If a judgement finds the accused guilty of a crime which has caused injury to a victim, a victim or persons claiming through the victim may bring an action only in a national court or other competent body to obtain compensation, pursuant to the relevant national legislation (Rule 106(A, B)). The ICTY has not actually awarded restitution of property so far89.

85 Tadic, IT-94, ICTY Appeals Chamber, 2 October 1995, para. 70. 86 Quigley, J., ‘Mass displacement and the individual right of return’, p. 70. 87 Although the Fourth Geneva Convention does not include among the protected persons the own nationals of a State (Art. 4), Protocol II applies to all armed conflicts which are not covered by Art. 1 of Protocol I and which take place in the territory of a Party between its armed forces and dissident armed forces or other organised armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol (Arts. 1, para. 1, 2, para. 1). 88 Williams, The contemporary right to property restitution in the context of transitional justice, pp. 5. However, refugee repatriation agreements concluded between the host country, the country of origin and the UNHCR may contain rules on property restitution. E.g. Tripartite Agreement between the Government of the Republic of Mozambique, the Government of Zimbabwe and UNHCR for the Voluntary Repatriation of Mozambican Refugees from Zimbabwe (1993) (Arts. 8, para. 5, 12). 89 Judgements were seen up to October 2009.

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The 1998 Rome Statute of the International Criminal Court (hereinafter: ICC) authorises the Court to establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation (Art. 75, para. 1). On this basis, the Court may determine the scope and extent of any damage, loss and injury (Art. 75, para. 1); it may make an order directly against a convicted person specifying appropriate reparations, including restitution, compensation and rehabilitation or, where appropriate, order that the award for reparations be made through the Trust Fund provided for in Art. 79 (Art. 75, para. 2).90 However, States enforce fines or forfeitures in accordance with the procedure of national law. Thus the manner in which national jurisdictions will enforce the reparation orders of the ICC is left open, and it is not clear how national courts will deal with competing claims for assets.91 The Rome Statute was ratified well after the Yugoslav conflict/war92 and is therefore not applicable to it.

1.2.2. Hard and soft law relating to return

Although there is no general rule in international law that affirms the right of IDPs to return to their original place of residence or to move to another safe place of their choice within their country,93 where it exists, it is increasingly viewed to involve also re-occupying one’s original home.94

Several peace agreements guarantee a right to property and may impose positive obligations on the government to repeal any property-related legislation that would prevent the refugees from recovering their property or to adopt new legislation.95 This has been the case for BiH in the 1995 Dayton Peace Agreement, for Croatia in the 1995 Erdut Agreement and for Kosovo in the 1999 Rambouillet Accord96 as well as the Ahtisaari Plan:

For BiH the DPA reaffirms the right of refugees and displaced persons to return to their former homes and to have their property restored to them or be compensated for any property that cannot be restored to them (Art. I.1 of Annex VII). However, because restoration and compensation were connected to return, refugees and displaced persons who decided not to return to their homes, but to relocate, were not entitled to receive any compensation.97 To deal with property claims, Annex VII provided for the Commission for Displaced Persons and Refugees, which was set up as the Commission for Real Property Claims of Displaced Persons and Refugees (hereinafter: CRPC). In addition, a Human Rights Chamber (1996-2003) was established (Annex VI), which inter alia dealt with cases involving property issues; these cases were taken over by the Constitutional Court after 2004. In addition, Art. XIV of Annex VII provided for the establishment of a Property Fund to be replenished through the purchase, sale, lease and mortgage of real property subject of claims before the Commission and by direct payments from the parties, States or IOs and NGOs. However, funds for compensation were never made available.98

90 Rule 97 of the Rules of Procedure and Evidence deals with the assessment of reparations. 91 Ferstman, C., 'The Right to Reparation at the International Criminal Court', Article 2 1 (6), 2002, www.article2.org/mainfile.php/0106/62/. 92 Ratified by BiH on 11 April 2002 and Croatia on 21 May 2001. 93 Kälin, W., Guiding Principles on Internal Displacement – annotations, p. 128. 94 Bradley, M., ‘The Conditions of Just Return: State Responsibility and Restitution for Refugees’, p. 7. 95 Cambodia: Agreements on a Comprehensive Political Settlement of the Cambodia Conflict (1991), Annex 4 Repatriation of Cambodian Refugees and Displaced Persons (Part II, para. 4); Guatemala: Agreement on Identity and Rights of Indigenous Peoples (Guatemala Peace Accords) (31 March 1995) (Section F.1 and 7), Agreement on Resettlement of the Population Groups Uprooted by the Armed Conflict (17 June 1994) (Principles, paras. 8,9); Mozambique: General Peace Agreement (4 October 1992) (Protocol III, Section IV(e)); Rwanda: Arusha Peace Agreement (August 1993) (Art. 4). Burundi: Arusha Peace and Reconciliation Agreement (August 2000) (Art. 7, para. 25 Protocol I, Arts. 3, para. 19, 18, para. 3 Protocol II, Protocol IV reconstruction and development). 96 It was only signed by the Albanian, but not by the Serbian delegation. 97 Phuong, C., Forcible Displacements in Peace Agreements, p. 12. 98 Phuong, C., ‘‘Freely to Return’: Reversing Ethnic Cleansing in Bosnia Herzegovina', p. 170.

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For Croatia the Erdut Agreement, which aimed to implement the political settlement of reintegrating the Region of Eastern Slavonia, Baranja, And Western Sirmium into Croatia with the assistance of UNTAES (1996 - 1998), contained a very similar guarantee of the right to return to the place of residence in the region (Art. 7). Moreover, it established a right to have restored any property taken by unlawful acts or forced to abandon and to just compensation for property that cannot be restored (Art. 8), which was to be equally available to all persons without regard to ethnicity (Art. 9). However, the provision on compensation was not implemented.99

For Kosovo the draft Rambouillet Accord mentioned the right of all persons to return to their homes and to reoccupy their real property, assert their occupancy rights in state-owned property and recover their other property and personal possessions (Art. II, para. 3). However, in contrast to the DPA and the Erdut Agreement, the Rambouillet Accord did not provide for compensation.100 The Housing and Property Claims Commission (hereinafter: KPCC) issues decisions on property claims; the Housing and Property Directorate101 was replaced in 2006 by the Kosovo Property Agency.102

The Ahtisaari Plan also provided that all refugees and IDPs from Kosovo have the right to return and reclaim their property and personal possessions in accordance with domestic and international law (Art. 4, para. 1). It required the Constitution of Kosovo to provide for the return of refugees and IDPs from Kosovo and assistance in recovering their property and personal possessions in accordance with Kosovo and international law (Arts. 1, para. 5, 3, para. 1 Annex I). Moreover, the Plan required Kosovo to recognise, protect and enforce the rights of persons to private movable and immovable property located in Kosovo in accordance with established international norms and standards. Kosovo was to address claims regarding private immovable property, including agricultural and commercial property, where appropriate, by the Kosovo Property Agency (KPA), and property restitution issues, including those related to the Serbian Orthodox Church, as a matter of priority, in accordance with Annex VII of the Settlement on Property and Archives (Art. 8, para. 6). Kosovo and the Republic of Serbia were expected to ensure fair and non-discriminatory treatment of property and financial claims of each other's citizens, and fair and non-discriminatory access to their jurisdictions and claims resolution mechanisms (Art. 8, para. 7).

A right to return of displaced people to their former homes has also been affirmed in GA103 resolutions and most SC resolutions dealing with BiH,104 Croatia105 and Kosovo.106 However, only a few GA and SC resolutions dealing with BiH and Croatia explicitly refer to property issues:

99 Phuong, Forcible Displacements in Peace Agreements, p. 12. 100 The question of monetary compensation arises only with regard to claims regarding apartments lost in the early 90ies based on discrimination. Das, H., ‘Restoring Property Rights in the Aftermath of War’, p. 442. 101 United Nations Interim Administration in Kosovo (hereinafter: UNMIK) Regulation No. 1999/23 on the establishment of the Housing and Property Directorate and the Housing and Property Claims Commission, 15 November 1999. See also Van Houtte, H. et al., Post-War Restoration of Property Rights Under International Law, p. 79. 102 UNMIK Regulation 2006/10 on the Resolution of Claims Relating to Private Immovable Property, Including Agricultural and Commercial property, as amended. 103 GA Resolution 194 (III) of 11 December 1948 on the Palestinian refugees provides that the refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible (para. 11). It has been argued that principles on restitution and compensation provided in this resolution are part of binding international customary law. Boling, G., 'Palestinian Refugees and the Right of Return: An International Law Analysis', BADIL Information and Discussion Brief 8, 2001, www.badil.org/. 104 E.g. SC resolution 752 (1992), 941 (1994), 947 (1994), 959 (1994), 981 (1994), 1088 (1996), 1491 (2003), 1575 (2004). 105 E.g. SC resolution 1009 (1995), 1019 (1995), 1079 (1996). 106 E.g. SC resolutions 1199 (1998), 1244 (1999).

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For BiH they reaffirm the nullity of statements and commitments made under duress (e.g. SC resolution 820 (1993) para. 7, GA resolution 49/10 (1994), para. 7), the right of refugees and displaced persons, to have restored property taken from them in the course of hostilities since 1991 or to be compensated d (GA resolution 50/193 (1995), para. 12),107 the engagement of the CRPC (GA resolution 51/203 (1996), para. 17), called for the repeal of all property laws that prevent pre-war residents from returning to their homes and for ensuring the passage of non-discriminatory legislation (GA resolution 52/150 (1998), para. 22),108 endorsed the package of property law reforms imposed by the HR on 27 October 1999 aimed at harmonizing the laws in the two entities as well as his subsequent action to ensure full implementation (GA resolution 54/119 (1999), para. 20), called upon their implementation, in particular by evicting illegal occupants from the homes of returning refugees (GA resolution 55/24 (2001), para. 19).109

Regarding Croatia the resolutions reaffirm the nullity of statements and commitments made in the Serbian-controlled parts under duress (GA resolution 49/43 (1994), para. 5), called on the government to resolve property rights issues (GA resolution 53/163 (1999), para. 24), to lift any time-limits to reclaim property (SC resolution 1019 (1995), para. 7), to eliminate obstacles posed by the Law on Temporary Takeover and Administration of Specified Property (SC resolution 1120 (1997), para. 4; SC resolution 1145 (1997), para. 7).

Moreover, the 2007 Report of the Secretary-General on the protection of civilians in armed conflict (S/2007/643) called for a more effective response to post-conflict property issues and an approach that ensures consistent, systematic and comprehensive treatment of housing, land and property issues (see ara. 59).110

Restitution and compensation for refugees and IDPs has been reaffirmed by UN human rights bodies, such as the UN Commission on Human Rights111 and the Sub-Commission on the Promotion and Protection of Human Rights (up to 1999 named Sub-Commission on the Prevention of Discrimination and Protection of Minorities):

The UN Commission on Human Rights in Resolution 1997/57 welcomed the Agreement on Normalisation of Relations between the Republic of Croatia and FRY (Serbia and Montenegro), which, inter alia, ensures conditions for the return of refugees and displaced persons and the return of their property or a just compensation in its Art. 7. It called upon authorities in BiH to repeal laws relating to "abandoned" property, to end illegal evictions of persons from their homes and to reinstate in their homes persons who have been evicted in violation of their rights (para. 22, lit. e). In addition, it called upon the Government of Croatia to continue to cooperate fully with UNTAES to ensure a peaceful reintegration of Eastern Slavonia with respect for property rights (para. 27, lit. a).

The Sub-Commission on the Promotion and Protection of Human Rights in Resolution 1998/26 urged States to develop fair and effective mechanisms to resolve housing and property problems of refugees and IDPs (para. 4). In Resolution 2002/7 it affirmed that the remedy of compensation should only be used when restitution was not possible or when the injured party knowingly and voluntarily accepted compensation in lieu of restitution (para. 5).112 In Resolution 2002/30 the Sub-Commission inter alia dealt with secondary occupants and encouraged States to provide affordable social housing (para. 13).

107 See also GA resolution 49/196 (1995). 108 GA resolution 52/147 (1998) and GA resolution 53/35 (1999). 109 Similar GA resolution 54/184 (2000) and GA resolution 56/215 (2002). 110 Due to lack of space, country-specific reports by the Secretary-General are not included. 111 The Commission on Human Rights was replaced by the UN Human Rights Council in 2006. 112 Mr. Paulo Sérgio Pinheiro was appointed as Special Rapporteur with the task of preparing a comprehensive study on housing and property restitution in the context of the return of refugees and IDPs (para. 6).

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Furthermore, UN principles regarding refugees and IDPs, which represent soft law, deal with housing and property restitution in the context of return:

The 1998 Guiding Principles on Internal Displacement113,114 provide inter alia for the right of IDPs not to be displaced out of their homes arbitrarily (principle 6),115 to be protected against forcible return to or resettlement in any place where their life, safety, liberty and/or health would be at risk (principle 15), the right to adequate standard of living (principle 18), the right not to be arbitrarily deprived of property and possessions (principle 21) and the right to return to their homes voluntarily and in safety and with dignity (principle 28). They also reiterate the right of IDPs to restitution or, if not possible, compensation (principle 29).

The 2005 UN Principles on Housing and Property Restitution for Refugees and IDPs (Pinheiro Principles)116 offer detailed guidance on the interpretation and application of the right of refugees and IDPs to have their homes and properties restored or, if impossible, to be compensated (para. 2.1).117 States are to prioritise the right to restitution as the preferred remedy and as a key element of restorative justice. The right to restitution exists as a distinct right, and is prejudiced neither by the actual return nor non-return of refugees and displaced persons entitled to housing, land and property restitution (para. 2.2). States are to ensure that the rights of tenants, social-occupancy rights holders and other legitimate occupants or users of housing, land and property are recognised within restitution programmes so that they are able to return to and repossess and use their housing, land and property in a similar manner to those possessing formal ownership rights (para. 16.1). States should ensure that secondary occupants are protected against arbitrary or unlawful forced eviction (para. 17.1), although in the case where the secondary occupant has sold the housing, land and property to third parties acting in good faith, States may consider establishing mechanisms to provide compensation to injured third parties. The egregiousness of the underlying displacement, however, may arguably give rise to constructive notice of the illegality of purchasing abandoned property, pre-empting the formation of bona fide property interests in such cases (para. 17.4).

1.2.3. Soft law relating to a remedy for grave violations of human rights and humanitarian law

The right to restitution, compensation and rehabilitation for victims of grave violations of human rights or humanitarian law118 and the right to a remedy can be found increasingly

113 The Guiding Principles were drafted by the UN Special Representative to the Secretary General on IDPs Francis Deng between 1996 and 1998 and constitute the first international standards focusing exclusively on IDPs. Deng, F.M. and McNamara, D., ‘International and National Responses to the Plight of IDPs’, p. 24. 114 Although they are soft law (principle 2(2)), many of their rules are part of legally binding humanitarian and human rights law and refugee law, which needs to be invoked first, or are declaratory of customary law. Bagshaw, op.cit., p. 211. 115 See also Pettersson, B., Complementarity between key instruments of international law. International human rights and humanitarian law merged into one operational instrument: the UN Guiding Principles on Internal Displacement, Global IDP Project, Norwegian Refugee Council, pp. 5. 116 Resolution 2005/35 of the Sub-Commission on the Promotion and Protection of Human Rights. 117 Bradley, M., Reparations, Reconciliation and Forced Migration, FMO Research Guide, 2006, www.forcedmigration.org/guides/fmo044/fmo044-3.htm. 118 Here a distinction is made between gross violations of human rights and serious violations of humanitarian law. In customary international law and international criminal law gross violations affect in qualitative and quantitative terms the core rights of human beings, notably the right to life and the right to physical and moral integrity of the human person (genocide, slavery and slave trade, murder, enforced disappearances, torture or other cruel, inhuman or degrading treatment or punishment, prolonged arbitrary detention, deportation or forcible transfer of population (draft Code of Crimes against the Peace and Security of Mankind (1996) of the ILC, Arts. 9, 17) and systematic racial discrimination, but also deliberate and systematic deprivation of essential foodstuffs, essential primary health care or basic shelter and housing). In international humanitarian law ‘serious violations’ constitute crimes under international law, irrespective of the national or international context; ‘grave breaches’ refer to atrocious acts as defined in international humanitarian law, but only in relation to international armed conflicts (Arts. 6-8 ICC Statute on genocide, crimes against humanity and war crimes). The common article 3 of the Geneva Conventions of 12 August 1949 contains minimum humanitarian standards that are to be respected "at any time and in any place whatsoever"; it prohibits (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture, (b) taking of hostages, (c)

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in resolutions of the UN Commission on Human Rights.119 For the Commission the practice of forced eviction constitutes a gross violation of human rights, in particular the right to adequate housing.120 It requested for persons and communities that have been forcibly evicted “immediate restitution, compensation and/or appropriate and sufficient alternative accommodation or land, consistent with their wishes and needs”.121

Other soft law instruments dealing with (gross) violations in different areas of law are:

The 1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power122 provides inter alia that offenders or third parties should make fair restitution to victims, their families or dependents, which should include the return of property or payment for the harm or loss suffered, the reimbursement of expenses incurred as a result of the victimisation, the provision of services and the restoration of rights.

The 1997 Comprehensive Human Rights Guidelines on Development-Based Displacement address the human rights implications of the practice of forced evictions associated with development-based displacement in urban and rural areas (para. 1). They state that all persons subjected to forced eviction should have a right to compensation for any losses of land, personal, real or other property or goods, including rights or interests in property not recognised in national legislation. Compensation should include land and access to common property resources and should not be restricted to cash payments (para. 24).

The 2001 Articles on State Responsibility of the International Law Commission (ILC) state that full reparation for the injury caused by the internationally wrongful act is to take the form of restitution, compensation and satisfaction, either singly or in combination (Art. 34).123

The 2005 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (Basic Principles)124 request that the victims should be provided with full and effective reparation in the forms of restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition (Principles 18-20).

2. Role played by international organisations IOs may play a vital role in the return process, as they create incentives and facilitate property restitution, such as through mediation between the actors concerned or through the provision of expertise and financial assistance to stakeholders.

2.1. Council of Europe The Council of Europe has dealt with property issues following the Yugoslav conflict/war mainly through its Parliamentary Assembly, the Council of Ministers, the ECtHR (see

outrages upon personal dignity, in particular humiliating and degrading treatment and (d) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognised as indispensable by civilised peoples. Boven, Th., Victims‘ Rights, MPEPIL (electronic resource); Implementing Victims’ Rights, A Handbook on the Basic Principles and Guidelines on the Right to a Remedy and Reparation, 14, www.redress.org/publications/Reparation%20Principles.pdf. 119 Commission on Human Rights resolutions 2003/34, 2002/70, 2002/44, 2001/279, 2001/105, 2000/41 and 1999/33, 1998/43, 1997/29. 120 Commission on Human Rights Resolution 1993/77 (1993), paras. 1 and 4, also Sub-Commission on Prevention of Discrimination and Protection of Minorities resolutions 1991/12, 1993/41, 1994/39 and 1995/29. 121 Commission on Human Rights Resolution 1993/77 (1993), para. 4. 122 Adopted by GA resolution 40/34 (1985). 123 Annex to GA resolution 56/83 (2001). 124 Adopted by GA resolution 60/147 (2005). Preparatory work included a Study (E/CN.4/Sub.2/1993/8, 2 July 1993), a Final report submitted by Special Rapporteur Mr. Theo van Boven (E/CN.4/1997/04, 16 January 1997) and a Final report by Special Rapporteur Mr. M. Cherif Bassiouni (E/CN.4/2000/62, 18 January 2000).

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Section 1.1) and the Commissioner for Human Rights125. The Parliamentary Assembly, besides dealing with communism,126 also adopted several resolutions and recommendations relating to property issues following the Yugoslav conflict/war.127

The Committee of Ministers mainly supervised the implementation of ECtHR judgements relating to restitution/compensation in cases of expropriations in the context of communism and in Northern Cyprus. In a reply to resolution 1406 (1999) it welcomed the positive actions undertaken by the Government of Croatia regarding the return of refugees and displaced persons (para. 2).

2.2. Organisation for Security and Co-operation in Europe The Organisation for Security and Co-operation in Europe (hereinafter: OSCE) has adopted a number of politically binding commitments on internal displacement and provides assistance to governments in addressing IDP situations through its institutions and field missions.128 The OSCE Parliamentary Assembly has stated on several occasions the right to return and the restitution of immovable property.129 The OSCE Office for Democratic Institutions and Human Rights (ODIHR) runs some programmes aimed at developing legal frameworks to protect the rights of IDPs and has dealt with IDPs and property restitution mainly in BiH, Croatia and Kosovo in the context of the Human Dimension Meetings.130

Moreover, through its field missions the OSCE has contributed to promoting the Guiding Principles on Internal Displacement and has played an instrumental role in the implementation of durable solutions for IDPs in SEE.131 The field missions in BiH and Kosovo have put much effort into IDP issues, although IDPs are not specifically included in their mandate. The mission in Croatia has a special unit focusing exclusively on the return and reintegration of IDPs and refugees. In BiH and Croatia the return of IDPs and refugees has been largely seen as the result of the strong pressure exerted on local actors by the international community through UNHCR, OSCE and other international institutions.132 The visit of the Chairman-in-Office to Croatia on 10 and 11 May 2004 125 Expert Workshop “Housing rights: positive duties and enforceable rights” organised by the Council of Europe Commissioner for Human Rights, Mr. Thomas Hammarberg, CommDH(2007)23, Budapest, 24-25 September 2007; Report by the Commissioner for Human Rights Mr. Thomas Hammarberg on his visit to Bosnia and Herzegovina on 4-11 June 2007, CommDH(2008)1, Strasbourg, 20 February 2008; Strasbourg, 20 December 2007. 126 Resolution 1096 (1996)1 on measures to dismantle the heritage of former communist totalitarian systems states that the Assembly advises that property, including that of the churches, which was illegally or unjustly seized by the State, nationalised, confiscated or otherwise expropriated during the reign of communist totalitarian systems in principle be restituted to its original owners in integrum, if this is possible without violating the rights of current owners who acquired the property in good faith or the rights of tenants who rented the property in good faith, and without harming the progress of democratic reforms (para. 10). 127 Recommendation 1802 (2007) on the Situation of longstanding refugees and displaced persons in SEE (para. 14.1.10), Recommendation 1588 (2003) on Population displacement in SEE: trends, problems, solutions; BiH: Recommendation 1357 (1998) on BiH (paras. 1, 9, lit. j), Opinion No. 234 (2002) on BiH’s application for membership of the Council of Europe (para. 15, lit. b, d), Resolution 1383 (2004) on Honouring of obligations and commitments by BiH (para. 13); Croatia: Resolution 1066 (1995) (para. 9), Opinion No. 195 (1996) (para. 9 vii, ix), Recommendation 1287 (1996) (para. Vi.b), Recommendation 1406 (1999) (para. 10), Resolution 1223 (2000); Kosovo: Recommendation 1385 (1998) (para. 7, lit. c), Recommendation 1404 (1999) (para. 11, lit. c), Resolution 1417 (2005) (para. 4). 128 Eschenbächer, J.-H., Internal Displacement. Global Overview of Trends and Developments in 2004, p. 59. 129 St. Petersburg Declaration of the OSCE Parliamentary Assembly, St. Petersburg, 10 July 1999 (para. 98), Bucharest Declaration of the OSCE Parliamentary Assembly, Bucharest, 10 July 2000 (p. 6), Declaration of the OSCE Parliamentary Assembly and Resolutions adopted during the Eleventh Annual Session, Berlin, 10 July 2002 (para. 9), Declaration of the OSCE Parliamentary Assembly and Resolutions adopted during the Twelfth Annual Session, Rotterdam, 5 to 9 July 2003 (p. 85). 130 Twelfth Meeting of the Ministerial Council, 6 and 7 December 2004 (p. 90), 2007 Human Dimension Implementation Meeting (paras. 1, lit. a, 2, lit. a), Recommendations of Movement for Peace, Disarmament and Liberty (MPDL) – Movement for Peace based on its statement made on working session 5, “Humanitarian issues and other commitments I””, Warsaw, 26 September 2007, 2007 HDIM.NGO/201/07. 131 Eschenbächer, op.cit., p. 59. 132 Beau, Ch. and Eschenbächer, J.-H., ‘The OSCE and internal displacement: A new momentum’, p. 20. On 16 and 17 October 2000 the OSCE Mission to Croatia hosted a meeting of property experts from OSCE missions and offices in SEE. Its purpose was to identify best practices on how to deal with housing policies and property laws in the region of SEE. The participants discussed issues related to property repossession, including

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focused on the return of refugees, property restitution, occupancy tenancy rights and co-operation with the ICTY.133 However, it has been argued that, despite all these efforts, OSCE activities relating to IDPs remain largely ad-hoc and inconsistent.134

Furthermore, the OSCE has a specific legal role in BiH and Kosovo which has been set out in international agreements or, in the case of Kosovo, draft documents. For BiH the DPA conferred on the OSCE - together with the UN Commission on Human Rights, the UNHCR and other intergovernmental or regional human rights missions or organisations - a monitoring role in the field of human rights, including through the establishment of local offices and the assignment of observers (Art. XIII of Annex 6). It also authorised the Chairman-in-Office of the OSCE to appoint a Human Rights Ombudsman for a non-renewable term of five years (Art. IV.2 of Annex 6).135 Annex 1-B DPA mandates the OSCE to help elaborate and implement three distinct agreements: an agreement on confidence- and security-building measures (CSBMs) in BiH (Art. II Annex 1-B, concluded in Vienna on 26 January 1996), an agreement on regional arms control (Art. V) and a sub-regional arms control agreement (Art. VII, concluded in Florence on 14 June 1996).

For Kosovo the Settlement Proposal (Ahtisaari Plan) requested the OSCE to maintain a Mission in Kosovo, including a comprehensive field presence, to support the democratic development and the work of the ICR and his/her Office (Art. 3, para. 2 of Annex IX). In the period of the UN administration, UNMIK was organised in a four-pillar structure, with the OSCE heading the pillar on Democratisation and Institution-Building (Pillar III), including democratisation, human rights monitoring, legal reform, police training and elections.

2.3. European Union The EU plays an important role in reconstruction and institution building in the Western Balkan countries through its external aid programmes. Since 1991 € 6.8 billion have been committed to the Western Balkans through various assistance programmes. The Commission details the allocation of financial assistance under the Pre-Accession Assistance (IPA) by country and theme for the 2009–11 period with 157000 for Croatia, 108000 for BiH and 68000 for Kosovo (see details in Annex).136

The EU plays an important role through the representation of the European Commission in the countries. The Delegation of the European Commission to BiH was established as early as 10 July 1996. In Kosovo there is the European Commission Liaison Office. In addition to providing regular political analysis, carrying out evaluations jointly with Member State Embassies and contributing to the policy-making process, the Delegations plays a key role in the implementation of external assistance programmes.

The EP has adopted several resolutions explicitly referring to property issues137 in the Yugoslav conflict/war.

restitution of nationalised (expropriated) property and lost occupancy rights to formerly socially-owned property/apartments. 133 Twelfth Meeting of the Ministerial Council, 6 and 7 December 2004, p. 96. 134 Beau and Eschenbächer, op.cit., 13. 135 Together with the Human Rights Chamber (1996-2003), the Ombudsman formed the Human Rights Commission. The Chamber, when resolving or deciding on a case, forwarded a report to the OSCE (as well as to other organisations). Sica, M., ‘The Role of the OSCE in the Former Yugoslavia after the Dayton Peace Agreement’, p. 5. 136 Communication from the Commission to the Council and the EP - Instrument for pre-accession assistance (IPA) - Multi-annual indicative financial framework for 2009-2011, /* COM/2007/0689 final */. 137 Those resolutions referring only to return are not considered.

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In 2005 the EP welcomed the declaration by Croatia, BiH and Serbia-Montenegro on the return of refugees and property reparations, signed on 31 January 2005 in Sarajevo, as an important step towards tackling the legacy of some three million refugees and IDPs and urged the Commission and the Member States not to further decrease their contributions to housing reconstruction and economic sustainability projects and, where possible, to make donations, loans and investments conditional on employment opportunities for returnees (para. 19).138

In 2009 it pointed out that greater efforts are needed on the part of the governments of the Western Balkans region in order to guarantee the sustainable return of refugees and IDPs, including the return of property and restitution of temporarily occupied houses, in line with the Sarajevo Declaration issued by the Regional Ministerial Conference on Refugee Returns on 31 January 2005. In addition, the EP urged the Council and the Commission to insist that the governments of the region develop and implement programmes for access to housing and social services for returnees, and to strengthen their efforts aimed at combating discrimination against returning minorities. It took the view that these measures should already be in place when the countries in question reach the stage of candidate status and should be resolutely implemented and completed during the accession process (para. 38).139

The following resolutions have been adopted with regard to Croatia:

In 2000 the EP reiterated the urgency of enabling Croatian citizens of Serb origin expelled from Kraijina to return home if they wish to do so (para. I) and encouraged the Croatian government to undertake the necessary legislative reforms in the field of minority rights, property, media and the judiciary (para. 8).140

In 2003 it welcomed the agreement concluded by the new government with the Serb minority; stressing the importance of measures to encourage the return of all refugees and, in this connection, recalling the undertakings given by Croatia under the Dayton, Paris and Erdut agreements (para. P). It addressed the following recommendations to the Council: to stress the need for Croatia to meet the undertakings deriving from the Dayton and Paris agreements, particularly as regards the return of refugees (para. 1, lit. a); to call on the Croatian authorities to continue their policy of encouraging the return of refugees by implementing the legal framework effectively (particularly as regards the restoration of property), at local level especially (para. 1, lit. b (i)).141

In 2009 the EP urged the Croatian authorities to address promptly the outstanding cases concerning property restitution, in line with the relevant rulings of the Croatian Constitutional Court (para. 7).142

138 EP resolution on the Commission's 2005 enlargement strategy paper (2005/2206(INI)); EP resolution on the outlook for Bosnia and Herzegovina of 2006 (para. 19). 139 EP resolution of 24 April 2009 on consolidating stability and prosperity in the Western Balkans (2008/2200(INI)). Also, the EP recommendation to the Council of 25 October 2007 on relations between the EU and Serbia (2007/2126(INI)) called on the Serbian Government to pursue its efforts to implement the Sarajevo Declaration, including by adopting a clear legal framework covering, inter alia, the right to return to the place of origin and the right to property compensation (para. 16). 140 EP resolution on the Commission report on the feasibility of negotiating a Stabilisation and Association Agreement with the Republic of Croatia (COM(2000) 311 - C5-0506/2000 - 2000/2244(COS)). In 1996 the EP endorsed the decision by the Council of Europe to make Croatia's accession subject to the following conditions: the right of return for Serb refugees (para. 3). Resolution on Croatia's failure to gain admission to the Council of Europe B4-0687, 0688, 0691, 0692 and 0693/96. 141 EP recommendation to the Council on the application by Croatia for accession to the EU (2003/2254(INI)). 142 EP resolution of 12 March 2009 on the Croatia 2008 progress report.

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The following resolutions have been adopted with regard to BiH:

In 2001 the EP urged the authorities of the Republika Srpska to accelerate the return of Bosniacs and Croats to their homes in order to realise the idea of three constitutive peoples of Bosnia-Herzegovina and its entities, as laid down in the Constitution (para. 5). In addition, it urged Croatia to facilitate the return of Serb refugees, in particular by adopting a law on property, which will make possible the return of property to Serb citizens and by also creating and guaranteeing local and regional conditions for a definitive return of refugees (para. 6).143

In 2008 the EP recalled the need to implement effectively the provisions regarding restitution of property which are already in force and urged the BiH authorities to overcome their hesitations in this respect (para. 23).144

The following resolutions have been adopted with regard to Kosovo:145

In 1999 the EP called on President Milosevic and the Serb and Yugoslav authorities to react positively to the initiatives by UN Secretary-General Kofi Annan and the European Council and to avoid any further suffering of civilians by inter alia accepting unconditionally the return of all refugees and displaced persons to their homes (para. 2).146

In 2004 the EP called on Albanians in Kosovo to allow their Serbian compatriots who fled to areas under KFOR protection to return safely to their homes (para. 7).147

In 2009 the EP stated that it expected EULEX to function in accordance with its EU mandate with a view to promoting the stable development of Kosovo and guaranteeing the rule of law for all communities throughout Kosovo and underlined in this regard that EULEX serves the interests of all ethnic minorities in Kosovo, since it will address, inter alia, complaints concerning ethnic discrimination, harassment and violence and the many outstanding property issues (para. 7).148

143 EP resolution on the situation in Bosnia-Herzegovina and notably in Banja Luka B5-0357, 0362, 0369, 0375 and 0385/2001. 144 EP resolution of 23 October 2008 on the conclusion of the Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and Bosnia and Herzegovina, of the other part. 145 Resolutions dealing with expulsions and other discrimination against Kosovar Albanians since 1989 have not been examined. 146 Resolution on Kosovo B4-0443, 0444, 0445, 0454 and 0485/99. Similar Resolution on the situation in Kosovo B4-0377, 0379, 0385, 0386 and 0402/99 (para. L). 147 EP resolution on the situation in Kosovo P5_TA-PROV(2004)0271. In 2006 the EP stressed that additional efforts are needed to support the further return of refugees and displaced persons throughout Kosovo; underlines that the key to sustainable return is work opportunities and that sustainable economic development must now become a priority; underlines that non-Serb and non- Albanian refugees, such as Roma and Ashkali, need special attention, including the Roma IDPs living in the camps in Kosovska Mitrovica (para. 12). EP resolution of 29 March 2007 on the future of Kosovo and the role of the EU (2006/2267(INI)). In 2000 the EP urged the Council to set up a special programme aimed at relieving the hardships of the Serbian minority in order to facilitate its remaining in Kosovo, encourage its direct involvement in the interim administration, facilitate the return of the refugees and break the isolation of the remaining communities (para. 12). EP resolution on the fundamental rights in Serbia and Kosovo B5-0569, 0572, 0574 and 0579/2000. In 1999 the EP stressed that all Kosovars - irrespective of their ethnic origin - must be able to stay in and return to Kosovo, and live there in peace without harassment or intimidation of any kind (para. 4). EP resolution on the situation of the Serb and other national minorities in Kosovo B5-0270, 0275, 0281, 0298 and 0305/1999. 148 EP resolution of 5 February 2009 on Kosovo and the role of the EU.

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Property restitution has been dealt with in written questions by MEPs related to property seized during the Nazi occupation or the Holocaust period or during and after the subsequent Communist takeover.149

Moreover, in BiH and in Kosovo the EU has held certain functions of territorial administration, even if mainly by means of powers of intervention (except in Mostar). In BiH since February 2002, when the General Affairs Council appointed the High Representative/EU Special Representative (HR/EUSR) in BiH, the HR has had a double-headed function in representing both, the international community and the EU. In a Declaration of 10 December 1997 of the Bonn Peace Implementation Conference the powers of the High Representative were significantly enlarged (so-called Bonn-powers);150 on the basis of these powers, the High Representative has exercised legislative, executive and judicial competencies. He amended or adopted laws through orders or decisions, when domestic legislative bodies failed to vote for crucial laws in line with international standards, including Entity constitutional law.151 Furthermore, from 1994-1996 the EC even led the administration in the Municipality of the City of Mostar (Arts. 1 and 4 of Memorandum of Understanding (MoU) signed in Geneva on 18 March 1994) and exercised comprehensive powers of governance.152 The administration inter alia aimed to assist in creating the conditions for the return to their homes of all displaced citizens of Mostar and in ensuring the protection of human rights (Art. 2 of MoU). All persons with main residence in Mostar at the time of the 1991 census were to have the right to return to the city. The EU administration was to develop a programme to create the conditions for the return of these persons to their homes (Art. 15, para. 1 of MoU). Refugees and displaced persons in Mostar were to enjoy those internationally guaranteed rights granted to them by their status, until conditions would have been created for their return to places from which they have been driven out, or other places of their choice (Art. 15, para. 2 of MoU).153

In Kosovo according to the Council Joint Action 2008/124/CFSP, as amended, the structure of EULEX KOSOVO contains a justice component, co-located where appropriate with the relevant Ministries, the Kosovo judiciary, the Kosovo Property Agency etc. (Art. 5, para. 3, lit. c). The tasks of EULEX KOSOVO, which may be relevant for property issues, include monitoring, mentoring and advising the competent Kosovo institutions on all areas related to the wider rule of law (including a customs service), whilst retaining certain executive responsibilities (Art. 3, lit. a); ensure the maintenance and promotion

149 Written Question E-1653/01 by Professor Sir Neil MacCormick (Verts/ALE) to the Commission. Restitution of property in the applicant countries, OJ C 078 E, 27 March 2004, 340; Written Question E-0658/02 by Mario Mantovani (PPE-DE), Giacomo Santini (PPE-DE)and Amalia Sartori (PPE-DE) to the Council. Restitution of property to Istrian and Dalmatian exiles, OJ C 309 E, 12 December 2002, 34; Written Question E-0196/02 by Bert Doorn (PPE-DE) to the Commission. Restitution of property to Jewish citizens and Jewish communities in the applicant countries, OJ C 309 E, 12 December 2002, 15; Written Question E-0998/00 by Neil MacCormick (Verts/ALE) to the Council. Restitution of property in the applicant countries, OJ C 081 E, 13 March 2001, 13-14; Written Question P-1948/00 by Antonio Tajani (PPE-DE) to the Commission. Restitution of real property expropriated by the Yugoslavian Communist regime, OJ C 072 E, 6 March 2001, 155-156; Question No 59 (H-0642/99) by Gary Titley to the Commission. Restitution of Jewish property in Poland, EP debates not yet published; Written Question No. 3961/98 by Luigi Caligaris Negotiations on Slovenia's accession to the EU and the restitution of Italian property, OJ C 320, 6 November 1999, 94. 150 The Council welcomed the High Representative’s intention to use his final authority to facilitate the resolution of difficulties by making binding decisions, as he judged necessary, such as interim measures to take effect when Parties were unable to reach agreement, which will remain in force until the Presidency or Council of Ministers has adopted a decision consistent with the Peace Agreement on the issue concerned (Art. XI, para. 2b of Declaration). 151 Salamun, M., Democratic governance in international territorial administration, p. 79. 152 Ibid, 97. 153 However, in 2000 the International Crisis Group held that international community and EU efforts have failed in terms of actually achieving reunification, as even after six years of international community assistance and supervision, the administration, economy, infrastructure, education, police and legal systems of Mostar remained sharply divided along ethnic lines. ICG, Reunifying Mostar: Opportunities for Progress, p. 1. The Statute imposed by the HR after consultation with local and national leaders in 2004 united the City administratively. However, today in 2009 its multi-ethnic City failed on fourteen separate occasions to elect a mayor, and councillors began boycotting sessions, which has rendered the City ungovernable. ICG, Bosnia: A Test of Political Maturity in Mostar, Europe Briefing No. 54, Sarajevo/Brussels, 27 July 2009.

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of the rule of law, public order and security including, as necessary, in consultation with the relevant international civilian authorities in Kosovo, through reversing or annulling operational decisions taken by the competent Kosovo authorities (Art. 3, lit. b); as well as to assume other responsibilities, independently or in support of the competent Kosovo authorities, to ensure the maintenance and promotion of the rule of law, public order and security, in consultation with the relevant Council agencies (Art. 3, lit. h). These powers, which are mainly powers of intervention (except certain “executive responsibilities”), appear very broad and comparable to the Bonn powers of the HR/EUSR in BiH. Moreover, the Council Joint Action 2009/137/CFSP of 16 February 2009 states that, in order to achieve the policy objectives of the EU in Kosovo, the mandate of the EUSR shall be to inter alia contribute to the development and consolidation of respect for human rights and fundamental freedoms, including with regard to women and children, in accordance with EU human rights policy and EU guidelines on Human Rights (Art. 3, lit. e). In the period of the UN administration (1999-2008), the EU was competent for Reconstruction and Economic Development (Pillar IV). It was responsible for organising economic reconstruction (including running the Central Fiscal Agency and coordinating donor inputs), while the UN was responsible for the office of the SRSG (with its executive and legislative role) and for providing various departments of civil administration (including executive policing, the judicial and penal systems and municipal administration).

2.4. Other international organisations UNHCR has fulfilled an important humanitarian role in relation to the repatriation and relief of refugees and IDPs.

In BiH Annex 7 DPA provides a specific mandate for UNHCR, which was to develop in close consultation with asylum countries and the Parties a repatriation plan that would allow for an early, peaceful, orderly and phased return of refugees and displaced persons (Art. I.5 of Annex 7). In an effort to protect the legal rights of returnees, UNHCR had deployed field officers in the return areas who would, in cases of alleged illegal house occupations and without taking a stance on the merits of a particular case, transmit the information to the local prosecutor through a letter, referring to the commitment of the Government to the return and reintegration of the returnees and requesting that an investigation be carried out, followed by an eviction where this was found to be justified. Cases were often solved in an informal manner between the occupant, the alleged victim, the field officer and the local official.154 The UNHCR also implemented many innovative programmes, such as the Open City initiative, in which gave local authorities the possibility to declare themselves publicly to be open to minority return, and become candidate for increased levels of reconstruction aid and other economic assistance.155

In Kosovo UNHCR was to assist the competent authorities in extending protection and assistance to returnees and, inter alia, to undertake periodic assessments and issue public reports on the conditions of return and the situation of the internally displaced within Kosovo (Art. 4, para. 3 Ahtisaari Plan).156 In the period of the UN administration, UNHCR took part in territorial administration within the four-pillar structure of UNMIK: However, Humanitarian Assistance (Pillar I) was phased out at the end of June 2000.

Besides UNHCR, in post-conflict settings the International Committee of the Red Cross (ICRC), the United Nations Development Programme (UNDP) and other relevant international and domestic organisations and NGOs deal with refugees and displaced persons.

154 Bagshaw, op.cit., p. 221. 155 However, the programmes have not achieved the goal of self-sustainable return. Cox, M., 'The right to return home: International intervention and ethnic cleansing in BiH’, pp. 623. 156 For the role of UNHCR in Croatia with regard to preventive protection see Phuong, The international protection of internally displaced persons, pp. 165.

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Chapter 2 – THE CONCEIVABLE ROLE OF THE EU

1. European law and the Charter of Fundamental Rights of the European Union With regard to Member States, the delineation of powers between the Community and the Member States is based on the principle of delegated powers or competence d’attribution (Art. 13, para. 2 TEU). This means that those competencies which are not conferred on the Union by the Treaties have remained with the Member States. However, in the course of time the principles of implied powers and the effet utile, together with an extensive interpretation of Art. 19 TEU, often have established a Community competence, where the Treaty did not explicitly provide for such.157

Currently, the Treaties do not contain an explicit provision conferring the competence for property restitution or immovable property on the Community. The Treaty of Lisbon, except through making the Charter of Fundamental Rights legally binding (see below), does not change this situation. However, as will be argued, Art. 345 TFEU can be interpreted to include a certain regulative competence of the EU.

1.1. A negative competence of the Community? Art. 345 TFEU states that the Treaty must not prejudice the rules in Member States governing the system of property ownership. This is understood as a negative competence of the Community, within which it does not have the power to legislate. However, there has been an ongoing debate on the meaning and scope of this article, especially with regard to the notion of “system of property ownership”.158 It has been argued that the term “system” refers not only to nationalisations, privatisations and expropriations, but to the entire collection of rules on ownership in the broadest sense, including the rights and obligations attached to the right to property and the way in which it can be used.159 A more restrictive interpretation holds that Art. 345 TFEU contains only the competency of the Member States to decide on whether property is public or private and makes clear that Member States have the right to transform private property into common property and vice versa; nationalisation is permitted, except e.g. if it infringes the free movement of capital. At a minimum, Art. 345 TFEU made clear that, at the time of the entry into force of the Treaty, the property systems of the Member States were compatible with it.160

Two interrelated questions arise from this provision: The first one is how far the competence of the Member States goes, before national legislation infringes Community law, i.e. what are the limits for the national legislator. The second question is how far the competence of the Community goes, before it encroaches upon the competence of the Member States.

In the first case, Member States have to observe in particular the prohibition of discrimination on the grounds of nationality (Art. 18 TFEU), the basic freedoms and the rules on competition provided in the Treaty. For instance, they can create State monopolies of a commercial character (Art. 37 TFEU) and public undertakings through nationalisation and undertakings to which they grant special or exclusive rights 157 Thus it has even been argued that the ECJ’s case law on the limitative effect of legal harmonisation measures leads to conclusions which have largely the same end result as a system of concurrent powers. Schwarze, J., Becker, U. and Pollak, Ch., The Implementation of Community Law: Studies in the Legislative and Administrative Policies of the European Community and its Member States, pp. 31. 158 It has been argued that because the phrasing of the article is unfortunate and its wording is so broad that the meaning becomes difficult to determine, legal scholars, the European Commission and the ECJ all seem uncertain how to handle this article. Akkermans, B. and Ramaekers, E., ‘Article 295 EC, its meanings and interpretations’, p. 1. 159 Burghardt, G., Die Eigentumsordnungen in den Mitgliedstaaten und der EWG-Vertrag, pp. 18. 160 If the Treaty had changed the system of property ownership, when it entered into force, the adoption of constitutional amendments would have been necessary. Bär-Bouyssière, B., ‚EG Art. 295‘, para. 9.

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(Art. 106 TFEU); however, the former must comply with Art. 37 TFEU and the latter especially with Arts. 18, 101-109 TFEU.161 Moreover, the ECJ found that so-called golden shares, i.e. a nominal share able to outvote all other shares in certain specified circumstances (e.g. to avoid hostile takeovers), which is often held by a government organisation, in a government company undergoing privatisation and transformation into a stock-company, were incompatible with Art. 345 TFEU and the free movement of capital. The ECJ argued that those concerns cannot entitle Member States to plead their own systems of property ownership (Art. 345 TFEU), by way of justification for obstacles, resulting from privileges attaching to their position as shareholder in a privatised undertaking, to the exercise of the freedoms provided for by the Treaty. Art. 345 TFEU does not have the effect of exempting the Member States' systems of property ownership from the fundamental rules of the Treaty.162 It has been argued that, if golden shares are compatible with this provision only in certain conditions, independently of Art. 106 TFEU, this must be the case even more so for nationalisations.163

The concept of nationalisation has been related mainly to undertakings in the jurisprudence of the ECJ. However, the absence of a clear meaning of Art. 345 TFEU leaves a broad scope for interpretation of the article, which can also include real property.164 A large scale nationalisation of real property in any case would violate Community law, as it would abolish the concept of private property as such and so run counter to the spirit of the Treaty. Therefore, legislation on restitution of nationalised property must correspond with this spirit as well. Thus the aims of the Union, such as establishing a highly competitive social market economy (Art. 3, para. 3 TEU), could be seen as determining national legislation on restitution, which, as a result, would need at least to present no obstacles to the development of a functioning land market.

On the part of the Member States, restrictions on the acquisition or use of immovable property in the domestic legislation must not go against the other Treaty provisions. In 1984 the ECJ dealt with an Irish law, which intended to ensure economic viability of land use, forcing landowners to sell their land by forced sale to the Irish authorities for the purposes of increasing the size of holdings of land.165 Land owned by a company could be compulsorily acquired by the Irish Land Commission where owners of the company did not reside within three miles of the land for more than one year. The Commission had proceeded to buy a piece of land owned by Robert Fearon and Company Ltd. Before deciding on the case, the Supreme Court of Ireland submitted a request for a preliminary ruling to the ECJ questioning the conformity of the Irish Act with the freedom of establishment. The ECJ held that although Art. 345 TFEU did not call in question the Member States’ right to establish a system of compulsory acquisition by public bodies, such a system remained subject to the fundamental rule of non-discrimination which underlies the Chapter of the Treaty relating to the right of establishment. Art. 49 TFEU allowed for making the exemption from compulsory acquisition measures under legislation on the ownership of rural land subject to a requirement that nationals of other Member States who had taken part in the formation of a land-owning company reside on or near the land, if that residence requirement also applied to nationals of that Member State and if the powers of compulsory acquisition were not exercised in a discriminatory manner. When dealing with lawmaking competences at a national level, Member States must take into account the fundamental freedoms, in this case the free movement of persons in the form of the freedom of establishment.

161 Bär-Bouyssière, op.cit., paras. 10, 11. 162 ECJ, case C-367/98, Commission v. Portugal, judgement of 4 June 2002, [2002] ECR I-4731, para. 48. See also ECJ, case C-483/99, Commission v. France, judgement of 4 June 2002, [2002] ECR I-4781, para. 44, and ECJ, case C-503/99, Commission v. Belgium, judgement of 4 June 2002, [2002] ECR I-4809, para. 44. 163 Bär-Bouyssière, op.cit., para. 18. 164 ECJ, case 182/83, Robert Fearon and Company Ltd v. The Irish Land Commission, judgement of 6 November 1984, [1984] ECR 3677. 165 Ibid.

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At a minimum, real property law is subject to the basic freedoms and the principle of non-discrimination. Restrictions on the acquisition of real property by nationals of other Member States can constitute infringements of the freedom of establishment and the free movement of capital (see free movement of capital below). It has been argued that the same applies, where in some countries of transformation the restitution of expropriated property might be limited by national legislation to the nationals of the restituting State, while non-nationals are excluded; freedom of establishment and the principle of non-discrimination require the equal treatment of citizens of other Member States.166

The second case deals with the question how far the Community competence goes in legislating for a right to property or in restricting national property systems by regulating a certain area of the economy. Regarding the right to property, it has been noted that since Art. 345 TFEU refers to the “system” of property ownership, it does not concern the content of the “right” of ownership, nor the objects of a “right” of ownership.167 Such, as a result and after consideration of the subsidiarity and proportionality principles, may be regulated by the Community. The ECJ has based the fundamental right to property, which is now provided for in Art. 17 of the Charter of Fundamental Rights of the EU (see Section 1.3.1), on the reference to fundamental rights in ex-Art. 6, para. 2 TEU (new Art. 6, paras. 2, 3 TEU), which provides that the Union shall respect fundamental rights, as guaranteed by the ECHR and as they result from the constitutional traditions common to the Member States, as general principles of Community law,168 and, though not explicitly, on its power according to ex-Art. 220 TEC (new Art. 19 TEU) to ensure that in the interpretation and application of the Treaty the law is observed.169 Regarding the regulation of a certain area of the economy, the ECJ has not questioned on the basis of Art. 345 TFEU the right of the Community to restrict private property in order to achieve important Community goals. For example, even highly regulative measures about the common organisation of the agricultural markets do not prejudice the property system for agricultural property.170 It depends on whether restrictions of property rights aim to remove the property right from the owner or only to limit its exercise. Any restriction needs to be examined, if it corresponds to objectives of general interest pursued by the Community; and with regard to the aim pursued, they should not constitute a disproportionate and intolerable interference with the rights of the owner, such as to impinge upon the very substance of the right to property.171 If one attempts to apply such general concepts to immovable property, it is conceivable that the Community goal of a functioning market economy allows for a regulation of the land market and thus for certain restrictions on private property in Member States aiming to achieve a greater degree of security of tenure.

Art. 345 TFEU therefore limits, but does not prevent, the application of the Treaty as a whole to the way in which the rules of a Member State deal with the right of ownership. It does not obstruct the development of European Property Law and should not be interpreted to do so.172

166 Remien, O., ‘Real Property Law and European Private Law - A Sketch of an Unsurveyed Territory’, p. 1. 167 Akkermans, Ramaekers, op.cit., p. 12. 168 E.g. ECJ, case 44/79, Hauer v. Land Rheinland Pfalz, judgement of 13 December 1979, [1979] ECR 3727, paras. 15, 17, 18; ECJ, joined cases C-20/00 and C-64/00, Booker Aquaculture and Hydro Seafood v. The Scottish Ministers, judgement of 7 October 2003, [2003] ECR I-7411. 169 Kingreen, Th., ‚EGV Art. 295‘, para. 4. 170 See e.g. ECJ, Hauer v. Land Rheinland Pfalz. 171 ECJ, Hauer v. Land Rheinland Pfalz, para. 5 172 Akkermans, Ramaekers, op.cit., p. 22.

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1.2. European economic law Part Three of the Treaty sets out the fundamental freedoms, which are the cornerstones of the internal market pursuant to Art. 3 TEU. All the fundamental freedoms are comparable to basic rights and have direct effect in the Member States. However, they only apply to cross-border situations.173 The free movement for workers (Arts. 45-48 TFEU), the freedom of establishment (Arts. 49-54 TFEU) and the free movement of capital and payments (Arts. 63-66, 75 TFEU), the free movement of persons (Art. 21 TFEU) as well as the principle of non-discrimination (Art. 18 TFEU) each may imply rights of nationals of other Member States to acquire real property. Consequently, restrictions in national legislation on the acquisition of immovable property by nationals of other Member States must be removed.

The question arises of whether a State can guarantee fundamental freedoms, if there is a lack of legal security of tenure, for instance, if the property restitution process (both, in the context of denationalisation and the regional conflict/war) has not been concluded or if restitution decisions are not executed, so that the property of the new “owner” can be claimed by the former owner, both of whom may have valid legal grounds, if bona fide purchase is excluded when there are restitution claims on the piece of real property. It may be that such a lack of legal security of tenure of the purchaser of the property in effect constitutes a restriction of the exercise of a fundamental freedom, which infringes Community law. It could constitute a kind of indirect discrimination, considering the complexity of the legislation on restitution and of the factual situation, which affect nationals of other Member States to a greater degree; the latter will be less able to judge whether a particular property will be subject to restitution claims of former owners or not and what “informal fees” need to be paid, due to the complexity of the legal and factual situation. Consequently, in administrative practice nationals of other Member States may need to undergo additional procedures and undertake additional actions to achieve security of tenure.

1.2.1. Free movement of workers

Art. 45 TFEU grants workers the right to accept employment offers in other Member States, to stay there during the time of employment and to remain after the end of the employment. Art. 45 TFEU includes a specific form of the general principle of non-discrimination on the grounds of nationality contained in Art. 18 TFEU. In addition, the ECJ has developed a general prohibition of restriction of the free movement of persons. The term “worker” has a Community meaning and has been interpreted by the ECJ in a very broad sense,174 although Member States can deny or restrict access to employment in the public service on grounds of a worker’s nationality (Art. 45, para. 4 TFEU).175

Secondary legislation regulates entry and residence rights, employment access and conditions and the right to remain as well as the rights of family members176. Council Regulation (EEC) No. 1612/68 of 15 October 1968 on the free movement of workers within the Community, as amended, provides that a worker who is a national of

173 If the case has no cross-border dimension, only national law applies. In individual cases this can mean that a State’s own nationals are treated less favourably than citizens of other Member States (“reverse discrimination”). 174 A “worker” is also a person who, having left his/her job, was not currently in employment but was capable of taking up another job and was wishing to do so; or a part-time worker whose income was below the minimum means of subsistence in the host State and who needed to supplement that income by drawing state benefit. ECJ, case 53/81, Levin v. Staatssecretaris Van Justitie, judgement of 23 March 1982, [1982] ECR 1035. 175 The term “public service” has been defined restrictively and includes only jobs requiring a particular allegiance to the state, such as, for instance, high-ranking positions in the police force, armed forces, civil service and the judiciary, but it does not include civil servants in general. ECJ, case 66/85, Lawrie-Blum v. Land Baden-Württemberg. 176 Family members, irrespective of their nationality, are the worker’s spouse and descendants who are under the age of 21 or are dependants and ascendants of the worker or the worker’s spouse who are dependent and the partner with a contracted a registered partnership, if the legislation of the host Member State treats registered partnerships as equivalent to marriage (Art. 2 Directive 2004/38/EC on the right to move and reside freely).

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a Member State and who is employed in the territory of another Member State shall enjoy all the rights and benefits accorded to national workers in matters of housing, including ownership of the housing he needs (Art. 9, para. 1). The ECJ held in Commission v. Greece that restrictions applied by a Member State to nationals of other Member States in regard to the acquisition and enjoyment of rights in immovable property are contrary to the free movement for workers, the freedom of establishment and the free movement of capital and payments. In regard to workers, access to housing and ownership of property provided for in Art. 9 of Regulation No. 1612/68, is the corollary of the freedom of movement and for that reason is covered by the prohibition of discrimination laid down in Art. 45 TFEU.177

1.2.2. Freedom of establishment

The freedom of establishment (Arts. 49-54 TFEU) prohibits restrictions on the taking up of a self-employed activity of nationals of a Member State and on the setting-up of agencies, branches or subsidiaries of enterprises178 in the territory of another Member State.179 Establishment implies setting up and running a business or practicing a professional activity on a permanent or semi-permanent basis, while any temporary activity is covered by the freedom of services (Art. 56 TFEU). Art. 49 TFEU contains a non-discrimination clause, which is lex specialis to Art. 18 TFEU. In addition, the ECJ has developed a general prohibition of restriction of the freedom of establishment.

The freedom of establishment includes the right to acquire real property to set up businesses in the same conditions like a national (Art. 49 in conjunction with Art. 50, para. 2 TFEU). In Commission v. Greece the ECJ held that the right to acquire, use or dispose of immovable property on the territory of a Member State is the corollary of the freedom of establishment.180 It includes also the rules relating to the various general facilities (secondary establishments) which are of assistance in the pursuit of business activities, such as the right to purchase, exploit and transfer real and personal property.181 Secondary legislation provides for rights of entry and residence of the self-employed and their families (Directive 2004/38/EC on the right to move and reside freely). Other directives regulate the mutual recognition of qualifications, the harmonisation of rules of professional conduct regulating such matters as professional ethics and organisation and harmonisation of company law.

1.2.3. Free movement of capital

Arts. 63-66, 75 TFEU provide for the free movement of capital, which protects the cross-border transfer of capital mainly for investment purposes. It applies to direct investments, such as equity participation in an enterprise, as well as loans, guarantees, credits or investments securities. Everyone whose capital “resides” in the Community is a beneficiary of this freedom, regardless of his/her nationality. Member States must remove, with some exceptions, all restrictions on the movement of capital, both within the EU and between Member States and third countries. Art. 64, para. 1 and 2 TFEU comprises direct investments, including investments in real estate. However, the acquisition of real estate may be restricted by primary law for some Member States.182 Directive 88/361/EEC of 24 June 1988 concretises the free movement of capital. The

177 ECJ, case 305/87, Commission v. Greece, judgement of 30 May 1989, [1989] ECR 1461. 178 Companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the Community (Art. 48 TEC, new Art. 54 TFEU). 179 Restrictions of the entry and residence of self-employed persons may be justified on grounds of public policy, public security and public health (Art. 52 TFEU). Art. 51 TFEU constitutes the equivalent to Art. 45, para. 4 TFEU (exception for employment in the public service). 180 ECJ, case 305/87, Commission v. Greece, op.cit., para. 22. 181 ECJ, case 63/86, Commission v. Italy, judgement of 14 January 1988, [1988] ECR 29, para. 14. 182 Protocol No. 1 - TEU - Acquisition of property in Denmark; Protocol No. 2 - Act of Accession Finland - Åland islands.

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nomenclature of the capital movements in Annex I includes inter alia investments in real estate.183

The ECJ has rendered several judgements declaring that restrictions on the acquisition of real estate, most of which required a special permission from nationals of other Member States, mainly in Austria184, but also in Italy185 and Denmark186 constituted a violation of the freedom of capital.

1.2.4. Free movement of persons

The free movement of persons (Art. 21 TFEU) includes the rights of free movement and residence within the EU for non-economically active citizens, who do not fall within any of the fundamental freedoms. However, the article does not confer a directly effective individual right, but is subject to the limitations and conditions provided in primary and secondary law.

Directive 2004/38/EC on the right to move and reside freely within the EU replaced inter alia Directive 90/364/EEC of 28 June 1990 (persons not employed), Directive 90/365/EEC (employees and self-employed persons who have ceased their occupational activity), Directive 93/96/EEC of 29 October 1993 (students), of which the first two included a right to acquire property. Directive 2004/38/EC provides that, subject to provisions in the Treaty and secondary law, all Union citizens residing on the basis of this Directive in the territory of the host Member State enjoy equal treatment with the nationals of that Member State within the scope of the Treaty. The benefit of this right is extended to family members who are not nationals of a Member State and who have the right of residence or permanent residence (Art. 24, para. 1 Directive 2004/38/EC). This requirement of equal treatment logically includes also the right to acquire real estate.

1.2.5. Principle of non-discrimination

The general principle of non-discrimination in Art. 18 TFEU, which is subsidiary to the specific prohibitions of non-discrimination of the fundamental freedoms, prohibits direct187 and indirect188 discrimination on the grounds of nationality. This includes also discrimination in the acquisition of real estate.

Art. 19 TFEU, pursuant to which the Council may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation, takes the principle of non-discrimination beyond common market objectives relating to employment and industrial relations. However, in contrast to Art. 18 TFEU, it does not have direct effect. So far directives to combat discrimination have been adopted in the area of employment on the grounds of religion or belief, disability, the grounds of racial or ethnic origin (Directive 2000/43/EC of 29 June 2000). This 183 Art. 6, para. 4 of the Directive allows that existing national legislation regulating purchases of secondary residences may be upheld until the Council adopts further provisions in this area in accordance with Art. 69 of the Treaty. However, Art. 69 EEC Treaty was repealed with the Amsterdam Treaty. Therefore, different conclusions as to the legal quality of this provision can be drawn: It can be argued that the provision is not in force anymore (like its basis in primary law), that it has remained in force (because the Directive was never formally repealed), but is obsolete and that it is in force and applies only with regard to the definition of the freedom of capital (because the ECJ continues to refer to it). 184 ECJ, case C-302/97, Konle v. Republik Österreich, judgement of 22 August 1997, [1999] ECR I-3099; ECJ, joined cases C-515/99, C-519/99 bis C-524/99 and C-526/99 to C-540/99, Reisch, Lassacher v. Bürgermeister der Landeshauptstadt Salzburg, judgement of 5 March 2002, [2002] ECR I-2157 ECJ, case C-178/99; C-300/01, Salzmann, judgement of 15 May 2003, [2003] ECR I-4899. ECJ, case C-452/01, Ospelt und Schlössle Weissenberg Familienstiftung, judgement of 23 September 2003, [2003] ECR I-9743; ECJ, case C-213/04, Burtscher/Stauderer, judgement of 1 December 2005, [2005] ECR I-10309. 185 ECJ, case C-423/98, Albore, judgement of 13 July 2000, [2000] ECR I-5965. 186 ECJ, case C-370/05, Festersen, judgement of 25 January 2007, [2007] ECR I-1129. 187 Direct discrimination occurs where a state makes an explicit distinction between its own and foreign nationals, overtly treating the former more favourably than those from other Member States. 188 Indirect discrimination relates to provisions in national law that do not distinguish according to nationality or origin at first glance; nevertheless, a legal provision or administrative practice can have a discriminatory effect on nationals from other Member States. Such measures apply indistinctly to nationals and non-nationals, but nevertheless affect the latter to a greater degree.

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legislation applies to Member States only, but forms part of the acquis that candidate countries will have to integrate into their national laws. Directive 2000/43/EC goes beyond the area of employment and includes also the access to all types and levels of vocational guidance and training, social protection (including social security and healthcare), education and furthermore the access to and supply of goods and services which are available to the public, including housing (Art. 3, para. 1, lit. h).189 age or sexual orientation (e.g. Directive 2000/78/EC of 27 November 2000) as well as on The Directive implies also an obligation for Member States to provide for adequate procedures available to victims of prohibited discrimination in order to obtain appropriate compensation (Art. 15).

1.3. Fundamental Rights Since the Treaty of Amsterdam entered into force in 1999, the notion of fundamental rights has been provided in Art. 6 TEU, which states that the Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States (Art. 2 TEU). The EU is to respect fundamental rights, as guaranteed by the ECHR and as they result from the constitutional traditions common to the Member States, as general principles of Community law (Art. 6, paras. 2, 4 TEU). Candidate countries will have to respect these principles to join the Union (Art. 49 TEU).

Well before the Treaty of Amsterdam, the ECJ has developed fundamental rights in the EU in its case law.190 According to settled case-law of the Court, fundamental rights form an integral part of the general principles of law, whose observance the Court ensures. For that purpose, it refers to the constitutional traditions common to the Member States and international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories, such as the ECHR.191 The ECJ declared that respect for fundamental rights forms an integral part of the general principles of law protected by it,192 and that the Court cannot uphold measures incompatible with the fundamental rights established and guaranteed by the constitutions of the Member States193.

With the entry into force of the Treaty of Lisbon the Charter of Fundamental Rights of the EU has become legally binding.194 The Charter contains a catalogue of basic rights and fundamental freedoms, which reflect the constitutional traditions and international

189 If the Directive is properly transposed, it will offer protection against direct and indirect discrimination, both by public authorities and private parties; such horizontal effect explicitly provided for by the Directive clearly exceeds the general effects of directives as they emerge from the consistent jurisprudence of the ECJ. Hofmann, R., The impact of international norms on the protection of national minorities in Europe: the added value and essential role of the Framework Convention for the Protection of National Minorities, p. 7. 190 The first time the Court referred to Community fundamental rights was in 1969. ECJ, case 29/69, Stauder, judgement of 12 November 1969, [1969] ECR 419, para. 7. Other cases were e.g. ECJ, case 36/75, Rutili, judgement of 28 October 1975, [1975] ECR 1219; ECJ, case 44/79, Hauer v. Land-Rheinland-Pfalz, judgement of 13 December 1979, [1979] ECR 3727, para. 15; ECJ, case C-274/99, Connolly v. Commission, judgement of 6 March 2001, [2001] ECR I-1611, para. 37, and ECJ, case C-94/00, Roquette Frères, judgement of 22 October 2002, [2002] ECR I-9011, para. 25. 191 However, the ECJ held in 1996 that the treaties establishing the Community do not empower it to accede to the ECHR, even though all Member States were signatories to the Convention (Opinion 2/94 on Accession by the Community to the ECHR of 28 March 1996, [1996] ECR I-1759). 192 ECJ, case 11/70, Internationale Handelsgesellschaft mbH v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel, judgement of 17 December 1970, [1970] ECR 1125, para. 4. 193 ECJ, case 4/73, Nold v. Commission, judgement of 14 May 1974, [1974] ECR 491. 194 Before the Charter had been a soft law instrument. The European Commission and the EP scrutinised their legislative proposals for compatibility with the Charter (Art. 36 Rules of Procedure of the EP, also EP resolution of 15 March 2007 on compliance with the Charter of Fundamental Rights in the Commission's legislative proposals: methodology for systematic and rigorous monitoring (2005/2169(INI); Communication from the Commission, “Compliance with the Charter of Fundamental Rights in Commission Legislative Proposals”, COM(2005) 172 final of 27 April 2005). In addition, the Court of First Instance (CFI) referred to it for the first time in 2002 (CFI, case T-54/99, max. mobil, judgement of 30 January 2002, [2002] ECR II-313, para. 48). The ECtHR made reference to the Charter also in 2002 (ECtHR, Appl. No. 28957/95, Goodwin v. UK, judgement of 11 July 2002).

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http://en.wikipedia.org/wiki/Treaties_of_the_European_Union

http://en.wikipedia.org/wiki/European_Community

http://en.wikipedia.org/wiki/European_Convention_on_Human_Rights

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obligations common to the Member States.195 It provides that the Union recognises the rights, freedoms and principles set out in the Charter, as adapted at Strasbourg on 12 December 2007, which shall have the same legal value as the Treaties (Art. 6, para. 1 TFEU). However, there are several opt-outs: The UK and Poland have opted-out from the jurisdiction of the ECJ (Protocol No. 30); so has the Czech Republic in aiming to prevent potential property claims by Germans expelled from Czechoslovakia after World War Two under the Benes Decrees.

The review powers of the Court extend to acts of the Member States when they implement EU law.196 Outside the field of application of EU law, however, fundamental rights in EU law have no effect.197 Thus the Charter provisions apply to Union institutions, but to the Member States only when they are implementing Union law (Art. 51, para. 1 Charter). This principle, which is also derived from Art. 6, para. 4 TEU, applies to the central authorities as well as to regional or local bodies, and to public organisations, when they are implementing Union law.

In its jurisprudence the Court has so far referred to the relevant rights of the ECHR as well as to the common constitutional principles of the Member States; it can now also rely on the relevant articles of the Charter. As has been seen in the jurisprudence of the ECtHR, mainly the rights to property, to equality and non-discrimination, as well as to fair proceedings may be affected in cases concerning immovable property issues. This applies also to the freedom to conduct a business (Art. 16 Charter), which however has not been separate from the freedom to choose an occupation before its provision in the Charter; also, a similar right cannot be found in the ECHR. Therefore, its separate scope and application needs to be determined further by the ECJ. However, since as the Charter does not establish any new power or task for the Community or the Union, or modify powers and tasks defined by the Treaties (Art. 51, para. 1 Charter) and since the ECJ has already developed a body of human rights in its case law, which - as general principles - constitute a source of primary Community law, it is not clear what will be the novelties of the Charter in terms of its legal effects, though it arguably provides for a greater scope of substantive rights198 and provides a clear basis of primary law.

1.3.1. Right to property

The Court has consistently held that the right to property forms part of the general principles of Community law. Its scope is jointly determined by the legal systems of the Member States and the norms of Community law.199 The right to property in Community law is to be understood in a broad meaning and is not limited to the notions of “property” in the Member States. In order to determine the scope of the fundamental right, account must be taken inter alia of Art. 1 of Protocol No 1 to the ECHR establishing that right.200 The property must be lawfully acquired, although also unlawfully acquired legal positions can constitute property, as long as the mode of acquisition does not affect the property acquisition.201 The protection includes legal positions, though not commercial interests, and also legitimate expectations.202 It comprises movable as well as immovable property.203 The fundamental right to property also includes the so-called right of continuance and free disposition, thereby protecting the trust of the owners in the

195 ECJ, case C-540/03, Parliament v. Council, judgement of 26 June 2006, [2006] ECR I-5769, para. 38. 196 ECJ, case 5/88, Wachauf, judgement of 13 July 1989, [1989] ECR 2609, para. 19; now Art. 51, para. 1 Charter. 197 E.g. ECJ, case C-132/93, Volker Steen v. Deutsche Bundespost (No. 2), judgement of 16. Juni 1994, [1994] I ECR 2715. 198 While the substantive rights go beyond those that would have been derived from the law of the Member States, the provisions on the scope of the Charter and the competences of the EU are, if anything, narrower than the case law of the Court would provide; thus Member States are bound by fundamental rights when the act falls within the scope of Community law. Carozza, P., ‘The Member States’, p. 43. 199 Calliess, Ch., ‘The fundamental right to property’, p. 449. 200 ECJ, case C-347/03, Regione autonoma Friuli-Venezia Giulia and ERSA, para. 120. 201 Jarass, H.D., ‚Der grundrechtliche Eigentumsschutz im EU-Recht‘, p.1091. 202 Jarass, op.cit., p. 1093. It excludes mere expectations and chances. Bernsdorff, ‚Artikel 17‘, beckonline. 203 ECJ, case 44/79, Hauer v. Land-Rheinland-Pfalz, paras. 17 and 23.

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continuity of the legal positions created by the legislator, by virtue of which the owners are able to make use of their property; with the principle of legitimate expectations, they presuppose an element of trust based on measures taken by the Community or the Member States.204 However, the right to property is not an absolute right and must be viewed in relation to its social function. Consequently, its exercise may be restricted, in particular in the context of a common organisation of the markets, provided that those restrictions in fact correspond to objectives of general interest pursued by the Community and do not constitute a disproportionate and intolerable interference, impairing the very substance of the rights guaranteed.205

The Union and the Member States, in applying Community law, are bound by the right to property. Thus the Member States have to consider it, when they restrict the fundamental freedoms of the internal market. Moreover, also private law must be interpreted in conformity with fundamental rights.206

In Lisolette Hauer v. Land Rheinland Pfalz, the Court considered the validity of a Community regulation temporarily prohibiting the planting of new vines on certain lands. This regulation was challenged for violating the rights to property and to pursue a trade or profession as guaranteed by the German Basic Law. According to the Court, the right to property is guaranteed in the Community legal order in accordance with the ideas common to the constitutions of the Member States, which are also reflected in Protocol No. 1 to the ECHR. The Court held that the prohibition on the new planting of vines laid down for a limited period was justified by the objectives of general interest pursued by the Community, consisting in the immediate reduction of production surpluses and in the preparation, in the longer term, of a restructuring of the European wine industry. It did not therefore infringe the substance of the right to property. Similarly, the right of freedom to pursue a trade or professional activities must be viewed in the light of the social function of the activities protected. Such a measure did not affect access to the occupation of wine growing or the free pursuit of that occupation on land previously devoted to wine-growing and was an adjunct to the restriction placed upon the exercise of the right to property.

The right to property is stipulated in Art. 17 of the Charter, which provides that everyone has the right to own, use, dispose of and bequeath his/her lawfully acquired possessions. No one may be deprived of his/her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law, as far as this is necessary, for the general interest. The explanations to the Charter state that the meaning and scope of the right are the same as those of the right guaranteed by Art. 1 of Protocol No. 1 to the ECHR and the limitations may not exceed those provided for there. However, in contrast to Art. 1 of Protocol 1 ECHR the obligation to pay fair compensation for the loss is explicitly provided for.

Since the meaning and scope of the Charter right to property are the same as those of the right guaranteed by the ECHR, in principle the same cases that have been brought before the ECtHR are conceivable, as long as the facts come within the scope of the Treaty. This may be the case, for instance, if Member States restrict the fundamental freedoms of the internal market or even if they change the national legislation on 204 Ibid, 454. 205 ECJ, case 44/79, Hauer v. Land-Rheinland-Pfalz, para. 23; ECJ, case 265/87, Schräder v. Hauptzollamt Gronau, judgement of 11 July 1989, [1989] ECR 2237, para. 15, and ECJ, case C-280/93, Germany v. Council, judgement of 5 October 1994, [1994] ECR I-4973, para. 78; ECJ, case 5/88, Wachauf, para. 18; ECJ, case C-177/90, Kühn, judgement of 10 January 1992, [1992] ECR I-35, para. 16, and ECJ, case C-22/94, The Irish Farmers' Association and Others, judgement of 15 April 1997, [1997] ECR I-1809, para. 27; ECJ, case C-347/03, Regione autonoma Friuli-Venezia Giulia and Agenzia regionale per lo sviluppo rurale (ERSA) v. Ministero delle Politiche Agricole e Forestali, judgement of 12 May 2005, para. 119; ECJ, joined cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the EU and Commission of the European Communities, judgement of 3 September 2008, [2008] ECR I-06351, para. 355; ECJ, case C-306/93, SMW Winzersekt, [1994] ECR I-5555, para. 22, and ECJ, joined Cases C-37/02 and C-38/02, Di Lenardo and Dilexport, [2004] ECR I-0000, para. 82. 206 Jarass, op.cit., p. 1091.

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restitution in a way that does not account for the principle of legitimate expectations, i.e. the trust of citizens in the continuity of the legal positions created by the legislator, by virtue of which the owners are able to make use of their property. If ownership of property is not secure, because former owners may raise and win contesting claims, the existence of legitimate expectations in relation to property rights seems to be largely missing.

1.3.2. Right to equality and non-discrimination principle

The principle of equality is included in all European Constitutions and has also been recognised by the ECJ as a fundamental principle of Community law.207 The general principle of equal treatment requires that comparable situations are not treated differently and different situations are not treated alike, unless such treatment is objectively justified.208 Moreover, the Charter for Fundamental Rights provides for equality before the law (Art. 20 Charter) and prohibits any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation (Art. 21, para. 1 Charter) and discrimination on grounds of nationality within the scope of application of the TEC and of the TEU (Art. 21, para. 2 Charter). The non-discrimination principle draws on Art. 19 TFEU, Art. 14 ECHR and Art. 11 of the Convention on Human Rights and Biomedicine as regards genetic heritage. The explanations state that insofar as this corresponds to Art. 14 of the ECHR, it applies in compliance with it; para. 2 of Art. 21 of the Charter corresponds to Art. 12 TEC and must be applied in compliance with the Treaty. The difference to the existing provisions is that while Art. 19 TFEU does not have direct effect, Art. 21, para. 1 of the Charter is directly applicable, though, always within the scope of the Treaty.

1.3.3. Right to an effective remedy and to a fair trial

The ECJ has developed the principle of an effective remedy, which also applies to the Member States when implementing Community law.209 Moreover, Art. 47, para. 1 of the Charter provides for the right to an effective remedy and Art. 47, para. 2 to a fair trial. Everyone whose rights and freedoms guaranteed by EU law are violated has the right to an effective remedy before a tribunal (Art. 47, para. 1 Charter). Art. 47, para. 1 of the Charter is based on Art. 13 ECHR; however, according to the explanations, in Community law the protection is more extensive, since it guarantees the right to an effective remedy before a court.

Furthermore, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law (Art. 47, para. 2 Charter). Art. 47, para. 2 of the Charter corresponds to Art. 6, para. 1 ECHR. However, the explanations state that in Community law the right to a fair hearing is not confined to disputes relating to civil law rights and obligations, but applies to all kinds of administrative disputes. That is one of the consequences of the fact that the Community is a community based on the rule of law.210 Nevertheless, in all respects other than their scope, the guarantees afforded by the ECHR apply in a similar way to the Union.

207 ECJ, case 283/83, Racke, judgement of 13 November 1984, [1984] ECR 3791, judgement of 17 April 1997; ECJ, case 15/95, EARL, [1997] ECR I–1961, and ECJ, case 292/97, Karlsson, judgement of 13 April 2000, [2000] ECR I-2737. 208 ECJ, case 203/86 Spain v. Council [1988] ECR 4563, para. 25; ECJ, case C-15/95 EARL de Kerlast [1997] ECR I-1961, para. 35; ECJ, case C-292/97 Karlsson and Others [2000] ECR I-2737, para. 39; ECJ, case C-14/01 Niemann [2003] ECR I-2279, para. 49. 209 ECJ, case 222/84, Johnston, judgement of 15 May 1986, [1986] ECR 1651; ECJ, case 222/86, Heylens, judgement of 15 October 1987, [1987] ECR 4097 and ECJ, case C-97/91, Borelli, judgement of 3 December 1992, [1992] ECR I-6313. 210 ECJ, case 294/83, "Les Verts" v. European Parliament, judgement of 23 April 1986, [1988] ECR 1339.

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1.4. Compensation resulting from the prohibition of discrimination and the free movement of services Compensation or restitution has been dealt with by the ECJ in the context of physical injury inflicted in the context of the freedom to provide services in Art. 56 TFEU. This freedom includes the freedom for the recipients of services to go to another Member State in order to receive a service there, without being obstructed by restrictions; therefore, tourists, among others, must be regarded as recipients of service. In the case Cowan a British citizen was denied compensation for injury resulting from a violent assault suffered by him at the exit of a metro station during a brief stay in Paris. Such compensation was only available for persons of French nationality or foreign nationals with residence permit or from states with a relevant reciprocal agreement compensation from the State. The ECJ held that this contradicted the prohibition of discrimination and the freedom to provide services.211 Although compensation granted by national law was extended also to nationals of other Member States, since the compensation was given for physical injury, it is questionable, if this can be generalised to apply with regard to expropriations or restrictions on the use of immovable property before the entry into force of the Treaty.

1.5. EU/Stabilisation and Association Process The EU plays an important role in setting the political and economic criteria to be fulfilled by candidate countries in the Stabilisation and Association Process (SAP). Croatia, BiH and Kosovo are at different stages in the SAP with the EU:

Croatia has been a candidate country for EU membership since June 2004. The Stabilisation and Association Agreement (SAA) with the EU entered into force on 1 February 2005 and on 3 October 2005 the Council decided to open accession negotiations with Croatia.

BiH is a potential candidate country for EU accession since the Thessaloniki European Council of June 2003. On 16 June 2008 the EU and BiH signed the SAA, which will enter into force once its ratification process has been completed.

In Kosovo, the statehood of which has been recognised by 62 UN Member States and the Republic of China (Taiwan), including most EU Member States (except Cyprus, Greece, Romania, Slovakia and Spain), the Stabilisation Tracking Mechanism, a mirror instrument of the SAP, applies. This mechanism was started by the European Commission on 6 November 2002 and aims at building an institutional, legislative, economic and social framework directed by the values and models subscribed to by the EU, as well as at promoting the transition to a market economy.

The SAP requires fulfilment of the 1993 Copenhagen criteria. Property restitution enables legal security of tenure as well as a remedy of a violation of the right to property; it is therefore relevant for the political Copenhagen criteria (stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities). But property restitution is also relevant for the economic Copenhagen criteria (existence of a functioning market economy and the capacity to cope with competitive pressure and market forces within the Union), because it creates the very basis for a functioning market economy.

In the Annex to Annex III of the Luxembourg Conclusions of the General Affairs Council of 29 April 1997, the EU – further detailing its 1993 Copenhagen criteria – established certain conditions to be met by the SAP countries for the start of negotiations and the conclusion of SAAs. Among the conditions relating to human rights and the rule of law are the right to property, equality before and equal protection by the law, thw right to privacy, family, home and correspondence, access to courts and the right to fair

211 ECJ, case C-186/87, Cowan Ian William Cowan v. Trésor public, judgement of 2 February 1989, [1989] ECR 195.

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trial and effective means of redress against administrative decisions. These rights can be affected in cases relating to the restitution of immovable property.

In addition to the political and economic criteria in the SAP, the SAAs create a legal obligation for the approximation of laws through the adoption of the acquis communautaire. Several provisions in the SAAs of Croatia and BiH (the SAA of BiH is still to enter into force) can be relevant in the context of property restitution. First, the reference to human rights of the UDHR, international law principles and the rule of law as well as the principles of market economy in Art. 2 SAA, as the basis of the domestic and external policies of the Parties and essential elements of the SAA, provides benchmarks and thus results in a certain obligation, even though weak in legal, but strong in political terms, to tackle property restitution issues. Moreover, the provisions of the freedom of establishment212 and the free movement of capital213, even though they exclude certain categories of land (natural resources, agricultural land, forests and forestry land), each presuppose a functioning land market and thus a degree of completion of the restitution process which accounts for legal certainty in the acquisition and ownership of immovable property.214

The SAA with BiH contains similar provisions (general obligation, Art. 2 SAA; freedom of establishment, Art. 51, para. 5, lit. b SAA; protection of property rights, Art. 122

215SAA).

The annual Commission reports and European Partnerships serve as important incentives for the countries to implement (soft law) requirements of the EU to proceed on the path towards membership. The regular monitoring reports of the Commission covering the implementation of obligations by accession states and the Enlargement Strategy as well as the European/Accession Partnerships216, excerpts of which are rovided below, also deal with restitution/compensation of property rights.

p

212 In the article on the freedom of establishment the SAA provides that subsidiaries of Community companies have the right to acquire and enjoy ownership rights over real property just like Croatian companies, excluding natural resources, agricultural land, forests and forestry land. Four years after the entry into force of the SAA the Stabilisation and Association Council is to establish the modalities for extending rights to the excluded sectors (Art. 49, para. 5, lit. b SAA) as well as to branches of Community companies (Art. 49, para. 5, lit. c SAA). 213 The article on the free movement of capital provides that Croatia is to authorise, by making full and expedient use of its existing procedures, the acquisition of real estate by nationals of EU Member States, except for areas and matters listed in Annex VII (agricultural land as defined by the Agricultural Land Act (Narodne novine no. 54/94, consolidated text, 48/95, 19/98 and 105/99) and areas protected under the Environmental Protection Act (Narodne novine no. 30/94)). Within four years from the entry into force of the SAA, Croatia is to progressively adjust its legislation on the acquisition of real estate by nationals of the EU Member States to ensure the same treatment as compared to Croatian nationals. At the end of this period, the Stabilisation and Association Council is to examine the modalities for extending these rights to the areas and matters listed in Annex VII (Art. 60, para. 2 SAA). Proportionate, non-discriminatory restrictions to the acquisition of real estate based on general interest are permitted (Joint Declaration concerning Art. 60). 214 Moreover, Art. 117 SAA provides that within the scope of the SAA, each Party undertakes to ensure that natural and legal persons of the other Party have access free of discrimination in relation to its own nationals to the competent courts and administrative organs of the Parties to defend their individual rights and their property rights. 215 However, in contrast to the SAA with Croatia, the time period for adjusting the legislation concerning the acquisition of real estate by nationals of the Member States is six years, rather than four (Art. 61, para. 3 SAA). The Joint Declaration on Arts. 51 and 61 states that BiH can implement the limitations on the acquisition of or use of ownership rights over real estate on the grounds of public policy, public security and public health, provided that those limitations apply without discrimination to both, BiH and Community companies and nationals. 216 The Accession Partnerships adopted by the Council on the proposals of the Commission in the form of Decisions on the basis of Regulation No. 622/98 changed the nature of the Copenhagen criteria. Art. 4 of the Regulation made the reception of accession aid conditional on their fulfilment, thus introducing the criteria, previously mostly political in nature, into the field of legal regulation of enlargements (Council Regulation (EC) No. 622/98 of 16 March 1998 on assistance to the applicant States in the framework of the pre-accession strategy, and in particular on the establishment of Accession Partnerships. Kochenov, D., ‘EU Enlargement Law: History and Recent Developments: Treaty-Custom Concubinage?’, p. 16. The Accession Partnerships list country-specific priorities combined with a corresponding package of measures as well as clearly defined schedules. Cf. Siedentopf, H. and Speer, B., ‘The European administrative space from a German administrative science perspective’, p. 11.

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BiH

The Progress Report 2007 notes that the process of repossession of property by displaced persons has been successfully completed (para. 18). It also mentions the creation of a Land Administration Coordination and Advisory Board in the Ministry of Justice at State level. It is made up of representatives from the Entity Geodetic Administrations, the Entity Ministries of Justice and international donors (para. 30).

The Enlargement Strategy 2008 and the 2009 Progress Report mention that progress has continued in the areas of property rights and land administration reform; the mandate of the CRPC has been extended to address residual property repossession cases (p. 25).

The Progress Report 2008 mentions that a new technical regulation on management of real estate cadastre information came into force in April 2008 in the Federation. However, the law on property rights was not yet in place in Republika Srpska (para. 19). In addition, the bill on restitution, which had not yet been adopted, may jeopardise fiscal sustainability, if it fails to align financial compensation with the budget’s long-term ability to pay (para. 28).

The Enlargement Strategy 2009 concludes that a country-wide strategy aimed at supporting the return process and ensuring proper implementation of Annex VII of the Dayton/Paris Peace Agreement still needs to be adopted.

Croatia

The Progress Report 2005 divided the housing problem into the areas of reconstruction, provision of housing care for former tenancy right holders and repossession of property. A number of proceedings existed at domestic courts on whether the termination of occupancy and tenancy rights was legally justified and the Blečić v. Croatia case was pending at the ECtHR. Only a handful of properties were still occupied ‘illegally’ i.e. without the owner’s consent and not on the basis of the Law on Temporary Take Over and Administration of Specified Property of 1995. The Government’s deadlines to finalise the process of property restitution had been put back several times from the original deadline of 2002 (p. 29).

The Progress Report 2006 states that the main housing problem for refugees remains the extremely slow implementation of housing care programmes within and outside the Areas of Special State Concern (ASSC) for those former tenancy right holders who wish to return (p. 16). However, the situation concerning reconstruction of housing continued to improve. Only a relatively small number of the 20 000 or so houses that had been occupied remained to be repossessed and handed over to their rightful owners (p. 18). As regards damage/looting by the temporary occupant or third persons, a repair programme had been put in place (p. 17). However, there was a backlog in payment of compensation to owners for delays in repossessing their property (pp. 15).

The Progress Report 2007 noted that the ECtHR had ruled that a delay of several years in returning private property allocated by the state to third persons during the armed conflict violated the owners' rights to property (p. 10). Provisions discriminating on grounds of nationality had not been removed from the law on the restitution of nationalised property (p. 12).

The Progress Report 2008 stated that there were outstanding cases of delayed property repossession and problems with compensation for the use of private property taken under war legislation from the 1990s. The process of restitution and compensation for property nationalised after World War II continues to go slowly (p. 12).

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The Accession Partnership of 2008 mentioned as key priorities to definitively settle all cases of housing care for former occupancy/tenancy rights holders, complete reconstruction and repossession of property and reopen the possibility for convalidation claims (p. 4), as well as to enhance efforts to find definitive solutions to bilateral issues, for which some Member States underlined the importance of accelerating the process of restitution of property, in line with the relevant Croatian Constitutional Court rulings.

The 2009 Progress Report states that outstanding cases of delayed property repossessions and problems with compensation for the use of private property taken under the war legislation from the 1990s continue to be present, though there has been progress in providing housing solutions to returning refugees. Definitively settling all cases of former tenancy rights holders who wish to return to Croatia is a key Accession Partnership priority. Regarding reconstruction of housing, around 8,000 appeals are still pending, most of which for more than four years. Regarding property repossession there has been progress in returning previously occupied agricultural land plots to the pre-war possessors and rightful owners (p. 15). Land registration has improved, but remains incomplete in parts of the country (p. 23).

Kosovo

The Progress Report 2005 stated that property rights suffer from incomplete and sometimes missing records, inadequate property related legislation, implementation problems, ineffective municipal regulation of construction, discriminatory practices and lack of coordination between responsible actors. Overall, the illegal occupation of property, including agricultural land and commercial property continues to affect individuals' rights to property and hamper economic development, the returns process and the establishment of the rule of law. The lack of access to judicial and cadastral records that were removed or destroyed before and during the 1999 conflict adversely affects the reliability of both the cadastre and immovable property rights register (p. 19).

The Progress Report 2006 mentions parallel administrative structures regarding property registration, causing legal uncertainty for property rights holders (p. 9). The implementation of the immovable property rights register was ongoing (p. 14).

The Progress Report 2007 mentions a draft law on sale of apartments with tenure rights, which recognises the tenure right on socially-owned properties as defined in the former Yugoslavia as a possession right; however, its vague provisions create the risk of contradictory interpretations and subsequent injustices, in particular against Kosovo Serbs and Roma. The Kosovo Property Agency had difficulties in executing property-related decisions, especially in the case of evictions related to the illegal occupation of property (p. 20).

The Enlargement Strategy 2007 admits that property rights are not always guaranteed and are subject to ambiguities and legal uncertainties (p. 52).

The Progress Report 2008 mentions that the Kosovo Property Claims Commission started its work under the auspices of the Kosovo Property Agency (p. 21). A law was adopted to amend a regulation on property claims, transferring the competence of UNMIK for the KPA to the Kosovo authorities and the International Civilian Representative. However, many displaced persons were awaiting the restitution of residential, agricultural or commercial property (p. 22).

The Enlargement Strategy 2008 mentioned that little progress had been achieved in the area of property rights, the fact that Kosovo authorities are not allowed access to the land register in Belgrade being a major obstacle to progress (p. 56).

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The 2009 Progress Report mentions that the draft Law on Sales of Apartments where Tenure Rights exist had been amended to regulate the privatisation of socially-owned apartments. Overall, the institutional and legal framework had been strengthened but has led to limited progress in practice in the area of property rights, a key European Partnership priority (p. 16). The inability of the authorities to implement their decisions throughout Kosovo remained a major obstacle to protecting property rights.

The Enlargement Strategy 2009 concludes that the institutional and legal framework in the area of property rights had been strengthened. The inability of the authorities to implement their decisions throughout Kosovo remained a major obstacle to protecting property rights. The weak rule of law, corruption, prevalent in many areas, and uncertainty over property rights continued to be major impediments to economic development (p. 62).

2. Possible action of the EU When discussing the possible action and effects of EU law in Western Balkan countries, it is necessary to distinguish between associated and non-associated countries:

Croatia and BiH (the latter after entry into force of its SAA) are countries with association agreements. In these countries EU law applies only indirectly through the obligations to take over the acquis set out in the agreement.217

Kosovo 218 has not signed an association agreement. Therefore, EU law does not apply as such; however, it may nevertheless have effects, because it is seen as politically authoritative and therefore transposed into internal law.

Moreover, standards set in the framework of the enlargement process, e.g. with regard to human rights, which are not set out explicitly in the Treaties and for which there is no case-law of the ECJ, can constitute soft law, which is considered politically binding in the framework of the SAP. In the future, after the countries have acceded to the EU, EU law will have the same effect as in the Member States, for which the whole body of EU law applies, if there are no country-specific opt-outs.

Possible action of the EU for improving property rights in the Western Balkans are therefore mostly set within external relations, since BiH, Croatia and Kosovo are participating in the SAP, with Croatia and BiH (yet to enter into force) having concluded a SAA.

Thus conditionality should continue to be used to achieve fair property restitution/compensation through instruments of the SAP, such as the annual Progress Reports of the Commission and European Partnerships. The Bonn-powers of the High Representative/EU Special Representative in BiH and the special powers of EULEX KOSOVO in Kosovo (see Section 2.3) enable the conditioning of aid to concrete instances of progress.

Continued assistance by the EU which is linked to conditionality within the SAP is essential for capacity building and anti-corruption, which will eventually lead to a functioning land market based on the rule of law.

Restitution should be the first solution and compensation awarded only, where restitution is not possible. Restitution should not be considered impossible, if property acquisition was not bona fide.

217 Since SAA constitute international agreements, any possible direct effect depends on the respective constitutional rules on the effects of international agreements in domestic law. Salamun, M., ‚Niederlassungsregelungen der EU mit Südosteuropa im Vergleich‘, p. 365. 218 Different theories on statehood and legal capacity in international law are not discussed here due to lack of space. For practical reasons, Kosovo is referred to as a State.

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Secondary occupants with legally valid claims on acquired rights should be taken into account, at least with the provision of some form of compensation and/or of alternative accommodation.

Restitution claims should not be rendered void due to the passage of time, but extend to heirs of property as well as non-citizens and non-residents.

As regards legislative acts of the EU, it depends on how far one concedes the EU competence to regulate property in the Member States.219 Since the notion “system of property ownership” in Art. 345 TFEU is not very clear in this respect, different interpretations will be possible. If one is of the opinion that the scope of the EU competence is a narrow one, legal acts that fall outside its exclusive competence will have to be put into practice through the conclusion of international agreements.

If one holds the opinion that the scope of the EU competence is broad, which is the case in this study (see Section 1.1 of this Chapter), legislative acts can be adopted in the form of regulations or directives. Art. 115 TFEU provides for directives for the approximation of such laws, regulations or administrative provisions of the Member States, which directly affect the establishment or functioning of the common market. In any case the ECJ can develop the law through its jurisprudence, because it is not bound by precedent.

Thus the following legislative and informal coordination actions could improve property issues, especially the restitution/compensation of immovable property, following communism or the Yugoslav conflict/war and thus contribute to a functioning land market:




219 It does not make sense to distinguish between private and public law, as the competency in the Treaties is based on functional criteria, which do not distinguish between private and public law, but link the legislative competencies of the Community with the functioning of the common and internal market, the effectiveness of the fundamental freedoms, the protection against distortions of competition or the realisation of the objectives of the Community in the framework of the common market. Müller-Graff, P.-Ch., ‚Europäisches Gemeinschaftsrecht und Privatrecht - Das Privatrecht in der europäischen Integration‘, p. 17.

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Part Two – PRIVATE PROPERTY ISSUES IN BOSNIA AND HERZEGOVINA, CROATIA AND

KOSOVO

Chapter 1 –BOSNIA AND HERZEGOVINA

1. Overview of properties to be subject of restitution 1.1. General situation The conflict in BiH lasted from 1992 until the signing of the General Framework Agreement for Peace (hereinafter: Dayton Peace Agreement or DPA) on 14 December 1995.220 During this conflict an estimated number of 2.2 million persons left their pre-war homes.221 In the international and national documents and statistics there is a difference between refugees (person who left BiH) and displaced persons who did not depart from BiH. The return of the refugees and displaced persons and the restitution of deprived property or compensation for destroyed or damaged property were or still are an enormous issue in BiH, because in the moment the conflict ended more than half of the pre-war population of BiH fell into either of the two categories and was deprived of their real estates and pre-war homes.222

The reasons for leaving their homes were different – some of these persons were forcibly displaced, some of them fled from active fighting or from circumstances in which the supply, health protection and education were hindered. Some people voluntarily left the territory where they constituted a minority changing by legal act their real estate with other persons who for their part had left the territory where they were a minority.223 Both parties performed this exchange in order to move to the territory where their ethnic group represented a majority.

But on certain territory ethnic groups were forcibly displaced because they constituted an ethnic minority. In some parts of BiH the politics of so-called “ethnic cleansing” was enforced. Very often the deprivation of property was a means of the pressure on the members of a certain ethnic group in order to force them to leave a certain territory. The sanction in terms of deprivation and allocation of property to other persons has not always been caused by the affiliation to another (minority) ethnical group. Also the members of the majority ethnic groups of one region suffered these sanctions when they left their real estate, particularly in cases of leaving the apartment on which they had the occupancy right (more on this subject see Section 1.4.1.).

220 In parts of BiH and in some international documents and judgements this conflict has been considered as an aggression by the former Yugoslav National Army and by the Federal Republic of Yugoslavia, i.e. Republic of Serbia, in other parts of BiH it has been seen as a national conflict or civil war. For the purposes of this study only the neutral term „conflict” will be used. 221 Briefing Note “UNHCR and Annex 7 in Bosnia and Herzegovina”, UNHCR, October 2007, p. 1 (www.unhcr.ba). Some sources operated with the number of 2.3 million refugees and displaced persons. So Prettitore, P., The Right to Housing and property Restitution in Bosnia and Herzegovina, p. 5. 222 2nd Report of the High Representative to Implementation of the Bosnian Peace Agreement to the Secretary General of the United Nations of 10 July 1996 (www.ohr.org). 223 This legal transfer later became problematic; it was necessary to prove that the exchange had not been performed under pressure.

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http://www.unhcr.ba/

http://www.ohr.org/


The returns began shortly after the signing of the DPA. According to statistics of the UNHCR Representation in BiH224 the major returns of both, refugees and displaced persons, occurred in the years 1996, 1997 and 1998 and declined substantially (see diagram).225

In the years 2000, 2001 and 2002 the number of returns increased again. The analysis of the legal system will show that in this period the activity and efforts of the Office of the High Representative (hereinafter: OHR) in implementing Annex 7 to the DPA on refugees and displaced persons were at their height. In this time period the High Representative enacted numerous legal acts in order to compensate for the activity of the national authorities or to revise the national legislation, which was in certain issues restrictive or discriminatory. From 2003 until 2009 the OHR did not enact any decision in the field of so-called “property laws”, while in 1999 it had issued 29 decisions related to this topic.226 This corresponds with the transition of responsibility from international to the national authorities. The High Representative assessed that the principal targets for the transition to domestic leadership on Annex 7, as a guarantee of the right to return, were achieved in 2003. This assessment may be considered as too optimistic.

1.2. Kinds of properties During the conflict in the entire BiH all kinds of property (real estate, personal estates and incorporeal assets, e.g. different rights) were the subject of deprivation. Annex 7 does not make any difference between different kinds of assets. Refugees and displaced persons have a right to restitution/compensation for their property regardless of its nature. For the scope of this project only the restitution of the immovable assets is relevant.

During socialism different kinds of immovable assets (e.g. buildings, apartments, agricultural land, construction land, woodland) were subordinated to different legal regimes. This differentiation has major consequences even today for the solution of issues regarding restitution and compensation. Moreover, the legislation on abandoned property differentiated between private property on real estates and rights on socially-owned apartments. The question of the restitution/compensation of abandoned property is closely related to questions of denationalisation (for the different legal regimes governing the different immovable assets see Section 1.4).

224 See UNHCR's Returns summary to Bosnia and Herzegovina from 1 February 1996 to 30 June 2009, www.unhcr.ba. 225 See, ibid. 226 At www.ohr.int/decisions/plipdec/archive.asp.

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1.3. Denationalisation vs. displacement/occupation of abandoned properties in the regional conflict For a better understanding of the legislation on the restitution of real estate property owned by citizens and on the restitution of abandoned socially-owned apartments, it is necessary to present briefly basics on denationalisation.

Similar to most other socialist countries, during the decades of socialism the legal order in the former Socialist Federal Republic of Yugoslavia (hereinafter: SFRY) and the Socialist Republic BiH was characterised by a dichotomy between state and private ownership. The former had a dominant role and was better protected. Some assets were exclusively in state property227 (construction land in the urban areas) or predominantly in state property (apartments). BiH separated from former Yugoslavia in the phase of through crucial reforms of the socialist economy, the legal system as well as the property order. The Amendments to the Constitution of SFRY (1988)228 and to the Constitution of the Socialist Republic of BiH (1989 and 1990)229 represented the main measure of the reform of the property order – a guarantee of property was established, the restrictions on private property were abrogated and all types of property rights (private and public property) were declared equal. Although the transformation process had been initiated several years before the dissolution of the former SFRY, denationalisation had not been performed before the conflict. During the war (1992-1995) this reform process was interrupted or slowed down, and today, more than ten years after the war ended, the reforms of the property order have not yet been completed. Legislation on denationalisation and restitution has not been adopted until now;230 thus denationalisation had not even started let alone been concluded, before the displacement/occupation of abandoned properties took place.

However, on the eve of the war, in order to prepare the denationalisation process and to ensure natural restitution, some measures were adopted: The disposal with certain - at that time still - state-owned assets, which could be subject to restitution, was forbidden.231 This prohibition, provided for 18 years ago without later enactment of legislation on denationalisation, cannot be effective.232 During the conflict as well as after the conflict had ended, in several cases even until today, this prohibition to dispose with state-owned real estate was evaded. In practice some authorities (e.g. municipal authorities) transferred some state-owned real estate to a certain person, thus violating the prohibition as well as the future right to restitution of the original owner (person who had been owner in the moment of nationalisation).233

227 In this study the terms socially-owned asset and state-owned asset will be used in parallel. These terms are not synonyms at all. Furthermore, there is a huge ideological difference between them. But for the purpose of this study they will be used as equal terms to describe non-private property. 228 Amendments IX-XLII to the Constitution of the SFRY [Amandmani IX – XLII na Ustav Socijalističke Federativne Republike Jugoslavije], Official Gazette of SFRY 70/88 i 57/89. 229 Amendments XX-LVIII to the Constitution of the SR BiH [Amandmani XX-LVIII na Ustav Socijalističke Republike Bosne i Hercegovine], Official Gazette of SR BiH 13/89, as well as Amendments LIX-LXXX to the Constitution of the SR BiH [Amandmani LIX-LXXX na Ustav SR BiH], Official Gazette of SR BiH 21/90. 230 Republika Srpska passed two laws on restitution (the Law on Restitution of the denationalised Real Estate and the Law on denationalised Agricultural Land, both published in the Official Gazette of the Republika Srpska 21/96). After a short period of time these laws were replaced by the Law on the Restitution of denationalised Property and on Compensation (Official Gazette of the Republika Srpska 13/00), but these laws were annulled by the Decision of the High Representative (Official Gazette of the Republika Srpska 31/00). 231 Law on Amendments of the Law on Transfer of Real Estate [Zakon o izmjenama i dopunama Zakona o prometu nepokretnosti], Official Gazette of the Socialist Republic BiH 22/91, Art. 16a. 232 Since 1999 the High Representative repeatedly ordered the prolongation of the temporary prohibition of the disposal with some state-owned assets (Official Gazette BiH 13/00, 34/00, 11/01, 24/02, 13/03). Later the High Representative imposed the Law on Temporary Prohibition of Disposal of State Property [Zakon o privremenoj zabrani raspolaganja državnom imovinom], Official Gazette BiH 18/05. 233 The assessment of the Ombudsmen of the Federation BiH published in Večernje novine, 18 September 1998 and the Special Report of the Ombudsmen addressed to the Government of the Federation BiH of 19 September 1998 with the recommendation to enact urgently the law on denationalisation (see ombudsmeni u BiH, p. 229).

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The fact that denationalisation of state-owned apartments and construction land had not been completed before the conflict has a huge impact on the restitutions topic. The legislation on abandoned property in both entities differentiated between the restitution/compensation of assets in private property and that of state-owned assets, which were held by private persons on the basis of an occupancy right or other rights of use. In the Federation BiH both, deprivation and restitution have been regulated by different laws depending on the facts, whereas private property or the right of use of state-owned assets have to be subject to restitution. In the Republika Srpska both issues were regulated by one single law, but in a different way. Some very important problems relating to the restitution of state-owned apartments and state-owned construction land arose due to the fact that denationalisation had not been performed before the conflict (for more see Section 1.3.2. and 3.1.2.2.1.).

1.3.1. Socially-owned apartments and occupancy rights

During socialism the usual way to obtain an apartment was not to buy or rent it, but to acquire the occupancy right (stanarsko pravo). This issue was regulated in the Socialist Republic BiH by the Law on Housing Relations.234 The socialist state, enterprises or other socialist juridical persons built apartments and allocated them to their workers and employees through the issuance of occupancy rights. The occupancy right cannot be identified with ownership – this right could not be transferred by a legal act or encumbered. Also this right could be inherited only by a very restricted number of persons. The essence of this right was the use of the apartment for the personal needs of the occupancy right holder and the needs of his/her own family. The cessation of the use (for 6 months or longer) without justified reasons, as listed in the Law on Housing Relations, led to the loss of this right.235 However, absence caused by conflict or displacement was not foreseen as a justified reason.

In both, the Federation BiH and Republika Srpska, the former socialist Law on Housing Relations was adopted.236 The provision on the loss of the occupancy right by non-use (Art. 47, para. 1) was broadly misused during the conflict allowing the local authorities to declare empty apartments as abandoned and to re-allocate them. The occupancy right of the former user was terminated and in many cases the new user acquired the occupancy right by the decision of the local authority and by the acquirement of the possession of this apartment (in other cases the apartments were allocated to temporary users).

This situation represented one of the biggest practical obstacles hindering the right to return.237 The use of "socially-owned" property had not been considered at first as one of the rights set forth in Annex 7 to the DPA. As a result, persons have been denied return to their pre-war residences.238 The Human Rights Chamber set in several decisions the standards in accordance to which the apartment has to be considered as the applicant's

234 Official Gazette of the Socialist Republic BiH 14/84, 12/87, 36/89. 235 Art. 47, para. 1 Law on Housing Relations. 236 Federation BiH: Law on Taking Over of the Law on Housing Relations [Zakon o preuzimanju Zakona o stambenim odnosima], Official Gazette of the Federation BiH 11/98, 38/98, 12/99, 19/99. RepublikaSrpska: With Art. 12 of the Constitutional Law for Implementation of the Constitution of the Republika Srpska, each law enacted in former Yugoslavia or SR BiH was recognised as a law of the Republika Srpska, if it was not contrary to its Constitution, thus also the Law on Housing Relations. This law was amended and supplemented by further legislation of the Republika Srpska, namely the Law on Amendments of the Law on Housing Relations [Zakon o izmjenama i dopunama Zakona o stambenim odnosima], Official Gazette of the Republika Srpska 19/93, 22/93, 12/99. Croat Community Herceg-Bosna: Decree of the Application of the Law on Housing Relations [Ureddba o primjeni Zakona o stambenim odnosima], Official Gazette of Croat Community HB 13/94. 237 Until 2004 private real estate had largely been restored, while the restitution of socially-owned apartments had been far more problematic. Williams, R.C., Post-conflict property restitution in Croatia and Bosnia and Herzegovina: legal rationale and practical implementation, p. 15. 238 2nd Report of the High Representative for Implementation of the Bosnian Peace Agreement to the Secretary-General of the United Nations of 10 July 1996.

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home239 or possession240 for purposes of Art. 8 ECHR (right to private and family life) and Art. 1 of Protocol 1 (right to property).

Besides the problem of misuse by local authorities, another problem has resulted from the fact that denationalisation of apartments was possible only after the conflict and displacement. After the end of the conflict both entities and the Brčko District BiH enacted legislation on privatisation (denationalisation) of the state-owned apartments.241 The right to buy the apartment under very favourable conditions in the process of privatisation belonged to the occupancy right holder.242 A very crucial issue in this process was the question, if some person has or does not have the occupancy right. As described above, the norms on occupancy rights were of socialist origin and provided for the possibility of the termination of those occupancy rights, where their holders did not use the apartment during a given period of time. Local public authorities declared those apartments as abandoned, disposed with them and allocated them to other persons who acquired the occupancy right. The norms enacted during the conflict excluded thereby the pre-war occupancy right holder from the right to buy the apartment in the privatisation process.

The OHR issued a decision to amend at this point the entities' laws on the cessation of the application of the laws on abandoned apartments, which declared all occupancy rights acquired during the conflict and in post-conflict time null and void. The persons who had acquired such rights were after that simply considered as temporary users (see Section 3.1.2.1.). This fact facilitated the return and repossession, but caused other problems. Overall, the situation in this field was very chaotic. The legislation on the privatisation of the socially-owned apartments was very often changed by national authorities and by the OHR243, not only through enactment of or amendments to legal provisions; rather, some bylaws and some obligatory instructions were also enacted by the OHR.244

1.3.2. Construction land

In 1958 the Law on Nationalisation of Construction Land and of Rental Apartments was enacted in former socialist Yugoslavia and these two assets were nationalised and transferred into state property. Natural or legal persons had different rights relating to the use of state-owned construction land. In the socialist legal system „the right of use” indicated the right to limited use of the construction land in state property. However,

239 Turčinović vs. Bosnia and Herzegovina and Federation BiH CH/96/31, Kevešević vs. Federation BiH CH/97/46. 240 The decision to declare an apartment abandoned over which someone enjoyed an occupancy right, and the allocation thereof to another person amounted to a de facto expropriation and consequently the violation of the Art. 1 of Protocol No. 1. Eraković vs. Federation BiH CH/97/42. 241 Federation BiH: Law on the Sale of Socially-owned Apartments [Zakon o prodaji stanova na kojima postoji stanarsko pravo], Official Gazette of the Federation BiH 27/97, 11/98, 22/99, 27/99, 7/00, 25/01, 32/01, 61/01, 15/02, 54/04, 36/06, 51/07, 72/08 Law on Repossession, Reinstatement and Sale of Apartments [Zakon o vraćanju, dodjeli i prodaji stanova], Official Gazette of the Federation BiH 28/05, 2/08. Republika Srpska: Law on Privatisation of State Owned Apartments [Zakon o privatizaciji državnih stanova], Official Gazette of the Republika Srpska 11/00, 18/01, 20/00, 35/01, 47/02, 65/03, 3/04, 70/04, 2/05, 67/05, 70/06, 38/07, 72/07 – revised version, 59/08, 58/09. Brčko District BiH: Law on Sale of Socially-owned Apartments in Brčko District BiH [Zakon o otkupu stanova na kojima postoji stanarsko pravo u Brčko Distriktu BiH], Official Gazette of the Brčko District BiH 10/02, 17/04, 41/06, 19/07, 2/08. 242 The occupancy right holder could buy the apartment not only in cash but also primarily with certificates (Federation BiH) or voucher (Republika Srpska) and at a very low price. 243 See footnote 254. 244 Federation BiH: Instruction on Implementation of the Provisions of the Articles 39a., 39b. and 39c. of the Law on the Sale of socially-owned Apartments [Instrukcija za sprovođenje odredba čl. 39a., 39b. i 39c. Zakona o prodaji stanova na kojima postoji stanarsko pravo], Official Gazette of the Federation BiH 6/00. Republika Srpska: Decision of the High Representative for BiH on the Temporary Suspension of Privatisation of Apartments [Odluka Visokog predstavnika za BiH o privremenom obustavljanju privatizacije stanova], Official Gazette of the Republika Srpska 65/01, Decision of the High Representative for BiH on Termination of the Temporary Suspension of Privatisation of Apartments [Odluka Visokog predstavnika za BiH o prestanku privremenog obustavljanja privatizacije stanova], Official Gazette of the Republika Srpska 23/02, Regulation on the Status of State-Owned Apartments which were privatised before the Enactment of the Law on Privatisation of the Apartments in State Property [Uredba o statusu državnih stanova otkupljenih prije donošenja Zakona o privatizaciji državnih stanova], Official Gazette of the Republika Srpska 86/02.

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those rights were not rights in rem, transferable and heritable. The pre-nationalisation owner had the temporary right to use this land until the allocation to another person for building purposes. In this case the pre-nationalisation owner had also the priority building right. In cases in which the pre-nationalisation owner or the person to whom this construction land was allocated for building purposes had built a building, they received the permanent right to use. The permanent right to use existed as long as the building existed; the destruction of the building lead to the termination of this right.

The precondition for using these rights was the possession of the construction land. When the construction land was abandoned or the building destroyed during the conflict, the municipal authorities considered this land as free and, as owners of this piece of land, re-allocated it. This procedure was often performed in 1996 and 1997, after the conflict had ended.245 The municipal authorities ordered in many cases the demolition of the damaged building with the explanation that this building endangered the environment in order to allocate this free and undeveloped parcel of land to other persons.246

1.3.3. Conclusion

The Ombudsman of the Federation BiH stated that the public authorities were profiting from the fact that legislation on denationalisation had not yet been enacted. They manipulated with the assets nationalised during socialism thereby hindering the return of refugees and displaced persons.247 The OHR played a very important role in protecting persons having occupancy rights and rights of use by imposing the appropriate norms (see Section 3.1.2.2.1.). The Human Rights Chamber also played a hugely positive role and, after 2004, the Constitutional Court BiH as well – the occupancy right and rights of use of the socially-owned real estate were protected as rights to a home (see Section 3.2.3.).

The fact that the process of denationalisation had not been concluded before the displacement, deprivation and occupation of real estate took place caused additional problems in the process of the return of the refugees and displaced persons.

1.4. Specific problems related to the land register/cadastre Since the end of 19th century land registries in BiH had been established by the Austro-Hungarian Monarchy and the first cadastre survey of BiH had been conducted. In 1930 and 1931 three land registry laws were adopted in the Kingdom of Yugoslavia, regulating the establishment and organisation of the land registries as well as the procedure of registration. They represented an adoption of the solutions from Austrian land registry law with the task to implement them in the whole Kingdom of Yugoslavia.248 After adoption of the three laws in 1930/31, in BiH land registries continued to exist and were maintained in accordance with the new (the same) laws. During World War II in some regions of BiH the land registries were completely destroyed or damaged and were not completely reconstructed after the war. During socialism the land registries existed and

245 In the legislation of the Federation BiH the different rights of use exist until now. Even today the same category of construction land can be withdrawn from the pre-nationalisation owner and allocated for construction purposes to other persons. However, this procedure is not only related to the problematic of refugees and displaced persons. The dispossession can affect also resident people. Since 2001 this problem ceased to exist in the Brčko District BiH, because those rights of use were abandoned in the new codification of property rights and transformed into heritable buildings rights. The same situation like in the Federation BiH existed in the Republika Srpska until 2006, when the socialist rights of use were definitely abrogated by the enactment of the new Law on Construction Land. But even after this Law was enacted, the practice of the allocation of not built-up construction land to other persons, moreover, even to persons who were not displaced, continued in some cases in the Republika Srpska. See the blatant example of village Kotorsko. 246 Report of the Ombudsman, Večernje novine of 18 September 1998. 247 Report of the Ombudsman for 1997, in: Prvi ombudsmeni u BiH, p. 43. 248 Law on Land Register [Zakon o zemljišnim knjigama], Law on Organisation, Establishment and Replacement of the land registers [Zakon o unutrašnjoj organizaciji, osnivanju i izmjeni zemljišnih knjiga] (1930), and Law on Land register's divisions, separations and attributions [Zakon o zemljišnoknjižnim diobama, otpisima i pripisima] (1931).

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were administrated based upon legislation from 1930/31. Due to a vast range of reasons, not every transfer or acquisition was registered in the land registers, which therefore became incorrect to a large extent.249 Particularly, state ownership was not registered.

On the Conference held in Brussels on 23-24 May 2000 the Peace Implementation Council gave the land registry reform top priority in BiH. In 2001 the new legislation on land registry was enacted in the Brčko District BiH and in 2002 imposed by the High Representative in both entities.250 The implementation of this legislation and the establishment of the registry for each part of BiH has been supported within a matching project of the national authorities and several international organisations. This process as well as the process of undertaking the new cadastral survey for BiH is ongoing, but it will take a considerable time until the final accomplishment of this task.

This fact causes huge problems in the restitution/compensation process. The owners or holders of some rights on real estate in many cases have problems to prove their right because the situation in the register and the situation on the terrain differ sharply. It was in some cases impossible to prove the property right in judicial procedure without an abstract of title. The property was deprived during the conflict, declared as abandoned and re-allocated, a protocol on this was drawn up, but the ownership claims submitted to the court with the requirement to repossess the property were dismissed due to the impossibility to prove the ownership.251 For this reason the regulation on the Commission for Real Property Claim of Displaced Persons and Refugees (hereinafter: CRPC; see Section 3.2.2.) requested from the person claiming restitution to prove pre-war possession, i.e. the factual situation, but not the existence of the property right.

1.5. Estimation of financial value There is no official estimation of the current financial value of the targeted property. The two crucial problems are: First, there is no relevant database about the targeted property. It will be necessary to have an accurate database unique for the state BiH. Second, there is no methodology for the evaluation of the prices for immovable property fixed by the legislator.

249 See more on this issue Povlakić, M., Reforma zemljišnoknjižnog prava kao dio ukupne reforme građanskog prava, p. 231. 250 Law on Land Registries of the Republika Srpska [Zakon o zemljišnim knjigama], Official Gazette of the Republika Srpska 74/02, 67/03, 122/08, Law on Land Registries of the Federation BiH [Zakon o zemljišnim knjigama], Official Gazette of the Federation BiH 58/02, 19/03, Law on Land Register and on Rights over Real Estate of the Brčko District BiH [Zakon o registru zemljišta i prava na zemljištu], Official Gazette of the Brčko District BiH 11/01, 1/03, 14/03, 21/05, 19/07, 2/08. 251 The paradigmatic example is the case Metkos ltd Stolac. This enterprise from Stolac was founded and owned by a Bosnian entrepreneur who was deprived during the conflict between Croats and Bosniaks through the authorities of the Croat Community Herceg Bosna. In the pre-war period this enterprise had acquired a parcel of land by an exchange contract concluded with the municipality, built the factory building on this parcel of land, but never registered its right on the new parcel in the land register. After the war the enterprise sued before the Municipal Court Mostar for restitution. By the decision of this court this claim was dismissed (PS-2/02-S of 13 February 2006). An appeal against the decision of the Municipal Court Mostar was filed before the Cantonal Court in Mostar and was again dismissed (007-0-Pž-06-000043 of 5 May 2006). The revision before the Supreme Court of the Federation BiH had the same outcome (070-0-Rev-06-001097 of 6 March 2008). The main reason for such judgements was the impossibility of the claimant to prove his ownership. The enterprise to which the sequestration of this real estate was entrusted, keeps the real estate up to today.

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2. Entailments of the rules of international law 2.1. Rules and principles of international law 2.1.1. International agreements

As regards the relationship between national and international law, the ECHR and its Protocol have supremacy over national law and are directly applicable in BiH.252 In Appendix I to Annex 6 some international treaties relating to human rights are listed, which are also directly applicable in BiH.253 These are general international treaties, which do not regulate the particular problematic of property restitution to the refugees and displaced persons and which are not tailored to particular needs of BiH.

Annex G to the Agreement on Succession254 deals with property issues. The task of this Agreement was to protect the property owned on 31 December 1990 by natural and legal persons from former Yugoslavia on the territory of each successor country.

It is a very important document which offers a unified framework for the national regulation in each of the signatory parties. It obliged the states arising from the former Yugoslavia to set the same standards in handling restitution issues. Forced migration, displacement, acquirement or loss of nationality do not have any influence on the protection of the property right and the right to restitution.

The Annex set several principles:

1. The property owned on 31 December 1990 will be recognised, protected and restored; 2. The protection of the property right must be in accordance with the principles of

international law; 3. The protection of the property does not depend on nationality, religion or domicile of

the owner; 4. The acquirement of nationality of a third state, the establishment of domicile or

sojourn in a third state different from the signatory parties, do not have any influence on the recognition or protection of the property rights;

5. All legal transfers effectued after 31 December 1990 under pressure are null and void.

However, the principle mentioned under Point 5 may cause problems. The right to annul the legal transfer declared ex lege null and void upon the contract law in all countries of former Yugoslavia is not time-barred and the claim can be filed also by a third party. This can cause legal uncertainty. A third party acquiring a property right cannot be sure, whether its predecessor acquired this right by legal transaction concluded in the critical period and if this transfer was performed under pressure, which at some later point would be a ground for a claim. A much better solution would be a provision stipulating that all legal transactions are valid, unless the claim on annulation is filed until a certain date, furthermore providing for the claim to be registered in the land registry and/or other respective registry. It is very important to protect third bona fide parties acquiring certain rights without knowledge about the invalidity of the legal transaction.

252 Annex 4 of the DPA, Art. II(2). 253 The Appendix lists the following 16 Human Rights Agreements: 1948 Convention on the Prevention and Punishment of the Crime of Genocide, 1949 Geneva Conventions I-IV on the Protection of the Victims of War and the 1977 Geneva Protocols I-II thereto, 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, and the Protocols thereto, 1951 Convention relating to the Status of Refugees and the 1966 Protocol thereto, 1957 Convention on the Nationality of Married Women, 1961 Convention on the Reduction of Statelessness, 1965 International Convention on the Elimination of All Forms of Racial Discrimination, 1966 International Covenant on Civil and Political Rights and the 1966 and 1989 Optional Protocols thereto, 1966 Covenant on Economic, Social and Cultural Rights, 1979 Convention on the Elimination of All Forms of Discrimination against Women, 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1987 European Convention on the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, 1989 Convention on the Rights of the Child, 1990 Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 1992 European Charter for Regional or Minority Languages, 1994 Framework Convention for the Protection of National Minorities. 254 Official Gazette of Bosnia and Herzegovina 43/01.

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2.1.2. The role of the judgements of the European Court of Human Rights

The role of the judgements of the ECtHR can be observed in two directions, namely as the implementation of the decisions of this Court issued in cases in which the State BiH was the respondent party or as the influence of its judgements on the practice of the Constitutional Court BiH.

Citizens of BiH have filed many applications before the ECtHR. Eight decisions related to the violation of the right on peaceful enjoyment of possession and the right to respect the home have been rendered.255 Only one of these decisions is closely related to the topic of restitution of real estate. It is the case Janković vs. BiH. There is no official data on whether the judgements of the ECtHR, issued in these cases and confirming a violation, were implemented or not.

Moreover, the judgements of the ECtHR have a significant impact on the practice of the Constitutional Court of BiH and on the former Human Rights Chamber. By the judgement of the question whether a certain human right was subject to a limitation and whether this limitation is proportional and justified by public interest, both the Constitutional Court and the former Human Rights Chamber applied the standards set by the ECtHR. Also, in the explanatory statements of the judgements of the Constitutional Court and former Human Rights Chamber, by quoting the relevant rules and practice, the case-law of the ECtHR is broadly and permanently cited. It is not necessary to give some examples – each decision of the Constitutional Court BiH refers to case-law of the ECtHR. The implementation of the Constitutional Court’s decisions often simultaneously means the implementation of the judgements of the ECtHR.

2.2. The role played by international organisations The international community played in many areas a crucial role in BiH. One of them is surely the process of return of the refugees and displaced persons as well as the process of creating and implementing property laws in order to perform restitution and to protect their property rights.

The signing of the DPA and the Annexes thereto (here particularly relevant Annex 6 concerning human rights and Annex 7 concerning refugees, displaced persons and restitution) would not have been possible without the support or even pressure of the international community.

The responsibility and authority for the implementation of civilian issues of the DPA was entrusted to the High Representative in BiH. The national authorities, particularly in the first years after the conflict had ended, were very reluctant to permit the return and to launch the restitution process. This was evident in the non-enactment of appropriate legislation and in the repeated refusal to implement the relevant legislation. In both directions the role of the OHR and other international organisations (foremost the UNHCR) was crucial.

The leading role in the implementation of Annex 7 belongs to the UNHCR. The UNHCR was directly involved in the development of the strategy for safe return, repatriation and refugees. Particularly at the beginning of the implementation of Annex 7 the UNHCR concentrated its efforts on targeted housing reconstruction and on confidence-building measures. Important tasks of the UNHCR were minority returns, returns in the Zone of Separation, effective realisation of the right to return and the right to property. In 2001 the State Commission for Refugees was established and co-chaired by the UNHCR. This Commission coordinates activities of the State, the Entities and the international community. The UNHCR was involved in the inter-agency Property Law Implementation

255 ECtHR, Appl. No. 5172/03, Janković v. BiH, judgement of 16 May 2006, ECtHR, Appl. No. 41183/02, Jeličić v. BiH, judgement of 31 October 2006, ECtHR, Appl. No. 28971/05, Kudić v. BiH, judgement of 9 December 2008, ECtHR, Appl. No. 13628/03, Mirazović v. BiH, judgement of 16 May 2006, ECtHR, Appl. No. 337/04, 36022/04 and 45219/04, Pejaković et others v. BiH, judgement of 18 December 2007, ECtHR, Appl. No. 38945/05, Pralica v. BiH, judgement of 27 January 2009, ECtHR, Appl. No. 27912/02, Suljagić v. BiH, judgement of 20 June 2006, ECtHR, Appl. No. 2333/04,Višnjevac v. BiH, judgement of 24 October 2006.

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Plan (PLIP) and the Return and Reconstruction Task Force (RRTF); the latter was co-chaired by the OHR and the UNHCR. The PLIP agencies launched a New Strategic Direction on 12 September 2002. This initiative demands stricter adherence to the property laws, greater transparency in processing claims, respect for the legal requirement of chronological processing of claims and a tougher line on evictions.256

Related to the property issues of displaced persons and refugees the international community now follows an exit strategy in BiH, which is highly dangerous. The responsibility for these issues was transferred to the national authorities of BiH. In 2004 in his 25th Report the High Representative stated that the principal targets for the transition to domestic leadership on Annex 7 have been achieved and the transfer of its Annex 7 responsibilities to BiH authorities was prepared, which demanded an institutional reorganisation. In September 2003 the Ministry for Human Rights and Refugees was indicated as the main policy-making and supervisory body for Annex 7 issues. The BiH Commission for Refugees and Displaced Persons was established as the main coordinating body between the State, Entities and the Brčko District BiH. The Return Fund, a State-level institution responsible for the financial realisation of return and reconstruction projects, was also established. The responsibilities of the CRPC have been transferred to domestic authorities. However, after 2003 statistics show a declined number of returns. The exit strategy is also applied to the financing of these issues.

It is very questionable whether the national institutions are able to play the same successful role in the process of returns and restitution. 257 The Union of Associations of refugees, displaced persons and returnees calls for a more intensive involvement of the international community, estimating that the local authorities are not capable of fulfilling this commitment. This assessment is based on the practice of the several past years. For this reason the Union criticises the newly adopted Strategy for implementation of Annex 7 of the DPA, which places the emphasis on the responsibility of the local authorities.258

Albeit the questions of competences, organisational preconditions or political will of the national authorities being in charge of this issue, it is evident that the state BiH is not able to finance the return and restitution i.e. the compensation. The analysis under Section 4.1. will show that there are no internal resources for the accomplishment of this task. The national authorities will continue to depend on international financial support in terms of donations, grants or debts towards international financial institutions, the latter resulting in consequences for the national economy.

3. Analysis of the legal and administrative system 3.1. Legal framework 3.1.1. Overview

The legal framework for property can be distinguished into the war-legislation from 1992 onwards (legislation on “abandoned” property) and the post-war-legislation from 1998 (legislation on restitution/compensation).

For a better understanding of the legal framework on restitution in BiH some introductory remarks about a state organisation will be given. The state organisation was established by Annex 4 to the Dayton Peace Agreement. BiH is a complexly organised state divided into two entities and one District: the Federation BiH and Republika Sprska and the Brčko District BiH. The legislative competences are divided between the State and its parts. The Constitution provides for the presumption of the competence in favour of the entities; the competences of the State BiH are explicitly stated. The Constitution of BiH places the

256 The data on activities of the UNHCR is taken from the reports of the High Representative to the Secretary General of the UN. 257 The mandate of the CRPC of the State BiH ended one year ago; the new CRPC should have been established, but the national authorities have not yet fulfilled this task. The more than 100 unsolved cases remain unsolved. Report within Dnevnik u 7, Television Hayat, 26 January 2010. 258 See Report of the Union. 15 Years of Union of Associations of refugees, displaced persons and returnees of BiH, www.sirlbih.org/Publikacije/SIRLBIH-Publication%201993-%202008.pdf.

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responsibility for the regulation of property law on the entities and the Brčko District BiH. Furthermore, the Federation BiH is divided in ten cantons which also have some legislative competences in the field of property law (e.g. the cantons are responsible for regulating some issues related to the ownership of freehold apartments or flats).

3.1.1.1. Legislation on “abandoned” property

Regardless of the question on which territory and to what extent these practices occurred (it is not the subject of this research), the matrix was the same. The legislation enacted during the conflict by all three conflict parties259 made it possible to define certain property as abandoned, to put it under (temporary) sequester of the public authorities of this region and to allocate it to other users. The declared task of this procedure was the protection of temporarily abandoned property and its temporary allocation to persons who were also refugees or displaced persons. Both tasks were justified in war conditions, but the legislation was often misused for other purposes.260

In the Federation BiH two separate legal acts dealt with private property and apartments: the Law on Temporary Abandoned Real Property Owned by Citizens261 and the Law on Abandoned Apartments262 (about the difference between private and socially-owned property and about the legal regime on socially-owned apartments see Section 1.3.1).

In the Herceg-Bosna the Decree on the Use of Abandoned Apartments was enacted.263 The procedure with abandoned private property was regulated by the municipal regulation.

In the Republika Srpska the Law on the Use of Abandoned Property264 was enacted regulating both, abandoned private property and apartments abandoned by the pre-war occupancy right holder. This law was however not enacted before 1996, after the conflict had ended (whereas the Federation BiH adopted parallel legal documents at the beginning of the conflict and in the process of displacement in 1992 and 1993). Prior to that, in the Republika Srpska the declaration that an asset is abandoned and its allocation had been performed by decisions of the municipal authorities.265 It is interesting that in the moment of passing this law in the Republika Sprska, Annex VII to DPA was already signed. The possibility to regulate the topic of abandoned real estate as well as its allocation in such way as this law had provided for was in collision with Annex VII to DPA.

The Brčko District BiH as today’s third part of BiH was established only after the conflict ended;266 so there is no war-legislation on the use of abandoned property in the District.

The legislation regulating the deprivation of property and its allocation to new users was in general discriminatory in the entire BiH and represented a violation of basic human rights. The possibility of the violation, of arbitrariness and misuses was increased in a situation when these issues were not regulated by law, but by decisions of local authorities.

259 One of those conflict parties were the Bosnian Serbs on the territory which later became the Republika Srpska, the second one were the Bosnian Croats on the territory of the so called Herceg-Bosna. The third part of the territory was dominated by forces with the majority of Bosniaks. This territory after 1994, when the Agreement between Bosnian Government and Bosnian Croats from Herceg-Bosna was signed, formed together with the territory of Herceg Bosna today’s Federation of BiH. 260 In this sense also Prettitore, P., op.cit., p. 6 and Krneta, S., Pravo vlasništva – normativni i praktični aspekti njegove realizacije i Annex VII Dejtonskog sporazuma, p. 51. 261 Official Gazette of the Republic Bosnia i Herzegovina 11/93, 13/94. 262 Official Gazette of the Republic Bosnia i Herzegovina 6/92, 8/92, 16/92, 13/94, 36/94, 9/95. 263 Official Gazette of the Croatian Community Herceg-Bosna 13/93. 264 Official Gazette of the Republika Srpska 3/96, 8/96, 21/96, 12/99. 265 Also Prettitore, P., op.cit., p. 6. 266 Arbitral Tribunal for Dispute over Inter-Entity Boundary in Brčko Area, Final Award of 5 March 1999 and Decision of the High Representative of 8 March 2000.

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In a formal sense, the Law of the Federation BiH was correct in providing for the procedure of the sequestration and allocation of abandoned property, the right of returnees to repossess their properties, the obligation of the municipality to order within 3 days the termination of the sequester, the obligation of the temporary user to hand over the real estate within the next 8 days as well as his/her obligation to leave the pre-war owner undamaged. The solution envisaging that the repossession is preconditioned by the return to the territory of the municipality where the real estate was situated was highly problematic. This solution did not mean voluntary return and was very broadly misused by the municipal authorities.267

The regulation of the Republika Srpska was not even formally correct. The provisions of Arts. 30 and 40 of the Law on the Use of Abandoned Property expressively inhibited the return. The repossession was only possible when the temporary user voluntarily handed over the property or when the loss of his/her property, which occurred in another part of BiH, was compensated. The return was also preconditioned by the reciprocity of the return in the Federation BiH and in the Republic of Croatia.

3.1.1.2. Legislation on restitution/compensation

A turning point in the relations regarding the issues of the return of the refugees and displaced persons as well as the restitution of their properties represented the DPA and Annex 7 to DPA. Even before these documents were accepted, some UN Documents relating to BiH insisted on the right of refugees and displaced persons to be restored their properties.268 These rights were also recognised in the Washington Agreement of 1994 concluded between the Bosnian Croats and the Bosnian Government, which indicated the termination of the conflict between these two conflict parties.

Annex 7 to the DPA provided on the national level the right of refugees and displaced persons to return to their pre-war housings. This right included also the right to repossess their properties or to be compensated when the restitution was not possible. The signatory parties of Annex 7269 were obliged to ensure the realisation of the right to return and to restitution of the refugees and displaced persons.

The above-mentioned legislation on abandoned property enacted during the conflict was contrary to the rights recognised by the DPA and Annex 7 to the DPA. In the implementation process of Annex 7 in both entities (Federation BiH, Republika Srpska) laws were adopted which represented both: the cessation of the application of the legal documents on abandoned property and the recognition of the right to restitution of the property declared abandoned as well as a regulation of the appropriate procedure. But the legislation on restitution/compensation mainly was not enacted in both entities until 1998. Rather, the legislation enacted during the conflict colliding blatantly with the provisions of Annex 7 remained in force for further three years after its signing.270 That meant that the competent authorities were further implementing war-legislation and could declare some property abandoned and reallocated even during 1996 and 1997, which represented a flagrant violation of Annex 7.271

The main laws adopted were as follows:

In the Federation BiH the legislation on “abandoned” property was repealed by the Law on Cessation of the Application of the Law on Abandoned Apartments272 and the

267 Krneta, S., op.cit., p. 51. 268 UN SC Resolution 752 (1992) of 15 May 1992 and 820 (1993) of 17 April 1993 stipulating the support of the effort in the return of refugees and displaced persons and in the cessation of forcible displacement and deprivation. More see Prettitore, P., op.cit., p. 7. 269 The signatory parties were the Republic Bosnia and Herzegovina, the Federation BiH and Republika Srpska. 270 The national authorities were very reluctant and refused to enact appropriate legislation. Report of Ombudsman of the Federation BiH, in: Prvi ombudsmani u BiH, p. 29. 271 In this sense Krneta S., op.cit., p. 52. 272 Zakon o prestanku primjene Zakona o napuštenim stanovima, Official Gazette of the Federation BiH 11/98, 38/98, 12/99, 18/99, 27/99, 43/99, 37/01, 56/01, 15/02, 24/03, 29/03.

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Law on Cessation of the Application of the Law on Temporary Abandoned Real Property Owned by Citizens273.

In the Republika Srpska the legislation on “abandoned” property was repealed by the Law on the Cessation of Application of the Law on Use of Abandoned Property274.

Although the bodies of the Brčko Distrikt BiH had not enacted legislation on abandoned property, there was abandoned and allocated property on the territory of the District, so that it was necessary to enact legislation on the restitution of this property to the pre-war owners and users through the Law on Retransfer of Abandoned Property in the Brčko District BiH.275 Unlike in both entities this did not happen before 2001.

Besides these main laws that have been adopted to effect restitution, there is further legislation in all three parts of BiH related to restitution and compensation (for an in-depth analysis of the legal framework see Section 3.1).

3.1.2. Restitution/compensation law currently in force

3.1.2.1. Constitutional provisions

Annex 4 to the Dayton Peace Agreement represents the Constitution of BiH. The Constitution of BiH does not directly regulate the topics of property restitution and compensation, but it provides the framework and basis for the solution of these problems. This concerns primarily norms relating to the recognition and protection of human rights and fundamental freedoms and the entrusting of authorities and bodies with the task to protect human rights (Constitutional Court of BiH).

The Constitution of BiH stipulates that the state BiH as well as both entities will provide for the highest standard of the protection of the internationally recognised human rights. The ECHR and its Protocols shall apply directly in BiH. These international documents have priority over the national law.276 The Constitution contains a non-exhaustive list of protected human rights and freedoms. For this study the property right277 and the right to respect of the home278 are relevant. The protection of displaced persons relating to their request for restitution/compensation was granted on the basis of the violation of these human rights.

The Constitutional Court has the competency to review the compatibility of laws with the ECHR and appellate jurisdiction over human rights issues.279 The primary function of this Court is to uphold the Constitution of BiH, the other one consists in appellate jurisdiction over issues under the Constitution arising out of a judgement of any other court in BiH, which is claimed to have violated human rights.

Besides Annex 4 to the DPA, which represents the Constitution of BiH, and Annex 7, dealing with the right to return, also Annex 6 to the DPA is relevant for property issues following the regional conflict. Annex 6 is an Agreement on Human Rights, providing for the protection of human rights by determining the competent bodies for this task. The Human Rights Commission for BiH, consisting of the Ombudsman and the Human Rights Chamber, was laid down in Annex 6. The Chamber could determine a violation of human rights, order the respondent party to remedy this violation (e.g. to repeal the impugned act) or order compensation for pecuniary and moral damages. This appellate jurisdiction

273 Zakon o prestanku primjene Zakona o privremeno napuštenim nekretninama u svojini građana, Official Gazette of the Federation BiH 11/98, 29/98, 27/99, 43/99, 37/01, 56/01, 24/03. 274 Zakon o prestanku primjene Zakona o napuštenoj imovini, Official Gazette of the Republika Srpska 38/98, 12/99, 31/99, 65/01, 64/02, 39/03, 96/03, 49/09. 275 Zakon o vraćanju napuštene imovine u Brčko Distriktu BiH, Official Gazette of the Brčko District BiH 5/01, 1/02, 10/02, 17/04, 38/04, 41/06. 276 Annex 4 to DPA, Art. II.1.2. 277 Ibid, Art. II.3.k. 278 Ibid, Art. II.3.f. 279 Ibid, Art.VI(3)(b) and (c).

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overlapped with the one of the Constitutional Court (more about this under Section 3.2.3).

By a law imposed by the High Representative at the end of 2000280, the Ombudsman was transformed into the Ombudsperson of the state BiH. In accordance with Annex 6 and the Subsequent Agreement pursuant to Art. XIV of Annex 6 concluded on 19 November 2000 the mandate of the Chamber ended on 31 December 2003. The pending cases were transferred to the Constitutional Court.281

The applications received after 1 January 2004 have to be decided by the Constitutional Court BiH. In the field of the protection of property rights of refugees and displaced persons the Chamber played a crucial role by deciding on some major legal, but at the same time highly discussed political issues concerning, for example, the housing legislation and occupancy rights on apartments of the former Yugoslav National Army (JNA) and their privatisation.282 There are some leading cases, which had a direct impact on a large number of similar cases.283


In order to give an in-depth analysis of this legislation it is not sufficient to analyse the laws currently in force, because the legislation, originally enacted in the entities in 1998, was until now repeatedly amended.284 These amendments, mostly imposed by the High Representative, were always a reaction to insufficient regulation in the earlier versions of the law, a lack of regulation of some important issues or a bad practice resulting from it. Originally, both entities had adopted legislation which did not crucially differ. By imposing the amendments the High Representative further harmonised these solutions.

For these reasons, the following method will be applied in the analysis: firstly, the primary legislation on the restitution of abandoned apartments (Section 3.1.2.2.1.) of both entities will be presented, followed by each amendment in chronological order. In the same way the legislation on restitution of abandoned private property will be shown (Section 3.1.2.2.2.)

3.1.2.2.1. Restitution of abandoned apartments

3.1.2.2.1.1. Primary legislation On the territory of the Federation BiH the enactment of the Law on Cessation of Application of the Law on Abandoned Apartments represented the cessation of the application of the wartime legislation on abandoned socially-owned apartments enacted in the Republic BiH and the Croat Community Herceg Bosna. In the Republika Srpska the same situation was created with the enactment of the Law on Cessation of Application of the Law on Use of Abandoned Property. As a result, the public authorities in both entities had no possibility anymore to declare an apartment as abandoned. In principle, the right of the refugees and displaced persons, who had left their apartments because of the conflict, to restitution of their pre-war apartment was established.285

In the first version of the laws of both entities from 1998, the possibility to repossess a certain apartment was linked to the fulfilment of several preconditions. The claimant was 280 Law on the Human Rights Ombudsperson in BiH, Official Gazette BiH 32/00. 281 More precisely, the pending cases were transferred to the Commission on Human Rights established on an interim basis within the Constitutional Court BiH in order to decide all pending cases until 31 December 2004; however, this work was concluded only on 31 December 2006. 282 Miholić et al. vs. Bosna and Herzegovina and Federation BiH CH/97/60, Medan et al. vs. Federation BiH CH/96/3, 8 and 9, Crnogorčević vs. Federation BiH CH/99/2028, Kurtišaj and M.K. CH/98/311 and CH/01/8542. 283 Nowak, M., Introduction, in: Human Rights Chamber for Bosnia and Herzegovina, p. xiv, www.hrc.ba. 284 The Law on Cessation of Application of the Law on the Use of Abandoned Property of the RS was amended eight times, the Law on Cessation of Application of the Law on Abandoned Apartments of the Federation BiH was amended ten times and the Law on Cessation of Application of the Law on Temporary Abandoned Real Property Owned by Citizens of the Federation BiH five times. 285 Law on Cessation of Application of the Law on Abandoned Apartments, Art. 3, para. 2 and 3, Art. 3 of the Law on Cessation of Application of the Law on Use of Abandoned Property of the Republika Srpska.

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obliged to submit the claim within a short time period.286 After a positive decision was issued, the claimant was obliged to seek enforcement within a set time period after the delivery of the decision. Finally, the claimant had to physically reoccupy the apartment within one year after the issuance of the final decision granting his/her claim and to continue to use the apartment.287 By linking the right to restitution to the actual use of the apartment, these conditions can be assessed as discriminatory and as contradictory to the right to voluntary return.

With Amendments imposed in 2001 the High Representative removed almost all of these additional preconditions.

The period of time for claiming the apartment was originally six months from the coming into force of the above-mentioned laws, but after several months of their application, this deadline was prolonged to 12 and in 1999 to 15 months. The sanction for missing this deadline was the termination of the occupancy right. This solution was very problematic – immediately after the conflict had ended, many displaced persons were fearful of returning, many of them were also abroad, far away from BiH and did not even know about this deadline. Furthermore, along with the issuance of the amendments providing for a prolongation of the deadline, no transitional rules were enacted. This was very crucial for the question, what should happen with those occupancy right holders who had not filed their claims within the previously set deadline and who for that reason had lost their rights. Should the subsequent prolongation of the deadline be applied retroactively in these cases, should those persons be treated as if their right did not cease to exist and what should be done with the eventual rights of other persons who had acquired the occupancy right themselves after the cessation of the previous occupancy right?

The occupancy right holder was obliged to repossess his/her apartment in the set period of time after receiving the positive decision. In many cases this was not possible being in collision with the rights of current users provided by the same law. An exception to this obligation was provided for the situation in which a failure of repossession was justified.288 It would have been logical that the deadline for performing the obligation for repossession was linked to the moment in which the apartment became available.

Some legal provisions were contradicting each other and this fact did not facilitate the return and restitution, but offered the possibility of arbitrariness through the local authorities. The implementation of the right to restitution of the pre-war apartments depended on the legal situation of the person who was in the possession of the apartment. The solutions of the entities' laws differ at this point:

The legislation of the Federation BiH made a difference between an illegal user (who uses the apartment without a legal basis, without a decision of the competent body), a temporary user and the new occupancy right holder. The illegal user was obliged to leave the apartment immediately or otherwise had to be forcibly moved. In some situations the current user had the status of a temporary user (the responsible authority had allocated the abandoned apartment to this person); the temporary user was also obliged to leave the apartment, not immediately, but within 90 days after the issuance of the decision restoring the occupancy right of the claimant and only if he/she had another adequate housing.289 In cases in which the temporary user did not have an alternative accommodation, the local authority of the temporary user's last

286 Art. 5 of the Law on Cessation of Application of the Law on Abandoned Apartments of the Federation BiH, Art. 16 of the Law on Cessation of Application of the Law on Use of Abandoned Property of the Republika Srpska. 287 Art. 12 of the Law on Cessation of Application of the Law on Abandoned Apartments of the Federation BiH, Art. 21 of the Law on Cessation of Application of the Law on Use of Abandoned Property of the Republika Srpska. 288 Art. 12, para. 1 of the Law on Cessation of Application of the Law on Abandoned Apartments of the Federation BiH, Art. 21, para. 1 of the Law on Cessation of Application of the Law on Use of Abandoned Property of the Republika Srpska. 289 Art. 3, para. 4 of the Law on Cessation of Application of the Law on Abandoned Apartments of the Federation BiH.

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residence was in charge for providing an alternative accommodation. It is obvious that in many cases this was not possible. This was particularly problematic, if the last pre-war residence had been in the Republika Srpska. It was not possible to create an obligation for the other entity by the law of the Federation BiH. In those situations the repossession was not possible for a long period of time.

The Law of Republika Srpska contained different provisions on this issue. Originally, there was no differentiation between illegal and temporary users; respectively, the law envisaged only the position of a person who used the apartment on a legal basis. The temporary user could not be forcibly moved, if he/she claimed for repossession of his/her apartment until the free disposition over his/her property was made possible or until he/she received an adequate alternative accommodation within one year.

Generally in the practice of both entities, the deadlines for leaving the apartments by the temporary user set by the law were not respected. In a vast range of cases before the Human Rights Chamber the applicant claimed against the violation of the right on a legal remedy within a reasonable time.

The worst option for the pre-war occupancy right holder was the situation in which a new occupancy right was established on his/her pre-war apartment after being declared as abandoned (see Section 1.3.1.). The repossession depended on the possibility of the local authority to find another apartment for the new occupancy right holder to constitute the new occupancy right.290 In a situation in which a huge number of apartments was destroyed or allocated to refugees and displaced persons during the conflict this was nearly an impossible mission. The Human Rights Chamber found in some decisions that the decision declaring an abandoned apartment over which someone enjoyed an occupancy right as abandoned and the allocation thereof to another person represented a de facto expropriation.291

Art. 7, para. 2 in the Federation BiH and Art. 18, para. 4 in the Republika Srpska stipulated the possibility of the prolongation of the 90 days deadline to one year when justified reasons exist (the authority of the last domicile responsible for providing of the alternative accommodation has to document the absence of available housing to the competent Ministry). It is very interesting to compare this provision to the one of Art. 13 of the Law on Cessation of the Application of the Law on Abandoned Apartments of the Federation BiH, which regulates the situation when the pre-war occupancy right holder did not fulfil the requirements of this law and consequently lost the occupancy right. This apartment was considered free and could be allocated to a new user. In this case the temporary user had to leave within a shorter period of time (60 days) and without any right to alternative accommodation. This was an obviously discriminatory provision which put the person who acquired the occupancy right on the apartment declared abandoned in a better position than the original occupancy right holder. A similar provision did not exist in the legislation of the Republika Srpska.

In 1998 the legislation on privatisation, i.e. the sale of socially-owned apartments, was already enacted292, allowing the occupancy right holder to buy the apartment. The pre-war occupancy right holders who had been restored their occupancy right under the Law on Cessation of the Law on Abandoned Apartments could not acquire this right before six months had passed after the repossession and they were forbidden to transfer by legal act these apartments within five years after the entry in the land register. These provisions were also discriminatory. A similar provision did not exist in the Law on Cessation of Application of the Law on Use of Abandoned Property of the Republika Srpska.

290 Art. 3, para. 6 and 7 of the Law on Cessation of Application of the Law on Abandoned Apartments, Art. 17, para. 2 of the Law on Cessation of Application of the Law on Use of Abandoned Property of the Republika Srpska. 291 For instance, Eraković vs. Federation BiH CH/97/42. 292 See footnote 254.

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3.1.2.2.1.2. First Amendments of May 1999 In May 1999 the High Representative imposed his first amendments.293 The provision, criticised above, on the possibility to acquire the new occupancy right on abandoned apartments was put out of force.294 The High Representative declared each occupancy right acquired from 1 April 1992 until 7 February 1998 null and void. The person was not considered anymore as the occupancy right holder, but as the temporary user. This facilitated the legal situation of the pre-war occupancy right holder, but in some cases it represented the termination of the lawfully acquired occupancy rights and had retroactive effects. Surely, there were many persons who acquired their occupancy right after April 1992 bona fide and who finally lost this right. There were situations in which a certain occupancy right holder voluntarily left his/her apartment in exchange for another apartment on which he/she acquired the occupancy right. After cancellation of this new occupancy right he/she was entitled to file a claim for repossession of his/her former apartment. In many situations the person who acquired bona fide the occupancy right on such apartment had to leave it. Very problematic were the cases when this person missed the deadlines stipulated by law for the claim on repossession of his/her former apartment. This apartment could then be declared as free; this means that the eventual occupancy right acquired after April 1992 was cancelled and the pre-war occupancy right terminated as well, due to the missing of the deadline for filing the claim.

3.1.2.2.1.3. Amendments of July 1999 In July 1999 the High Representative imposed his second amendments in the Federation BiH.295 The right to reclaim the apartment was given not only to the refugees and displaced persons who had left their apartments because of the conflict (originally Art. 3, para. 2), but also to all refugees and displaced persons in terms of Annex 7, i.e. to all persons who had left their property. The delay for leaving the apartment by the temporary user was curtailed from 90 to 15 days from the date of the delivery of the decision. Further improvement of the legislation on abandoned apartments was undertaken by stipulating that the failure of the responsible bodies to meet their obligations must not delay the ability of an occupancy right holder to enter into possession of the apartment. The deadline for submission of claims for the repossession of apartments was changed for the fourth time. In principle, the deadline of 15 months was kept, but an additional deadline until 4 October 1999 for specific categories of apartments was provided for.

Special norms for military apartments existed in the Federation BiH. Regarding apartments declared abandoned on the territory of the Federation of BiH, at the disposal of the Federation Ministry of Defence, the occupancy right holder was not to be considered a refugee, if on 30 April 1991 he/she was in active service in the SSNO (Federal Secretariat for National Defence) - JNA (Yugoslav National Army), i.e. not retired, and was not a citizen of the Socialist Republic of Bosnia and Herzegovina according to the citizenship records, unless he/she had residence approved to him/her in the capacity of a refugee, or other equivalent protective status, in a country outside the Former SFRJ before 14 December 1995. Furthermore, such holder of an occupancy right was not to be considered a refugee, if s/he remained in active military service of any armed forces outside the territory of BiH after 14 December 1995, or if s/he had acquired another occupancy right outside the territory of BiH.296 Such persons could neither repossess their pre-war apartments nor buy them in the process of privatisation.

293 Official Gazette of the Federation BiH 18/99, Official Gazette of the Republika Srpska 12/99. 294 Arts. 1 and 2 of the Law on Amendments to the Law on Cessation of Application of the Law on Abandoned Apartments. 295 Official Gazette the Federation BiH 27/99. 296 Art. 3a of the Law on Cessation of Application of the Law on Abandoned Apartments.

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3.1.2.2.1.4 Amendments of October 1999 In October 1999 the High Representative again amended the Laws on Cassation of Application of the Law on Abandoned Apartments.297 These amendments affected nearly each legal provision, but some of the changes were only of technical nature. The main changes in both entities related to the situation when the apartment had been used by multiple occupants. A legal definition of a „multiple occupant” was provided. If one person used more than one apartment or houses, the competent administrative body, ex officio, or upon the request of a person who had a legal interest in the procedure, was obliged to render a decision ordering the multiple occupant to vacate the apartment immediately. This measure was enacted in order to improve the position of the pre-war occupancy right holder and to protect him/her better and more efficiently in the situation when a multiple user tried to misuse the protection given by the law to the temporary user.

One further positive change was the total revision of Art. 12 in the Federation BiH and Art. 21 in the Republika Srpska regarding the procedure for the termination of the occupancy right. Originally it was stipulated that the occupancy right would be cancelled ex lege in the case of unjustified failure of reoccupation of the available apartment within one year. The amendments provided for a court procedure for the termination of the occupancy right. The competent body could ex officio or upon the request of the allocation right holder initiate the procedure for termination of the occupancy right before the competent court in cases where a decision confirming his/her rights was issued and delivered to the occupancy right holder in accordance with the law and when some preconditions relating to the failure of the reoccupation of the vacant apartment were fulfilled.

The possibility of prolongation of the 90 days deadline to one year was modified. Besides the proof of documented absence of available housing, which had to be delivered by the competent body, the prolongation had to be agreed by the OHR.298

The High Representative assessed the obstructions performed by local authorities in the implementation of the property legislation.299 For the first time this amended version of the law stipulated the sanctions for the competent administrative body and the responsible person in this body for the obstructions in the implementation of this law.300 Sanctions for the multiple users were also stipulated.

The first version of these laws provided that a claim submitted to the CRPC led to the termination of all other administrative or judicial procedures, even the enrolled enforcement procedure. This provision was often misused. Therefore, it was supplemented so that the suspension of another procedure was only possible in cases where the responsible body had rejected the request of the claimant on formal or material grounds, and where suspension had been requested by the CRPC.301

297 Official Gazette of the Federation BiH 43/99, Official Gazette of the Republika Srpska 31/99. 298 Art. 7, para. 3 of the Law on Cessation of Application of the Law on Abandoned Apartment of the Federation BiH, Art. 18, para. 4 of the Law on Cessation of Application of the Law on Use of Abandoned Property of the Republika Srpska. 299 In 1999 progress on rendering decisions on property claims was stalling and local authorities were reluctant to carry out forced evictions, as required by law. In Republika Srpska, property claims were not being processed in a timely manner and those claimants whose property rights had been confirmed were usually unable to take possession of their property. 15th Report by the High Representative for Implementation of the Peace Agreement to the Secretary-General of the United Nations of 11 November 1999. 300 Art. 18h of the Law on Cessation of Application of the Law on Abandoned Apartment of the Federation BiH, Art. 37 of the Law on Cessation of Application of the Law on Use of Abandoned Property of the Republika Srpska. 301 Art. 14, para. 1 of the Law on Cessation of Application of the Law on Abandoned Apartment of the Federation BiH, Art. 23, para. 2 of the Law on Cessation of Application of the Law on Use of Abandoned Property of the Republika Srpska.

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3.1.2.2.1.5 Amendments of December 2001 In December 2001 the Law on Cessation of Application of the Law on Abandoned Apartments/Law on Cessation of Application of the Law on Use of Abandoned Property were deeply changed.302 Surely, some provisions represented an improvement of the legal situation of the pre-war occupancy right holder, but in this moment the legislation on abandoned apartments became totally confusing. Nearly each article was amended or completely replaced by new provisions, and the legal definitions were crucially changed. This was the sixth amendment adopted within a short time period. Neither the OHR nor the Parliaments of the entities made the effort to publish the revised version in order to facilitate the implementation of this law. Due to such numerous and crucial changes, transitional provisions were inevitable in order to clarify which issue was regulated by which law and to ensure legal security avoiding retroactive effects of the legal provisions. However, the amendments imposed by the High Representative in order to facilitate restitution and to protect human rights very often had a retroactive effect.

These amendments reduced the deadline in which the temporary user was obliged to vacate the apartment that he/she had been using. The right to alternative accommodation became more restrictive. The solutions in the Federation BiH criticised above, according to which the person who was entitled to alternative accommodation had to be provided with accommodation within the same canton on the territory he/she had had his/her last residence, were changed. This has been from the beginning the weak point of the legislation on abandoned apartments. The restoration of the occupancy right was linked to the fulfilment of nearly impossible conditions. In order to overcome this obstacle, it was stipulated that in case the administrative authority of the territory on which the temporary user had had his/her latest residence was unable to provide alternative accommodation, other competent bodies, including other municipal organs, state-owned companies or firms, cantonal and Federation BiH authorities, would be obliged to make facilities at their disposal, available for the purposes of providing alternative accommodation under this Law. This solution was of very utopian nature!

Some amendments represented the return to previous solutions. The last amendment of October 1999 did not provide for termination of the occupancy right ex lege, but in judicial procedure. In accordance with the new amendments the occupancy right can be again terminated ex lege, but the conditions for this have been changed.

In the Federation BiH it was stipulated that the claim for restitution could be submitted to several bodies (competent court or CRPC), not only to the competent administrative bodies as it had been before. If the occupancy right holder did not file a claim to one of those competent administrative authorities within the appropriate time limit, or did not request enforcement of a decision of the CRPC within the deadline determined by the Law on Implementation of the Decisions of the CRPC303, the occupancy right was cancelled. The different laws stipulated different deadlines and this amendment did not determine which deadline was authoritative. Is it possible to terminate one right several times? The possibility to submit the claim to different authorities seems advantageous to refugees or displaced persons only at the first glance, considering that different bodies could issue different decisions in the same case. Also, two different persons could file a claim before different bodies, deciding both positively.

The so-called military apartment represented a particular problem in the Federation BiH. The legislation on this issue changed several times; some changes were the consequence of the decisions of the Human Rights Chamber. It was questionable whether the pre-war holders of the occupancy right to the apartment owned by the Yugoslav National Army, who had abandoned their apartments during the conflict and served in military forces outside of BiH after 19 May 1992 should be considered as refugees in terms of Annex 7 and whether they should have the right to restitution of the apartment. This right was

302 Official Gazette of the Federation BiH 31/01, Official Gazette of the Republika Srpska 65/01. 303 This represented an additional reason for the termination of the occupancy right.

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finally denied, just like the right of persons who acquired occupancy or similar rights to apartments financed by military forces of the successor states of former Yugoslavia.304

3.1.2.2.2. Legislation on restitution of private property The provisions of the Law on Cessation of Application of the Law on Use of Abandoned Property of the Republika Srpska relating to private property are almost identical with those of the Law on Cessation of the Application of the Law on Temporary Abandoned Property Owned by Citizens of the Federation BiH. The later amendments imposed by the High Representative additionally harmonised this legislation.

With the coming into force of the Law on Cessation of Application of the Law on Abandoned Real Property Owned by Citizens/Law on Cessation of Application of the Law on the Use on Abandoned Property, the possibility to declare some property as abandoned and to re-allocate it thereby was terminated. The right to regain possession within the procedure set by these Laws was established and was not coupled to any additional conditions. The right to claim restitution at first belonged to any person who was the owner of real estate at the moment it was declared abandoned. Later, pursuant to the amendments imposed by the OHR, this right also belonged to the persons who were unconditional possessors at the moment when this apartment was declared as abandoned.

To a certain extent the position of the owner of the abandoned real property was more favourable than the position of the pre-war occupancy holder. It was a logical consequence of the fact that the occupancy right during socialism had not been equal with property, so that in many cases the occupancy right expired in accordance with wartime legislation. By contrast, the property right was not terminated during the conflict, but the real property was only submitted to sequester. There was no deadline for submitting the claim and for seeking enforcement. The effective repossession and return into the pre-war domicile was never a precondition for the restoration of possession.

From the owner's point of view the regulation was problematic, providing that the repossession can be dependent on the housing needs of the temporary user. In the Federation BiH this offered the possibility to evade the issuance of the decision on repossession as well as its enforcement. The weak point of this legislation was the obligation of the responsible municipal authorities to decide at the same time on the right of the owner and the temporary user and to determine whether the temporary user has the right to alternative accommodation. A further gap in the legislation, as mentioned under Section 3.1.2.2.1., was the fact that the municipality of the temporary user’s last residence was obliged to provide him/her with alternative accommodation. Although it was stipulated that the impossibility of the respective municipality to provide the alternative accommodation must not postpone the implementation of the owner's right to repossession, such was the case in practice. If the real estate was used by an illegal user or by a temporary user who was not entitled to alternative accommodation, the deadline for vacating the property was 15 days from the date of the delivery of the decision on enforcement. Otherwise the deadline was 90 days and could be prolonged up to one year. The same provision relating to abandoned apartments was criticised under Section 3.1.2.2.1. The prolongation was possible, if the municipality responsible for providing alternative accommodation to the temporary user documented the absence of available housing in the municipality to the competent ministry. With the second amendment to this Law this provision was corrected and additionally an approval by the OHR was required. The intention was to reduce the cases in which a prolongation was granted without justified reason.

In the Republika Srpska the temporary user was protected to a greater extent, but in a way that prevented the restitution. If the vacation of the given property was ordered to the temporary user, he/she was not obliged to leave the property, if it was not possible 304 The Law on Amendments to the Law on Cessation of Application of the Law on Abandoned Apartments (29/03) amended Art. 3a.

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to restore the property he/she had used on 30 April 1991, if he/she did not want to return there or until an alternative accommodation was found. If he/she had submitted the claim for the restitution of his/her property to the CRPC, he/she could not be forcibly moved until the repossession of his/her property or unless an alternative accommodation was provided for within one year.305

Over the years the legislation defining the right of the temporary user and the issue of the multiple user was changed several times essentially by impositions of the OHR and in the same way as in the case of abandoned apartments. These changes intended to improve the position of the owner.

The weak point of the Law of the Federation BiH was also the provision that both, owner and temporary user were considered as parties in the administrative procedure. In this way the temporary user was granted the right to appeal against the decisions of the responsible municipal body and was thus able to delay the proceedings.306 In the Republika Srpska the temporary user was not explicitly considered as a party within the administrative procedure, but the temporary user was given the right to appeal against the decision determining the right to regain possession.307 The problematic of the relation between this administrative procedure and the procedure for the implementation of the CRPC decisions was elaborated under Section 3.1.2.2.1.

With the amendments of October 1999 the scope of the law was extended to apply also to the abandoned real property, the ownership of which had been acquired after 30 April 1991 based on any legal transfer of real property rights (contracts on exchange, sale, gift, etc.). The situation was regulated in which disputes arose on whether the transfer was lawful. This legislation changed three times. Its goal was to provide for an interruption of the administrative procedure aiming to restore possession, while the court decision on the lawfulness of the legal transfer was pending. The frequent changes were a result of the fact that the OHR was not familiar with the provisions of the administrative and court procedure in BiH, so that the imposed regulation in its first version could not be implemented at all.

The amendment of 2001308 regulated the right of the temporary user, whose right of temporary use was terminated, but who spent his/her personal funds on necessary expenses for the real property, to be entitled to recover those funds under the Law on Obligations.309 This provision was unnecessary and, moreover, incorrect. The Law on Property Relations regulates the rights and obligations of the possessor who was obliged by a court decision to return the object to the owner. His/her position depends on the fact whether s/he was bona fide or not and on the type of the expenses (necessary, useful or luxury expenses). The Law on Obligations, which the provision refers to, does not regulate this topic at all, unless it concerns the compensation for damages or unjustified enrichment. The provisions of the Law on Property Relations are more adequate in the given situation.

3.2. Administrative procedures 3.2.1. General remarks

The claims to restore possession or to award compensation can be brought before judicial or administrative bodies. In the “classic” way the protection of the right to restitution – like any other subjective right, - can be granted in the ordinary court procedure. However, so-called “Property laws” (laws on cessation of application of the regulation on

305 Art. 6 of the Law on Cessation of Application of the Law on Use of Abandoned Property of the Republika Srpska. 306 Critically see Krneta, S., op.cit., p. 52. 307 Art. 27 of the Law on Cessation of Application of the Law on Use of Abandoned Property of the Republika Srpska. 308 In the Republika Srpska this legislation was already set in 1999 (Art. 27a of the Law on Cessation of Application of the Law on Use of Abandoned Property). 309 Art. 17d of the Law on Cessation of Application of the Law on Temporary Abandoned Property Owned by Citizens.

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abandoned property) generally envisaged the administrative procedure for the protection of these rights. The implementation of the right to restitution/compensation can be claimed in the general administrative procedure before the competent administrative body (competent municipal bodies). In the Republika Srpska this is the responsible body of the Ministry of Refugees and Displaced Persons in the municipality where the property is located. Depending on the targeted property, two different municipal bodies are responsible in the Federation BiH: for private property owned by citizens this is the administrative body responsible for property legal affairs in the municipality where the property is located and for apartments this is the administrative body responsible for housing affairs in the municipality where the apartment is located. This does not mean that the possibility to claim before court is omitted. Also, if the judicial procedure had been instituted prior to the property laws coming into force, it could be continued. This possibility to proceed before the administrative body and the court caused some problems in the enforcement procedure.310 In accordance with the Property Laws certain rights of the temporary user were recognised in the administrative procedure, e.g. the right to alternative accommodation. This right could not be protected by the court decision, since the latter only considers the request of the claimant for repossession.

On 4 October 1999 the deadline expired for claims for the restoration of the occupancy right. At present it is only possible to submit a claim for the repossession of private real estate. The claimant initiates the administrative procedure before the competent administrative body by submitting the written claim with all relevant documents on his/her right attached. The competent administrative body is obliged to decide on this claim within 30 days from its receipt and has to address the right of the pre-war owner/occupancy right holder and the right of the current user. The law stipulates the essential elements of this decision. It is necessary to decide not only on the repossession right of the former user or owner, but also on the right of the temporary user to alternative accommodation, further to determine the deadline for the vacation of the apartment/real estate, to advise the temporary user of the sanction in case of damage of the object or real estate or in case that he/she is a multiple user. 311 About the right of the current user see Section 3.1.2.2.1.

An appeal against the decision of the first instance can be filed before the competent second instance within 15 days by both, the claimant and the temporary user.312 The appeal does not have a suspensory effect. It is also possible to appeal against the decision of the second instance body before the competent court.

If a temporary user does not vacate the apartment/private property within the specified deadline, the claimant can request the enforcement of the decision. In some cases (e.g. the temporary user is a multiple user) the competent body can also ex officio enforce its decision. In the enforcement of the decision on the repossession of the apartment/private property, the competent body has to ensure participation of the local police.

3.2.2. Commission for Real Property Claims of Displaced Persons and Refugees - CRPC

For the specific purpose of the protection of the rights of refugees and displaced persons, i.e. of persons who left their properties during the conflict in accordance with Annex 7, the CRPC was established, as a special competent authority for property issues. The mandate of the CRPC was to establish in a binding manner the person who had been the pre-war (in April 1992) possessor or occupancy right holder. The CRPC was not part of the general administrative organisation of the entities; it issued its decisions in a

310 Prettitore, P., op.cit., p. 10, footnote 37. 311 Art. 7 of the Law on Cessation of the Application of the Law on Abandoned Apartments of Federation BiH, Art. 12 of the Law on Cessation of the Application of the Law on Temporary Abandoned Real Property Owned by Citizens of the Federation BiH, Art. 11 of the Law on the Cessation of Application of the Law on Use of Abandoned Property of the Republika Srpska. 312 Art. 8, para. 2 of the Law on Cessation of the Application of the Law on Abandoned Apartments of Federation BiH, Art. 13, para. 2 of the Law on Cessation of the Application of the Law on Temporary Abandoned Real Property Owned by Citizens of the Federation BiH, Art. 12, para. 2 of the Law on the Cessation of Application of the Law on Use of Abandoned Property of the Republika Srpska.

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procedure defined by the respective law, which was not the general administrative procedure. A written procedure without hearings was foreseen. Neither a two-instance procedure nor the possibility of review of its decisions by some other competent bodies was provided for. The decisions of this Commission were final and binding by issuance313 and could be reconsidered only by the Commission itself. Otherwise, only decisions of the Constitutional Court BiH have such an effect and the decisions of the Human Rights Chamber, which existed up to 2003. This procedure represented a very specific remedy in the Bosnian and Herzegovinian legal order.

In the first year of the activity of this Commission its decisions were not immediately enforceable. To supervise the implementation of the CRPC decisions, the High Representative imposed in both entities harmonised Laws on Implementation of the Decisions of the Commission for Real Property Claims of Displaced Persons and Refugees (hereinafter: Law on Implementation of CRPC Decisions).314

The implementation of the Commission’s decisions was entrusted to the competent municipal administrative body. Since the administrative organisation in the entities differs, different bodies (see Section 3.2.1.) are responsible for the enforcement of the CRPC decisions.

Unless otherwise stipulated by law, decisions were implemented in the general administrative procedure.315 The private owner was not limited in filing the request for implementation of the CRPC Decision, the occupancy right holder, however, was obliged to request enforcement within one year (later prolonged to 18 months) from the issuance of the CRPC decision or otherwise lost his/her right.316

The enforcement of the CRPC decisions by the same local bodies which were at the same time responsible for the enforcement of the restitution requests in accordance with the legislation on cessation of the implementation of the laws on abandoned property was a weak point of this legislation. The same obstructions through the competent municipal body were possible in the enforcement procedure, even if the claimant was in possession of the final decision by the CRPC. A particular gap represented the provision according to which the precondition for enforcement of the CRPC decisions was the decision of the competent municipal body on the right of the temporary user of the real estate. This left additional room in order to delay the proceedings. There are opinions that the procedure before the CRPC did not represent considerable benefit to the process of restitution.317

Besides the problems caused by the enforcement of the decisions of the CRPC by the municipal bodies, another problem arose out of the fact that the CRPC only confirmed the existence of the property right in April 1992, not taking into consideration possible later transactions. This provision caused enormous problems in practice and was amended several times. For example, it was possible that the owner who voluntarily transferred the property after April 1992 claimed before the CRPC and got the confirmation on his/her right existing in April 1992. In many cases the implementation of these decisions was requested and successfully enforced. The other person who legally acquired the property after April 1992 by exchange contract was dispossessed, but had the possibility to lodge an appeal against the conclusion on the permission of enforcement. The responsible administrative body had to direct the appellant to initiate proceedings before the competent court within 30 days, to prove that the holder of the right named in the Commission's decision voluntarily and lawfully transferred his/her rights to the appellant since the date referred to in the dispositive of the Commission's decision. In the first version of the Law on Implementation of CRPC Decisions this judicial procedure did not suspend the enforcement procedure. This huge gap was partially removed by later Amendments to this Law, which provides for the possibility to apply for suspension before 313 Art. 2 of the entities' Laws on Implementation of CRPC Decisions. 314 Official Gazette of the Federation BiH 43/99, 51/00, 56/01, 24/03 and Official Gazette of Republika Srpska 31/99, 39/00, 65/01, 29/03. 315 Art. 14 of the entities' Laws on Implementation of CRPC Decisions. 316 Art. 5 of the entities' Laws on Implementation of CRPC Decisions. 317 Prettitore, P., op.cit., p. 11.

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the court.318 However, this provision was still highly problematic, which is shown in the case Janković vs. BiH before the ECtHR.319 This case raises different questions, but it is at this point interesting that the appellant had not received any response from the competent municipal court related to his suspension request so that the CRPC decision was enforced. With the Amendment imposed in 2003 the ex officio suspension of the enforcement procedure was stipulated.

3.2.3. Human Rights Chamber and Constitutional Court

When the person deprived of his/her right to property had exhausted all legal remedies, protection for the violation of the human right can be sought before the Constitutional Court and until 31 December 2003 before the Human Rights Chamber.

The Human Rights Chamber was competent to consider alleged and apparent violations of human rights and fundamental freedoms as well as alleged and apparent discriminations arising in the enjoyment of the human rights and fundamental freedom provided for in the ECHR and 15 other international agreements listed in Appendix to Annex 6. The procedure before the Chamber was not set by the law, but by the Chamber itself. The Chamber’s procedure was modelled on the procedures of the ECtHR.

The procedure could be enrolled directly from any Party in Annex 6 or from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation under the condition that legal remedies have been exhausted and that the application has been filed with the Chamber within six months from the date of the final decision. The decisions of the Chamber were final and binding.320 The decisions on the merit were forwarded to the OHR and after 2002 to the OSCE for monitoring on implementation.

The Constitutional Court may consider an application under the condition that all available effective legal remedies provided according to the Bosnian-Herzegovinian law have been exhausted and that the application has been filed within 60 days from the date of the final decision on the last effective remedy. The decisions of the Court are final and binding.321 Within the period in which the Human Rights Chamber existed (1996 – 2003) the competences of the Constitutional Court overlapped with those of the Chamber for Human Rights. This overlapping did not create a problem in practice. The Constitutional Court dealt primarily with general issues and disputes under constitutional law, while the majority of individual human rights complaints were addressed to the Chamber.322 After termination of the work of the Chamber for Human Rights the Constitutional Court of BiH fully exercised its competence in deciding individual appellations.

The procedure before the Constitutional Court of BiH was regulated by the internal rules and modelled on the procedures of the ECtHR.

3.2.4. Specific implementation problems

Different public authorities were, respectively are, responsible for protecting the property rights of the refugees and displaced persons. The network of the competent authorities as well as the competences of these authorities was not constant in post-conflict time – some authorities changed their competences, others terminated their work and their competences were taken over by other authorities. The latter was regularly a part of the process of transition of competence from international to national authorities in the process of enacting the civil parts of the DPA. That way e.g. the Human Rights Chamber terminated its work on 31 December 2003 and its competences were transferred to the Constitutional Court of BiH. At the same time, the CRPC terminated its work and was succeeded by the homonymous interim CRPC as a body of the State BiH.

318 Art. 12a of the entities' Laws on Implementation of CRPC Decisions. 319 ECtHR, Appl. No. 5172/03 judgement of 16 February 2006. 320 Annex 6 to DPA, Art. XI. 321 Annex 4 to DPA, Art. VI.4. 322 Novak, M., op.cit., p. xvii.

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Some problems occurred in relation to this transfer and this fact did not contribute to a better protection of the property rights of the refugees and displaced persons. In the transition process from the Human Rights Chamber to the Commission for Human Rights within the Constitutional Court BiH and at least until the termination of the activity of this body one very important question arose: who is competent to order the implementation of the non-implemented decisions of the Human Rights Chamber and to survey and monitor it? Or how to proceed, when the appeal to the Constitutional Court has been submitted and the appellant claims that a positive decision was issued by the Human Rights Chamber, but was never implemented? The Constitution or at least a legal document should have previously solved this important question.

The State’s Commission for Property Claims of Refugees and Displaced Persons does not have the same competences as its predecessor. The mandate of this Commission was not prolonged for the year 2009, after the Council of Ministers evaluated that the Commission had not fulfilled its task.323 The responsibility to decide upon unsolved property claims, which had been submitted to the CRPC, was transferred to the responsible municipal authorities.324 Thus the situation relating to the applications for restitution was equalised with the situation before the establishment of the CRPC. The responsible bodies have to solve claims submitted in accordance with the legislation on cessation of implementation of the laws on abandoned property directly to this body as well as those submitted to the CRPC. However, it was not clarified whether in dealing with the latter the responsible bodies merely decided in the same way like the former CRPC, i.e. whether the claimant was the possessor or the occupancy right holder in April 1992.

One further implementation problem was caused by the complex legal framework. The legal framework in BiH is more than complex, which is primarily the consequence of the complex state organisation. The competences related to the right on return are divided between state, entities and District. In addition, the Federation BiH is divided into 10 cantons, which have some competences in this field. Thus there are 14 legislators in BiH. One further legislator has to be added and that is the High Representative for BiH. The overview on the evolution of the legal framework given under Section 3.1.2. has shown that national authorities were not really cooperative in terms of harmonizing their legislation with Annex 7 to the DPA and that the High Representative was forced to impose appropriate regulation. But this activity of the OHR was also Janus-headed. On the one hand it was desperately needed; on the other hand this legislation was not of high quality. As it has been shown, the legislation was changed within a very short time period; sometimes these changes were very radical. As a reaction against some bad practice the High Representative sometimes imposed legislation with retroactive effect. Furthermore, the Human Rights Chamber was of the opinion that the amendments on housing legislation imposed by the High Representative were discriminatory and violated the rights to property and the protection of the home.325 The implementation of such legal framework was objectively by no means simple.

There are no official statistics for the entire BiH on the number of submitted claims, but the number of refugees and displaced persons allows the conclusion that there was a vast amount of applications which overburdened the responsible bodies. The onsite authorities surely did not have the capacity for their solution, but often the will was missing, too. It was precisely the task of the CRPC to overcome this obstacle. Particularly

323 At www.solobodnaevropa.org (29 August 2009). 324 Law on Transfer and Solution of Unsolved Claims for Repossession of Socially-owned Apartments and Real Property owned by Private Persons submitted to the CRPC [Zakon o prijenosu i rješavanju neriješenih zahtjeva za povrat stanova u društvenom vlasništvu ili nekretnina u privatnom vlasništvu podnesenih Komisiji za imovinske zahtjeve raseljenih lica i izbjeglica], Official Gazette of Federation BiH 6/04, 22/04, 59/05 and Law on Transfer and Solution of Unsolved Claims for Repossession of Socially-owned Apartments and Real Property owned by Private Persons submitted to the CRPC [Zakon o prijenosu i rješavanju neriješenih zahtjeva za povrat stanova u društvenom vlasništvu ili nekretnina u privatnom vlasništvu podnesenih Komisiji za imovinske zahtjeve raseljenih lica i izbjeglica], Official Gazette of the Republika Srpska 3/04, 54/04. 325 Nowak, M., op.cit., p. xiii.

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http://www.solobodnaevropa.org/


the competent bodies obstructed the minority returns, i.e. the restitution to minority returnees in the first years after the end of the conflict.

An instructive example represented the Human Rights Chamber. This body was absolutely overburdened. Its statistics show the huge gap between registered and resolved cases. In the time period from March 1996 to December 2002 there were 12659 registered cases and 1878 solved cases,326 which represents an average of approximately 15%. The applicants mostly invoked Art. 8 ECHR (right to respect home) and Art. 1 Protocol 1 (peaceful enjoyment of possession).327 The “majority of cases decided by the Chamber relate to efforts of displaced persons to regain possession of their houses and apartments, which they had been evicted from during ethnic cleansing operations in the course of the armed conflict“.328 In the early years of the Chamber’s work the implementation of its decisions was rather slender, but this radically changed in the last years of its existence. The degree of compliance with the Chamber’s decisions permanently increased329: In early 1999 the rate of implementation was only 10%, while in 2002 it was 79% (75% in the Republika Srpska, 92% in the Federation BiH).330 The compliance with decisions ordering pecuniary compensation was particularly problematic (see Section 4.1.).

In accordance with (unpublished) information taken from the administration of this Court, an average of 3000 appellations is received/registered per year. In approximately 5% of the cases a violation of specific human rights is assessed. In 69 of the cases the violation of the right to peaceful enjoyment of possession and in 28 the violation of the right to respect the home was confirmed. There are no statistics or information on the rate of implementation of its decisions.

3.2.5. Situation of people – or legal claimants – who left BiH and are not nationals of BiH

Annex 7 to the DPA does not originally deal with this issue and does not offer a direct answer to this question. The starting point in the interpretation of the provisions of this Annex as well as of other relevant legislation should be the fact that each refugee and displaced person has the right to restitution. No restrictions whatsoever, thus not even related to nationality, are provided for.

During socialism, foreigners were very limited in acquiring real estate in SFRY and SR BiH. Also, the loss of SFRY nationality was directly sanctioned by the loss of the right to real estate. Such provision does not directly exist in the actual Bosnian and Herzegovinian legal order; it would be against the protection of elementary human rights in accordance with the ECHR and the Protocol thereto.

The question arises whether the implementation of Annex 7 can be performed on those persons who never had a domicile in BiH, but only real estate, as well as on those persons who changed their nationality during the conflict. The first category of cannot be considered as refugees or displaced persons in terms of Annex 7, but it was quite possible that their real estate were declared abandoned and re-allocated to another person or simply possessed by another person during the conflict. Firstly, the protection of the property rights of such persons should be guaranteed by the general provisions on human rights, but some specific remedies were also stipulated.

In 1999 the right to restitution was given to any person who left his/her private property from 30 April 1991 to 4 April 1998, even on a voluntary basis. All those persons would be considered as a refugee and displaced person in order to enjoy the same protection related to restitution, even if the loss of the possession was not caused by the conflict. Furthermore, the legislation envisaging restitution has been applied also to real property owned by citizens which was not declared abandoned, if the owner abandoned the real 326 See www.hrc.ba/ENGLISH/graphs/chartYear/pdf. 327 See Human Rights Chamber for BiH, Digest, Decisions on Admissibility and Merit 1996-2002, Index, pp. 353. 328 Nowak, M., op.cit., p. xiii. 329 Ibid, p. xvi. 330 22th Report by the High Representative for Implementation of the Peace Agreement to the Secretary-General of the United Nations of 4 May 2002.

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property before 4 April 1998.331 These provisions could be of benefit to owners who did not have Bosnian and Herzegovinian domicile or nationality.

In 2001 the legislation on abandoned apartments was supplemented by the provision that the competent authority shall not reject a claim submitted by the occupancy right holder for restitution on the basis of a foreign citizenship acquired by the claimant since 30 April 1991.332

Annex G to the Agreement on Succession signed in Vienna on 29 June 2001 by all states arising from former Yugoslavia directly answered this question. The acquirement of nationality of a third state, the establishment of domicile or sojourn in a third state different from the signing parties, do not have any influence on the recognition or protection of the property rights.

4. Financial consequences of restitutions/compensations 4.1. Official statistics and state budget Official statistics on the financial consequences of restitution or compensation are not available. Furthermore, in connection with this important issue an uncoordinated action of the public authorities is evident. For the purposes of this study, the annual budget of the state BiH for the years 2000 – 2009 was analysed. Priority is given to the national budget and not to the budgets of both entities and the District, because in 2003 the responsibility for the implementation of Annex 7 was transferred from the international community to national authorities, i.e. to the Ministry for Human Rights and Refugees, Commission for Property Claims and Fund for Return. Incomes and expenses of these institutions have been analysed. .

These data could be interpreted as follows:

The amount envisaged in the state budget, i.e. in the budget of the Ministry for Human Rights and Refugees, for support of the refugees and displaced persons is not specified so that it is not possible to find out which amount has been foreseen for the restitution and compensation and which for sustainable return in general. Only the total sum for the general support for refugees or displaced persons or the total sum for support of return can be ascertained.

The total annual budget of the Ministry for Human Rights and Refugees strongly oscillates and there is no constant to be ascertained. For example, the total annual budget of this Ministry was approximately 9 million KM in 2001 and approximately 8 million KM in 2002, but only approximately 5 million KM in 2006 and approximately 6 million in 2007. In 2008 this budget amounted to more than 41 million KM, in order to shrink to a third of that amount in the following year 2009.

Not until 2001 was the Ministry for Human Rights and Refugees established on state level. Yet in 2001 the support for the return of refugees and displaced persons was given through the Ministry of civil affairs in a modest amount without the specification for allocation of this amount for specific tasks.

The annual budget of the CRPC is also not instructive. This amount is in total for the functioning of this Commission, but not for the programme of return or restitution/compensation.

The Ministry for Human Rights and Refugees allocated the financial means for the support of refugees and displaced persons in some years directly and in some years through the Fund for Return.

The majority of the resources aimed for sustainable return originated from special grants and programmes almost completely supported by international organisations.

331 Art. 17a of the Law on Cassation of Application of the Law on Temporary Abandoned Property Owned by Citizen. 332 Art. 6, para. 2 of the Law on Cessation of Application of the Law on Abandoned Apartments of Federation BiH, Art. 17, para. 2 of the Law on the Cessation of Application of the Law on Use of Abandoned Property of the Republika Srpska.

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The voice in the annual budget oscillating and depending from the special resources granted almost completely by international bodies is a very significant data. It shows that BiH is not able to finance the return as well as the restitution without international support. It is very important to identify alternative sources of funding the ongoing return process. BiH became a member of the Council of Europe Development Bank (CEB) and is entitled to CEB loans for financing return and reconstruction projects. The international funds in BiH decline and this membership will be of the utmost importance in achieving a substantial completion of Annex 7.333

4.2. Financial estimations by international organisations and interest groups In accordance with the statistical summary published by the UNHCR Representation in BiH, the total number of returnees from 1996 until 30 June 2009 is 1.026.993. The Union of Associations of Refugees, Displaced Parsons and Returnees in BiH (hereinafter: Union)334 operated also with this number.335 Regarding the fact that 2.2 million people left their pre-war homes from 1992-1995, the rate of return is approximately 50%.

The OHR assessed that approximately 1 million people returned to their pre-war homes, most damaged buildings were reconstructed and the countrywide property repossession rate in 2003 rose above 90%.336

The NGO’s and Associations of targeted persons are very critical towards the degree of return, the procedures and attitudes of the competent public authorities. First of all the NGO’s and Union complain about the insufficient financial support, estimating that these resources are not enough to fulfil this task.337 In this sense also the Report of the OHR states: “The fact that at a time when refugees and displaced persons are returning in large numbers, international financial assistance is rapidly decreasing and BiH domestic funds remain insufficient to cover needs.“338

The Union also complains about misuses of the financial support.339

Implementation of property laws and the return are not identical figures. A comparison between the number of the effective, actual returns and repossession of the property would be interesting. The returned property can at the same time mean the return to the pre-war domicile, but potentially the repossessed property may be used as a second or temporary domicile (during the summer or holidays) or may be sold or transferred otherwise. However, official or at least trustful data on this issue does not exist.340 The percentage of those persons who returned is much smaller than of those who reclaimed their property. In accordance with the assessment of the Union only one third of the official figure reflects the actual return. The Union estimated also that in the majority of the cases a destroyed property was repossessed, so that in a wide number of cases the restitution of the property was not followed by sustainable return.341

333 25th Report by the High Representative for Implementation of the Peace Agreement to Secretary General of the UN of 3 March 2004 (www.ohr.org). 334 This is a non-governmental multiethnic Organisation, which associates more than 90 NGOs of the refugees and displaced persons from BiH, Republic Croatia and Serbia. This Union has been active already for 15 years. 335 See Report of the Union, op.cit., www.sirlbih.org/Publikacije/SIRLBIH-Publication%201993-%202008.pdf. 336 25th Report of the High Representative for Implementation of the Bosnian Peace Agreement to the Secretary General of the United Nations of 3.3.2004 (www.ohr.org). 337 Union's Statement„Može li BiH biti bolja“ of 6 January 2009 (www.sirlbih.org, 16 August 2009). 338 24th Report by the High Representative for Implementation of the Peace Agreement to Secretary General of the UN of 13 October 2003 (www.ohr.org). 339 The means of the budget designated for the return were for the greatest part misused, Mirhunisa Zukic, the president of the Union declared at the Conference ”Where does the return go in BiH” („Kuda ide povratak u BiH“) held in Mostar on 28 October 2008. As one of the reasons she mentioned the noncompliance of the norms on public procurement in the realisation of the projects for return and reconstruction. See Onasa of 27 October 2008 (www.sirlbih.org, 16 August 2009). 340 Report of the Ombudsman of Federation BiH for 2003, op.cit., p. 113. 341 See Report of the Union, op.cit., www.sirlbih.org/Publikacije/SIRLBIH-Publication%201993-%202008.pdf.

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The Ombudsman of the Federation BiH observed that in the period of 1995 – 2006 the citizens mostly complained (besides the unequal treatment) about the violations of the right to respect for the home and of the right to peaceful enjoyment of the possession.342 The violation of the property rights of refugees and displaced persons is very often a consequence of the absence of legal action. The violation of these rights is, according to the Ombudsman of the Federation BiH, also caused by the omission of the enactment of the Law on denationalisation. The municipal authorities in whole BiH dispose with state-owned real estate regardless of the ban on disposition (on the prohibition on disposal with state property see Section 1.3.) and therewith directly impede restitution and return.343 Also, the Ombudsmen of the Federation BiH considered that the number of actual return is considerably lower than the number of successful restitutions.344

4.3. Economic and social consequences of restitutions/ compensations For the assessment of both, the social and financial consequences, it would be necessary to conduct a specific research. At this point only some conclusions may be offered on the basis of the collected data.

The social consequences of the return are considerable. The demographic structure would not be changed, the multiethnic structure could be preserved, and the common life could contribute to the re-establishment of the trust amongst each other. The compensation which is not accompanied by the return per se cannot have these positive social effects. But restitution is no guarantee for return. The statistics show that the percentage of those persons who returned is much smaller than of those who reclaimed their property (see Section 4.2.). Return is not only preconditioned by natural restitution, but also by the fulfilment of other conditions (reconstruction of destroyed buildings, infrastructure, employment, education and healthcare). Both, the restitution and compensation, which have different social consequences, besides that have considerable financial consequences.

The numerical data of returnees only, cannot give a real impression on the quality of the return. The declined number of returns after 2003 can have its origin in the fact that the international community transferred the responsibility for these issues onto national authorities, but also that some refugees and displaced persons founded their new existence in other parts of BiH or elsewhere. In that context the fact that the number of returns of displaced persons was constantly higher than the number of returns of refugees (with the exception of the years 1997 and 1998 – see Table 1) can be interpreted as follows: the refugees who founded their existence abroad were less motivated for return than displaced persons, living within BiH in far worse conditions or even in collective housings.

It also shows that a lot of people do not want to return to a completely changed ambience and to suffer under unsatisfactory living conditions. For example, 2750 households are without electricity.345 Generally the elderly population returns especially to rural areas. In many cases those retirees return who are supported by their relatives from abroad or from other parts of BiH or who are depending on social welfare. The young, especially the highly educated, return in a smaller percentage. According to some data only 1% of the returnees is employed by the public administration. All together has significant demographic consequences.

342 Prvi Ombudsmeni u BiH, p. 243. 343 See „Pravom protiv otimačine“, Večernje novine of 18 September 1998. 344 Report of the Ombudsmen of Federation BiH for 2003, op.cit., p. 113. 345 452.673 is the total number of housing units which have been damaged or destroyed between 1992-1995. In the period from 1996 to 2007, 307.134 housing units were reconstructed in total (F BiH: 223.376, RS: 71393, BD: 12.365). See Report of the Union, op.cit., www.sirlbih.org/Publikacije/SIRLBIH-Publication%201993-%202008.pdf.

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The smaller number of actual returns in comparison with the number of successful restitutions is a consequence of the lack of minimum living conditions for the returnees as well as the utterly changed environment, which was imposed and tolerated during the war in all three national parts of BiH.346 In general, minority returns appear in a lesser amount (repeatedly mentioned in the reports by the High Representative to Secretary General of the UN); thus more homogeneous ethnic communities emerge. In that sense one of the aims of Annex 7 failed – although the property laws have been implemented to a large extent.

The entities enacted the legislation on refugees and displaced persons in 1999 (Republika Srpska)347 and 2000 (Federation BiH).348 The provisions of those laws are harmonised to a high extent providing for responsible authorities the obligation to ensure political, economic and social conditions for return. The minimum of the conditions is envisaged as the provision of appropriate accommodation, food, health care and other social services, as well as education for children and youth.

The financing of the sustainable return accompanied by restitution or settlement of the pecuniary claim when restitution is not possible represents a significant burden to the budgets of all governmental levels in BiH. As mentioned in Section 4.1 the support by the international community declined and there are no sufficient internal budgetary sources. The state BiH will be forced to finance sustainable return through external debt. This has a considerable impact on the already extremely difficult financial situation in the country.

In addition to that, the obligation to pay pecuniary compensation could even more weigh down on the national financial and economic system. Contrary to other transitional countries, in BiH legislation on denationalisation has not been enacted until now. A very important and generally known reason for this is the impossibility of the state BiH to bear this financial burden. The situation relating to compensation for deprived or damaged property during the conflict is very similar to that and this financial problem can completely hinder the compensation. The national authorities reacted to these facts by enacting highly disputable legislation.

In the case Alijagić vs. Republika Srpska compensation of property deprived during the conflict was claimed. The ruling on the claim for compensation in which all three instances in Republika Srpska were involved lasted over eight years,349 after which an appeal was brought before the Constitutional Court of BiH for violation of the right to trial in a reasonable time-limit and the right to property.350 The total sum for the compensation of the deprived or damaged property during the war of this Bosnian entrepreneur from Trebinje (Republika Srpska), which was adjudicated in the judicial procedure in the Republika Srpska, was able to completely paralyse the budget of the Municipality Trebinje. This procedure, taken as a paradigm for the vast range of other similar cases, was the direct impulse for the legislator in the Republika Srpska to enact the Law on Temporary Postponement of the Enforcement at the Expense of the Budget of Republika Srpska, by which the enforcement of compensations claims for the damages originating during the conflict was postponed.351 The Law on Enforcement of Claims on Material and Intangible Damages originating from the Period of Conflict between

346 Report of the Ombudsmen of Federation BiH for 2003, op.cit., p. 113. 347 Law on displaced persons, refugees and returnes in the Republika Srpska [Zakon o raseljenim licima, izbjeglicama i povratnicima u Republiku Srpsku], Official Gazette of the Republika Srpska 33/99, 65/01. 348 Law on Displaced-Expelled Persons and Repatriates in the Federation of Bosnia and Hercegovina [Zakon o raseljenim-prognanim licima i povratnicima u Federaciju BiH], Official Gazette of the Federation BiH 19/00, 56/01. 349 Decision of the Supreme Court of Republika Srpska 118-0-Rev-06-000430 of 31 January 2008, Decision of the Supreme Court of Republika Srpska Rev-430/04 of 15 March 2005, Decision of Regional Court in Trebinje Gž-156/05 of 25 November 2005, Decision of Regional Court in Trebinje Gž-577/03 of 24 September 2004, Decision of the Municipal Court Trebinje P-246/99 of 13 October 2000. 350 The Constitutional Court decided partially granting this appeal, partially dismissing it ratione temporis (Alijagić vs. Republika Srpska AP 775/08 of 30 May 2009). 351 Zakon o privremenom odlaganju od izvršenja potraživanja iz budžeta Republike Srpske, Official Gazette of the Republika Srpska 110/03, 63/04.

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20 May 1992 until 19 June 1996352 envisaged the payment of compensation for damages originated during the conflict by issuing of the bonds of Republika Srpska in accordance with the Law on Determination and Settlement of the Domestic Debt of the Republika Srpska.353

Also, the Federation BiH passed a number of acts dealing with claims arising from damages caused during the conflict and with postponement of the enforcement of these claims: The Law on Determination and Settlement of Claims originated during the period of Warfare and immediate Threat of War,354 the Decree on Determination and Realisation of the Public Debt of the Federation BiH arising during the Period of Warfare and immediate Threat of War,355 the Law on Temporary Postponement of Enforcement at the Expense of the Budget of Federation BiH356 and the Law on Settlement of Domestic Debt of the Federation BiH.357 The main goal of this legislation was to postpone the enforcement of the final judgements at the expense of the budget of the Federation BiH. This caused also the amendment of the general rules for enforcement (Law on Enforcement) providing in Art. 138 a special clause for cases when enforcement was to be performed again on account of the state budget.358 The intention of the legislator is to compensate damages from the warfare period by issuing of the bonds of Federation BiH.

In both entities this legislation has had a deep impact on the effective implementation of the right to compensation for property deprived or damaged during the conflict. It represents the violation of the right to effective legal remedy and the right to property. This was also the position of the Constitutional Court BiH. The Constitutional Court pointed out that the state, in principle, cannot adopt laws preventing enforcement of legally valid court decisions, since this would be in contravention with the principle of the rule of law under Art. I.2. of the Constitution of BiH and with the right to a fair trial under Art. II.3.(e) of the Constitution of BiH and Art. 6.1 of the ECHR.359 The ECtHR advanced the same view;360 however, the legislation is still in force.

352 Zakon o ostvarivanju prava na naknadu materijalne i nematerijalne štete nastale u periodu ratnih dejstava od 20. maja 1992 do 19. juna 1996. godine, Official Gazette of the Republika Srpska 103/05. 353 Zakon o utvrđivanju i načinu izmirenja unutrašnjeg duga Republike Srpske, Official Gazette of the Republika Srpska 63/04, 47/06, 68/07, 17/08, 64/08, 34/09. 354 Zakon o utvrđivanju i ostvarivanju potraživanja nastalih za vrijeme rata i neposredne ratne opasnosti, Official Gazette of FBiH 43/2001. 355 Uredba o načinu utvrđivanja i realiziranja javnog duga Federacije BiH nastalog u vrijeme ratnog stanja i neposredne ratne opasnosti, Official Gazette of FBiH 17/02, 32/02, 34/02. 356 Zakon o privremenom odlaganju od izvršenja potraživanja na osnovu izvršnih odluka na teret budžeta Federacije BiH, Official Gazette of FBiH 9/04, 30/04. 357 Zakon o utvrđenju načina izmirenja unutarnjeg duga Federacije BiH, Official Gazette of FBiH 66/04, 49/05, 55/06, 31/08, 32/09. 358 Law on Amendments on the Law on Enforcement [Zakon o izmjenama i dopunama Zakona o izvršnom postupku], Official Gazette of FBiH 33/06. 359 AP 288/03 of 17 December 2004. 360 ECtHR, Appl. No. 13628/03, Mirazović v. BiH, judgement of 16 May 2006.

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Chapter 2 –CROATIA 1. Overview of situation of properties to be subject of restitution 1.1. General situation Since the termination of the regional conflict in Croatia in 1995, a series of special pieces of legislation have been adopted. This legislation provides, among other things, that owners who abandoned private immovable property during the conflict shall also have access to property rights. At first, the emphasis of these separate pieces of legislation was put on the regulation of temporary occupancy, the administration of immovable property and its temporary use and possession by persons with unresolved housing status. Subsequently, the emphasis was placed on the development of proceedings for repossession by original owners, and the provision of adequate housing for the temporary occupants or users.

The special legislation on temporary occupancy and administration was based on the basic principle that the persons who had fled, and who had therefore not been using his/her immovable property, did not thereby lose his/her rights to the property. The special legislation on temporary occupancy did not contain any express provisions stipulating that owners who had abandoned, and were not using, immovable property would be dispossessed of their ownership, and that any rights of ownership would cease to exist by virtue of the abandonment. In other words, in matters concerning the temporary occupancy and the administration of the abandoned property, the constitutional guarantee of ownership laid down in Art. 48 of the Constitution of the Republic of Croatia was considered. In addition, the constitutional guarantee was taken into account that, in the interest of the Republic of Croatia, ownership could only be compulsorily acquired, if it was compensated for by its market value and payment was made in accordance with the provisions of Art. 50 of the Constitution.361362 Physical abandonment of such immovable property and its non-possession and non-use were not considered as constituting de facto dispossession of ownership pursuant to the general legislation governing ownership.363

Persons who had abandoned their immovable property and had ceased to be in possession thereof still continued to be the owners of such property. Therefore, their rights to request its restitution never ceased to exist. The administration and possession of abandoned immovable property, regulated in separate acts, was intended to be of temporary application. This derives clearly from the wording of the titles of these acts and the contents of the rights conferred on the users of abandoned immovable property (i.e. temporary takeover and management, temporary possession and use, repossession by original owners, etc.).

361 Official Gazette NN 41/2001 - consolidated text. 362 Art. 48, para. 1 of the Constitution of the Republic of Croatia (1990) guarantees the right of ownership. In Art. 50 of the Constitution it is laid down that in the interest of the Republic of Croatia, ownership can be limited or expropriated and compensated in the amount of the market value to protect the interests and security of the Republic of Croatia, nature, the environment and public health. 363 When the first legal acts providing for the temporary takeover and management of property were passed in 1995, the Act on the Basic Property Relations (ABPR) was effective. It was a general property law regulation which in 1980, as a federal Act, was valid in the territory of the former SFRY and by the Act on the Adoption of the ABPR was adopted as an Act valid in the Republic of Croatia (Official Gazette NN 53/91). In Art. 46, paras. 1, 2 the ABPR expressly laid down that the right of ownership ceased to exist, when a piece of real estate was abandoned. A piece of immovable property was considered abandoned when the owner in an unambiguous manner expressed his/her will of not wanting to posses it (Art. 46, paras. 1, 2 of the ABPR). However, this Act did not provide for the legal effects of abandonment of real estate, because when the ABPR was adopted as a republican Act, Art. 46, para. 3 (stipulating that the abandoned piece of real estate became state owned at the moment of its abandonment) was put out of force. Art. 133 of the Property Act (PA), which entered into force on 1 January 1997 stipulated that an owner was considered to have abandoned his/her piece of real estate by a written statement on the basis of which the ownership was then removed from the land register and the immovable property was then, ex lege, owned by the Republic of Croatia.

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1.2. Kinds of properties All movable and immovable property and, in particular, agricultural lands, houses and flats, business buildings and premises, as well as other immovable objects and any attached movables therein and thereon, such as vehicles, vessels, tools and the like, were subject to temporary takeover and management (Art. 3 TA).

1.3. Denationalisation vs. displacement/occupation of abandoned properties in the regional conflict 1.3.1. Socially owned apartments and occupancy rights

Occupants of socially owned flats had a special right, called the “right of tenancy”, which was a sui generis type of tenancy, set out in the Tenancy Relations Act 1974 (hereinafter: TRA). The right of tenancy (Art. 3 TRA) was defined as a right to occupy a socially owned flat (i.e. so-called occupancy rights). The lawful possessor had a right and an obligation to permanent and unrestricted enjoyment and maintenance of the flat; in addition s/he had the obligation to participate in the administration of the residential building according to the provisions of the TRA.

The tenancy right was not considered to be a property right within the scope of general ownership rules. However, it did have some characteristics of a property right: It had an absolute effect towards third parties. The tenancy right holder had the power to protect his/her rights against all third parties. The right was held indefinitely. It could also be exercised by the members of the tenancy right holder’s family household. They had the right to continue using the flat unrestrictedly after the tenancy right holder’s death (when a new tenancy right holder would be designated between them following special rules set out in the TRA).

The reasons for the cessation of tenancy rights were expressly prescribed by the TRA (Art. 95 et seq.). The tenancy right would cease by termination. For instance, the landlord could terminate the tenancy, if the tenant and the members of his/her family household stopped using the flat for more than 6 moths continuously (Art. 99, para. 1 TRA).

The concept of tenancy rights existed in Croatia until the enactment of the Tenancy Act364, which entered into force on 28 October 1996. By then, many tenancy right holders had acquired ownership of flats by purchasing socially owned flats based on a special Act on the Sale of Flats with Tenancy Rights365. By enactment of the Tenancy Act, previous tenancy rights ceased and former tenancy right holders acquired rights and obligations of lessees (Art. 30 TRA). These persons executed lease contracts at no fixed duration and controlled rents.

Liberated territories (i.e. territories which were occupied by paramilitary forces between 1991–1995) were subject to a special Act on Leases of Flats in Liberated Territories,366 which was enacted before the Tenancy Act and entered into force on 27 September 1995. This Act provided the termination of rights of tenancy for flats on previously occupied and now liberated Croatian territory. These rights were terminated by virtue of law, through enactment of the Act on Leases of Flats in Liberated Territories, if the tenancy right holder had vacated the flat and had not used it for more than 90 days after the Act had came into force (Art. 2, para. 1). If tenancy right holder’s household family members remained in the flat, the landlord designated by the Act could choose to rent the apartment out to them (Art. 2, para. 2). Flats on which the tenancy rights ceased by virtue of Art. 2 of the Act were rented out to persons engaged in security, reconstruction, development, repopulation of refugees etc. (Art. 4) with a mandatory 3-year work requirement in the area. The lessee would acquire a right to purchase the flat according to the terms of the Act on the Sale of Flats with Tenancy Rights after the 3

364 Official Gazette 91/96, 48/98, 66/98, 22/06, 365 Official Gazette 43/92 with amendments. 366 Official Gazette 73/95.

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years (Art. 8). The Act was repealed with the Act on Repeal of the Act on Leases of Flats in Liberated Territories on 8 August 1998.367


The temporary management of construction land was regulated by the same acts like other kinds of “abandoned” property. The privatisation of the socially owned construction land was regulated by the Property Act. On the basis of the transitional and final provisions of the PA (Arts. 360-362), rights to socially owned construction land were transformed into the right to ownership whereby their holder is known. The owners of construction land that used to be in social ownership (ex lege) were now those who had rights to socially owned construction land, their heirs or other legal successors. All holders of such transformed rights were able to protect and prove such rights acquired through the process of transformation in accordance with the general rules on the protection of ownership. The denationalisation of the socially owned construction land was regulated by the Act on Compensation for Property Taken during the Time of Yugoslav Communist Regime.368 The nationalised construction land was returned to the former owners of their heirs (Art. 16).

1.4. Specific problems related to the land register/cadastre Updating the land register for state owned houses, flats and building plots is important in many ways: It is important not only for the implementation of the programme of housing care for temporary users, but also for the housing care of other categories of returnees, such as former holders of tenancy rights in socially owned flats (hereinafter: former OTR holders). They also receive housing care in and outside the Areas of Special State Concern, by moving into state owned flats, or by organising the construction of new flats.

The acceleration of the process of improving the organisation of ownership rights and relationships in houses or flats owned by the State (establishment of ownership, registration of ownership in the land register, takeover of State owned real estate, etc.) will certainly speed up the process of housing care in conformity with valid legislation. Finally, updating the land register is also important for the protection and realisation of the rights of owners whose property was temporarily transferred to a third party and particularly for proving ownership in the proceedings for repossession.369


Particularly important is the Agreement on Succession Issues signed on 29 June 2001 by Bosnia and Herzegovina, the Republic of Croatia, the Republic of Macedonia, the Republic of Slovenia and the FRY in Vienna (Official Gazette NN – International Treaties, 2/04, 5/04) and moreover Annex G to that Agreement (Private Property and Acquired Rights). The provisions of Annex G stipulate that private property and acquired rights of citizens and other legal persons of the SFRY shall be protected by successor States in accordance with the provisions of this Annex (Art. 1). The main principle on which the protection of private property is based (Art. 2) is the right to movable and immovable property located in a successor state, to which citizens or other legal persons of the SFRY were on the 31 December 1990 entitled to. Such property is to be recognised, protected and restored by that State in accordance with established standards and norms of international law and irrespective of the nationality, citizenship, residence or domicile of those persons. This includes persons who, after 31 December 1990 acquired citizenship or established

367 Official Gazette 101/98. 368 Official Gazette 92/96, 39/99, 42/99, 92/99, 43/00, 131/00, 27/01, 65/01, 118/01, 80/02. 369 There is an ongoing project in Croatia called “Organised Land“ – Real Property Registration and Cadastre Project, which is aimed at accelerating the real property registration in cadastral and land registration system in order to increase the security of legal transactions of real estate. More about the project at www.uredjenazemlja.hr/cms/en/home.

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domicile or residence in a State other than a successor State. Persons unable to realise such rights are entitled to compensation in accordance with civil and international legal norms.

2.1.2. The role the of the European Court of Human Rights

The role of the ECtHR is important in national courts for the protection of property rights in the restitution procedures. The ECtHR decided in several cases about this problematic issue concerning the procedure for restitution of property under temporary management regime or the procedure for compensation of damage for destroyed property. The applications were based on the violation of Art. 6, para. 1 ECHR and/or Art. 1 Protocol 1 of the Convention.370

2.2. The role played by international organisations The OSCE has played a very important role for the implementation of the housing care programs. The OSCE Mission to Croatia was established in April 1996. The original mandate of the OSCE Mission in Croatia was to provide assistance and expertise to the Croatian authorities at all levels, as well as to interested individuals, groups and organisations, in the field of the protection of human rights and the rights of persons belonging to national minorities. The mission was designated to assist and advise on the full implementation of legislation and to monitor the proper functioning and development of democratic institutions, processes and mechanisms.371

In 2007, after the OSCE Mission to Croatia had outlined the progress achieved in the field of refugee return and integration (in particular in the implementation of the housing care programs for former Occupancy and Tenancy Rights holders), the OSCE Permanent Council decided to close the Mission and open an office in Zagreb with a new mandate. One mandate of the office is to report on residual aspects of the implementation of the housing care programs in Croatia.372 373

3. Analysis of the legal and administrative system 3.1. Legal framework

3.1.1. Overview The legal framework for private property issues following the regional conflict in Croatia is very complex. In addition to the Constitution of the Republic of Croatia and the international treaties to which the country has been a signatory, it includes two groups of legislation:

1) The general legislation governing ownership and ownership relations (the so-called general legal framework) includes the constitutional provisions on the protection and realisation of ownership rights in the territory of the Republic of Croatia (Arts. 3, 48 and 50 of the Constitution, see Section 3.1).

The Property Act374, which has been in force since 1 January 1997, and the Land Register Act375 also belong to the general legal framework. Besides these acts,

370 See ECtHR, Appl. No. 61237/00, Aćimović v. Croatia, judgement of 9 October 2003; ECtHR, Appl. No. 9224/06, Brajović-Bratanović v. Croatia, judgement of 9 October 2008; ECtHR, Appl. No. 60533/00, Kastelic v. Croatia, judgement of 10 July 2003; ECtHR, Appl. No. 69265/01, Kostić v. Croatia (friendly settlement), decision of 18 November 2004; ECtHR, Appl. No. 22344/02, Kunić v. Croatia, judgement of 11 January 2007; ECtHR, Appl. No. 9056/02, Radanović v. Croatia, judgement of 21 December 2006; ECtHR, Appl. No. 78008/01, Varićak v. Croatia, judgement of 21 October 2004. 371 Original mandate of the OSCE Mission to Croatia, www.osce.org/documents/pc/1996/04/2150_en.pdf. 372 See OSCE Mission to Croatia, Status report on Croatia's progress in meeting international commitments since June 2006, 19 July 2007, pp. 6, www.osce.org/zagreb/29459.html. 373 The Office is located in Zagreb. In its Decision No. 880 of 18 December 2008, the OSCE Permanent Council decided to extend the mandate of the OSCE Office in Zagreb until 31 December 2009. 374 Property Act/PA (Official Gazette NN 91/96, 68/98, 137/99, 22/00, 73/00, 114/01, 79/06, 141/06, 146/08, 38/09). For the property relation issues analysed in this study, the provisions of the Basic Property Law

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numerous separate laws lay down special provisions for immovable property, such as laws on agricultural land, forests, waters, protected parts of nature, islands, et al.

In order to realise and to protect ownership rights in lawsuits, the Civil Procedure Act376 and the Enforcement Act377 are of special importance. The Act on General Administrative Procedure378 applies in ownership rights proceedings, which are decided in an administrative procedure.

The general law of obligations is the Obligations Act379. This Act includes obligations resulting from the use of another person’s immovable property and the liability for damage caused by destruction or damage of another’s property.

2) Separate legislation deals with very complex issues of reconstruction, the status and the return of displaced persons and refugees. The framework also includes the reconstruction and development of areas of special state concern, compensation for damage sustained during the regional conflict as well as the protection and realisation of private ownership rights on immovable property as a result of the regional conflict. Separate legislation governs private property issues following the regional conflict for repossession of the temporarily occupied property of the original owners and also the restoration of destroyed or damaged property. In matters concerning the solution of ownership relations of immovable property, resulting from the regional conflict, the provisions of separate legislation take precedence over general regulations. General legislation applies in a subsidiary way, when separate legislation in relation to a specific issue exists.

3.1.1.1. Legislation on “abandoned” property

Temporary Takeover and Management of Property Act (1995)

The temporary takeover and management of property was laid down in the Temporary Takeover Act (hereinafter: TA), which entered into force on 27 September 1995.380 The temporary takeover, use, management and supervision of property specified in Art. 2 of the Act concerned abandoned immovable property whose owners had ceased using it. The criteria for the determination which property was subject to temporary takeover were the following ones: 1. the property’s location in the Republic of Croatia (including the initially occupied and then liberated territories of the Republic of Croatia), 2. the temporary stay of owners in particular areas (e.g. a temporary stay in the occupied regions of the Republic of Croatia) and 3. the owner’s citizenship (e.g. citizenship of the FRY).

Such property was placed under a temporary management regime as follows:

Property located in the previously occupied and subsequently liberated areas of the Republic of Croatia, abandoned by their owners and no longer used by them (Art. 2, para. 1 TA),

Property located in the Republic of Croatia owned by individuals who were no longer personally using it and who had left Croatia after 17 August 1990, and who lived in the occupied territory of the Republic of Croatia, or in the territory of FRY (Serbia and Montenegro), or in the occupied territory of BiH (Art. 2, para. 2 TA),

Relations were also relevant (Official Gazette NN 51/91) which had been effective until the PA entered into force. 375 Official Gazette NN 91/96, 68/98, 137/99, 114/01, 100/04, 107/07, 152/08. 376 Official Gazette NN 53/91, 91/92, 112/99, 88/01, 117/03, 88/05, 02/07, 84/08. 377 Official Gazette NN 57/96, 29/99, 42/00, 173/03, 194/03, 151/04, 88/05, 121/05, 67/08. 378 Official Gazette NN 53/91 and 103/96, From 1 January 2010, a new Act on General Administrative Procedure will be applied (Official Gazette NN 47/09). 379 Official Gazette NN 35/05, 41/08. For the obligations which had arisen prior to 1 January 2006 the previous Act on Obligations was relevant (Official Gazette NN 53/91, 73/91, 111/93, 3/94, 7/96, 91/96, 112/99 and 88/01 which ceased to be effective when the new Obligations Act entered into force on 1 January 2006. 380 Official Gazette NN 73/95. By the entry into force of the TA, the Regulation on the Temporary Takeover and Administration of Immovable Property (entering into force on 4 September 1995, NN 63/95) ceased to be effective.

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Property located in the Republic of Croatia but owned by citizens of the FRY (Serbia and Montenegro) who were no longer personally using it (Art. 2, para. 3 TA).

Pursuant to Art. 4 TA (ex lege – by the entry into force of the TA) the management of such property was transferred to the State. Possession was acquired by the municipalities, towns or the City of Zagreb, depending on where the property was located. The main purpose of the temporary takeover and management was to protect and secure creditors’ claims (Art. 1 TA). However, notwithstanding the clear legal definition of the purpose of takeover and temporary management, there was no doubt that the goal of takeover was to ensure temporary housing for people displaced by the war.

The TA (Official Gazette NN nos. 73/95, 7/96, 100/97) ceased to be effective on the basis of the Act on Termination of the Takeover Act381 which entered into force on 5 August 1998. The Act on Termination of the Takeover Act laid down that the Programme of Return and Care for Displaced Persons, Refugees and Exilees (NN 92/98) would provide for the proceedings concerning the temporary use of property, while separate treaties would provide for the property under temporary management not covered by the Programme (Art. 2, paras. 1, 2 of the Act on Termination of the Takeover Act).


Programme for the Return of Refugees and Displaced Persons (Return Programme, 1998)

The Programme for the Return of Refugees and Displaced Persons (hereinafter: Return Programme) entered into force on 26 June 1998. Its provisions became the basis of Art. 2, para. 1 of the Act on the Termination of the Takeover Act relating to the regulation of private property issues following the regional conflict. Although the Return Programme was not a legislative act, it provided proceedings whereby ownership rights could be exercised and protected (a fact that questioned its legality and constitutionality). The Return Programme contained a number of provisions relating to the process of the return and protection of property placed under temporary management of the Republic of Croatia.382 Therefore, the provisions of the Programme were of special importance for the process of the return of persons, particularly its points 9 and 10.

Amendments to the Act on Areas of Special State Concern (2000, 2002)

On 13 June 1996, at a time when the TA was still effective, the Act on Areas of Special State Concern (hereinafter: AASSC)383 came into force.

New Act on Areas of Special State Concern (2008)

The new Act on Areas of Special State Concern (hereinafter: AASSC/2008) has been in force since 23 July 2008. It does not contain specific provisions concerning the return of property temporarily occupied and transferred for another persons’ use. It lays down the proceedings for the return of the temporarily transferred property, which should be completed in accordance with the provision of the previous AASSC.

3.1.2. Constitutional provisions

Particularly important provisions for the protection and realisation of ownership rights in Croatia are the provisions of Arts. 3, 48 and 50 of the Constitution.

381 Official Gazette NN 101/98. 382 The legal force of the Return Programme resulted from the provisions of the Act on the Termination of Effectiveness of the ATT, i.e. from Art. 2 which expressly provided that the Programme was applied in the proceedings dealing with temporary use. 383 Official Gazette 44/96.

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Art. 3 of the Constitution lays down that freedom, equal rights, national equality and the equality of genders, love of peace, social justice, respect for human rights, inviolability of ownership, conservation of nature and the environment, the rule of law and a democratic multiparty system are the highest values of the constitutional order of the Republic of Croatia and the ground for interpretation of the Constitution.

Art. 48, para. 1 of the Constitutions stipulates that the right of ownership must be guaranteed. The Constitution also contains the so-called principle of social dependence on ownership and states that ownership also implies obligations. Owners and users of property must contribute to the general welfare (Art. 48, para. 2).

The preconditions for expropriation and for limitations on ownership are expressly provided for in Art. 50 of the Constitution.384 Property may, in the interest of the Republic of Croatia, be restricted or expropriated by law upon the payment of compensation equal to its market value. Property rights may exceptionally be restricted by law for the purposes of protecting the interests and security of the Republic of Croatia, nature, the environment and public health.385

3.1.3. Legislation on restitution/compensation

3.1.3.1. Restitution of abandoned apartments

The Programme of housing care for former holders of tenancy rights in socially owned flats (hereinafter: former OTR holders) began in the Areas of Special State Concern, after amendment of the former AASSC in 2002. It was conducted in such a way that even persons who had not acquired the status of protected tenants in the previous social ownership regime were considered beneficiaries of the measures of housing care (Art. 7, para. 3 of the former AASSC).386 Outside the Areas of Special State Concern, the housing care programme of the former OTR holders was carried out on the basis of separate programmes and Government decisions (for example, the Decision on the Implementation of Housing Care for Refugees/former OTR holders of the flats outside the Areas of Special State Concern of 29 May 2008).387 The housing care programme was carried out at the request of returnees/former OTR holders. The deadline for the submission of applications outside the Areas of Special State Concern expired on 30 May 2005388, while application to the AASSC is still possible.

As many as 8,500 positive decisions have been issued, 7,000 for the AASSC and around 1,500 for other areas. Until the end of 2006, 3,300 cases of former OTR holders were solved, in 2007 around 1,400, and during 2008 around 1,427 cases. For the total of 2,346 former OTR holders whose applications had been accepted by the end of 2008, flats will be provided by the end of 2009.389

3.1.3.2. Legislation on restitution of private property

3.1.3.2.1. Temporary Takeover and Management of Property Act (1995)

Subject to temporary takeover and management were all movable and immovable property, and in particular agricultural lands, houses and flats, business buildings and premises, as well as other immovable objects and any attached movables therein and thereon, such as vehicles, vessels, tools and the like (Art. 3 TA). Pursuant to Art. 4 TA

384 A general provision on the limitation of fundamental rights and freedoms can be found in Art. 16, para. 1 of the Constitution. Freedoms and rights may only be restricted by law in order to protect freedoms and rights of others, public order, public morality and health. 385 However, the legislator must make sure that the limitations are proportional to the goals achieved by these limitations. Art. 16, para. 2 expressly provides that every restriction of freedoms or rights shall be proportional to the nature of the necessity for restriction in each individual case. 386 Cf. Art. 10 of the AASSC/2008. 387 Official Gazette NN 63/08. 388 Official Gazette NN 79/05. 389 These data have been taken from the interview “Helping to Ensure Quality Housing for Returnees“, 4 March 2009, www.osce.org/zagreb/item_2_36587.html.

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(ex lege – by the entry into force of the TA) the management of such property was transferred to the State, and possession was acquired by the municipalities, towns or the City of Zagreb, depending on where the property was located.

Art. 5, para. 1 of the TA expressly laid down that the possession of temporarily taken property might be transferred for the use of displaced persons and refugees, returnees whose property had been damaged or alienated during the homeland war or to invalids, families of the deceased and disappeared, Croatian defenders and other citizens performing activities necessary for the security, reconstruction and development of occupied territories (hereinafter: ‘temporary users’).

The legal position of temporary users was expressly laid down in the TA (Art. 7). They were bound by law to manage the property in the manner of diligent masters. Towards third parties, however, they were entitled to protect themselves, as if they were the owners390, and they were allowed to use all income generated from the property for their own purposes (Art. 7, para. 1 TA). However, they were not entitled to dispose of their property in the legal sense. Any legal transactions entered into contrary to the ban would be deemed null and void (Art. 7, paras. 2, 3 TA).

The legal position of owners of property under temporary administration was laid down in Arts. 8, 9, 11 et al TA. Most of the “standard rights of ownership”391 were suspended. The owners were not entitled to repossession and use of their property, pursuant to a determination that such rights had been transferred to temporary owners, who had acquired all the power in relation to third persons which is normally attached to ownership of immovable property (Art. 7, para. 1). Original owners did not even have the right to the income generated from their property, because temporary users were entitled to it as well (Art. 7, para. 1). Original owners were not entitled to enter into any legal transactions, such as selling the property, leasing it, placing a lien on it or encumbering it in any other way (Art. 7, para. 1). Any legal transactions contrary to the ban were considered void (Art. 8, paras. 1, 6).392 It was only possible to exchange property with other persons.393

However, the TA did not deprive the owners of the right to request repossession of immovable property (Art. 11, para. 1). It was expressly provided in the TA that such property would be returned to the possession of original owners, provided they returned to Croatia 90 days from the entry into force of the TA (27 September 1995), and applied for repossession. Immovable property was repossessed by the original owner by the annulment of the decision on temporary occupancy or use (Art. 11, para. 1 TA). The TA did not expressly provide consequences for the failure to apply within the time limit for the submission of the application for repossession, but it stated that a separate act would provide clauses for property not returned to the original owner’s possession and use (Art. 15). However, such an act has never been passed, but amendments to Art. 11, para. 1 of the TA stipulating a 90 day time limit for applications for repossession have been made.394 The amended Art. 11, para. 1 expressly provided that the issue of repossession and use would be regulated by the Treaty on the Normalisation of Relations between the Republic of Croatia and the FRY.395 The

390 This actually meant that they were authorised to make ownership claims for the protection of ownership (rei vindicatio, actio negatoria, et al). 391 The expression "standard rights of ownership" included the rights of possession, management, disposition and use. 392 The law, however, provided for the possibility that on the proposal of the Ministry of Justice certain property was to be excluded from the prohibition on disposition (Art. 8/2). 393 An exchange was possible with the consent of the Minister of Justice in favour of Croatian citizens or members of the Croatian people who had been compelled to leave the FRY or the occupied territory of BiH (Art. 8/3 TA). 394 Exchange Act of the TA (Official Gazette NN 7/96). 395 Art. 7, para. 1 of the Agreement on the Normalisation of Relations between the Republic of Croatia and the FRY (Official Gazette NN-International Treaties 10/96) expressly stipulated, among other things, that the parties to the Agreement would ensure the conditions for a free and safe return of refugees and displaced persons to their places of residence or other places they had freely chosen and that they would make it possible for people to have their immovable property returned or would receive just compensation.

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amendment became effective on 26 January 1996, after the time limit of 90 days first prescribed in Art. 11, para. 1. The possibility of realising (after the expiry of the time limit of 90 days upon the entry into force of the TA) the ownership rights of repossession and use of property thus remained.

The Legal Position of Temporary Users in the Case of the Termination of the Right to Temporary Possession and Use. The right to temporary use and possession ceased to exist by virtue of a decision by the Commission on the Annulment of Decisions on Temporary Use. The Commission annulled the decisions in the cases specified by the TA. The first group consists of the cases, where temporary owners had failed to manage the property with the standard care of diligent masters, and/or where they managed immovable property contrary to the TA or where the possibility of the use of a temporary user’s own property arose. At that point in time, the mere annulment of the decision created an obligation for a temporary user to transfer the property to the possession of the municipality or town. For the second group of cases the annulment took place, because the owner, in agreement with the Ministry of Justice, exchanged his/her immovable property with a citizen of the Republic of Croatia or a Croatian national who had been forced to leave the FRY or the occupied territory of BiH (Art. 8, para. 3 TA). In such cases, the obligation to transfer immovable property to the new owner arose only when the Commission provided other equivalent immovable property for temporary occupants or users (Art. 9, para. 2). The Commission annulled the decision for the third group of cases, because the original owner had applied for repossession within the statutory time limit of 90 days. Even then, repossession only took place after other equivalent immovable property had been provided for the temporary occupant or user (Art. 11, para. 3, subsequently Art. 11, para. 4).

The Legal Position of the Owner in the Case of Return of Property. The legal position of the owner, if the property was returned, depended on whether the temporary user had been given another equivalent property to use. Immovable property was returned to the original owner and could be repossessed by him/her only, if an equivalent housing unit was provided for the temporary user to move into. Otherwise, the transfer of the original owner’s property was cancelled.

The TA did not lay down who was obliged to provide equivalent immovable property for possession and use by the temporary user. Nor did the TA lay down the time limit in which, after the annulment of the decision, equivalent immovable property had to be provided for the temporary user. Moreover, there were no criteria for determining what comprised ‘equivalent’ immovable property which was to be provided for the temporary user. No proceedings were laid down whereby the original owner could exercise the right of repossession. Therefore, the legal position of the original owner to whose favour a positive decision for repossession had been made was very uncertain. Despite the fact that his/her property had formally been returned, the original owner could not realise his/her ownership rights regarding repossession and use of such property.

In 1997 some provisions of the TA were brought before the Constitutional Court for the establishment of their constitutionality. The Constitutional Court pronounced the provisions of Art. 8 of the TA as unconstitutional, because they prevented the owner of the temporarily transferred property to legally dispose of it; further Art. 9, para. 2, which postponed the transfer of immovable property to the possession of its new acquirer; Arts. 9, para. 2 and 11, para. 1 providing that the issue of the return of possession and use of property would be set forth in the Treaty on the Normalisation of Relations between the Republic of Croatia and the SRY; as well as Art. 11, para. 4, which stated the return of the property only after equivalent immovable property had been made available to the temporary user. The statement of reasons stated that the provisions were contrary to the

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constitutional guarantee of ownership, the permissible limitations to ownership and the equality of citizens of Croatia.396

After the Constitutional Court had annulled Art. 11, para. 1 of the TA (after the amendments of 1996, Art. 11, para. 1 stipulated that the question of the return to possession and use would be governed by the Treaty on the Normalisation of Relations between the Republic of Croatia and the FRY), the return of the temporarily transferred property was not expressly provided by a separate law. The owner’s right to a return of property for repossession could be realised by way of claims of ownership in accordance with the general legislation on the protection of ownership.397 However, the grounds for such claims against temporary users who possessed and used real estate on the basis of valid decisions on temporary possession and use were debatable, because the sued temporary users had been given the right to the possession of immovable property on a valid legal basis.398 In the absence of any specific provision for the realisation of the right to repossession, which would include the annulment of the decision on temporary use, and on the basis of general rules governing the protection of ownership, the original owners were able to make ownership claims and to succeed in regaining the possession of their property from those who had been illegally using it (i.e. without any title deed).

The TA (Official Gazette NN nos. 73/95, 7/96, 100/97) ceased to be effective on the basis of the Act on Termination of the Takeover Act399 which entered into force on 5 August 1998. The Act on Termination of the Takeover Act laid down that the Programme of Return and Care for Displaced Persons, Refugees and Exilees (NN 92/98) would provide for the proceedings concerning the temporary use of property (Art. 2, paras. 1, 2 of the Act on Termination of the Takeover Act).

3.1.3.2.2. Programme for the Return of Refugees and Displaced Persons (Return Programme, 1998)

The Programme for the Return of Refugees and Displaced Persons (hereinafter: Return Programme) provided in point 9 that the owners of immovable property in Croatia who had Croatian citizenship could apply to housing commissions established in municipalities and towns400 for repossession of property temporarily occupied by other persons. The time limit for such applications was not determined. It was only determined within which time limit housing commissions had to render their decision on the annulment of the temporary use (7 days), the deadline by which the temporary user had to vacate the property after being requested to do so, and the provisions of alternative accommodation. A precondition for the decision on annulment was the submission of proof of Croatian citizenship and of ownership. It was not expressly specified which documents constituted proof of ownership of immovable property, which in practice gave

396 Cf. Constitutional Court decision U-I-1037/1995; U-I-179/1996; U-I-639/1997; U-I-839/1997; U-I-948/1997 of 25 September 1997 (Official Gazette NN 100/97).In its statement of reasons the Constitutional Court noted that in some provisions, individual concepts were insufficiently defined (abandoned property, the rights and powers of temporary users, the rights and powers of owners and the like) and that such ambiguities were mostly the result of the knowledge acquired from direct implementation of the provisions contrary to the basic content and the purpose of the Act. However, when assessing the constitutionality of the Act, the Court had to take into account the actual situation at the time of the adoption and the implementation of the Act. Therefore, the Court ruled that not all the provisions were unconstitutional. Nevertheless, the Court emphasised that when the circumstances which had led to the adoption of the Act seized to exist, i.e. when the need for special protection of abandoned property no longer existed, other provisions of the Act could also be excluded from the range of powers the legislator possessed on the basis of Art. 50, para. 2 of the Constitution dealing with the limitations of ownership rights. The legislator had to take that into account. Cf. the statement of reasons in the respective decision of the Constitutional Court. 397 For example, with the implementation of the rules on owners' claims referred to in Arts. 37, 41 of the ABPR (effective until 1 January 1997) or Arts. 161, 162, 166 of the PA (effective from 1 January 1997). 398 For example, pursuant to Art. 163, para. 1 of the PA, the possessor was entitled to refuse the transfer of things to their owner, if the owner had the right to their possession. 399 Official Gazette NN 101/98. 400 The powers of the newly established Housing Commissions were prescribed in point 9 of the Programme entitled “Introductory Remarks”, and the establishment of Housing Commissions in point 14 of the Programme entitled “Return Procedures”.

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rise to various interpretations, which made exercising the right to repossession more difficult.

Legal position of temporary users after the annulment of the decision on temporary use. A temporary user was able to lodge an appeal to the Municipal Court against the decision of the housing commission on the annulment of the decision on temporary use (Art. 2, para. 3 of the Act on Termination of the Takeover Act). A temporary user was entitled to alternative accommodation, which had to be offered in the decision annulling the decision on temporary use. The housing commission which had annulled the decision on temporary use was obliged to offer alternative accommodation to a temporary user in a housing unit owned by the state. If the municipal or town authorities did not have alternative accommodation available, the priority treatment in the form of alternative accommodation was decided upon by the Agency for Mediation in Real Estate Transactions (APN) and/or the Office for Displaced Persons and Refugees. However, point 9 of the Return Programme did not clearly specify whether the eviction of a temporary user was possible only after some alternative accommodation had been provided.

Legal position of owners in the case of the return of property. Upon the annulment of a decision on temporary use and after the expiry of the time within which a temporary user had to vacate the premises, the owner acquired the right to repossess his/her immovable property. According to the general legislation on the protection of ownership, the owner could make a claim of ownership and request eviction (e.g. Art. 162 of the Ownership Act). Point 9 of the Return Programme expressly set forth the obligation of the housing commission to evict a temporary user who had not vacated immovable property within a certain time limit. It was prescribed that the court was to decide on such matters in summary proceedings and that an appeal to the first instance decision could not postpone eviction.

In other words, a decision on the annulment of a decision on temporary use did not serve as an enforcement document on the basis of which a temporary user could be evicted. If a temporary user refused to vacate the premises voluntarily, a lawsuit had to be instituted for eviction (first litigation and then enforcement proceedings). A speedy resolution of the case was possible only, because an appeal to the judgement did not prevent the institution of enforcement proceedings for eviction.

Legal position of owners whose property was illegally used. Although the owner was even then able to sue for eviction, pursuant to the general rules, the Return Programme (p. 10) laid down an obligation on housing commissions to issue writs of eviction (within 15 days from acquiring the information about illegal use) and to institute eviction proceedings against persons who illegally used another’s property. The court conducted summary proceedings and the appeal could not postpone enforcement.

Legal position of owners who could not expeditiously repossess their property. In point 15, the Return Programme expressly provided that all persons who before and after their return to Croatia had owned a house or a flat and who could not expeditiously repossess their property had to be compensated for their private property in accordance with the current market prices. The compensation was paid through the Agency for Mediation in Real Estate Transactions in Croatia. The Programme, however, failed to prescribe the time limits within which the compensation was to be paid, and whether specific deadlines were to be applied, or the prescription referred to in the Obligations Act. Moreover, the interpretation of some concepts from the Return Programme remained unclear (e.g. the inability to enter the premises, expeditious entry, whether the inability to enter one’s premises was caused by the fact that the temporary user had not moved out voluntarily and that court proceedings for eviction had been initiated, the methodology of establishing the market price, models of payment, etc.).

It is clear from the above that the Return Programme set forth some preconditions for the return of the temporarily transferred immovable property, such as the possession of

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Croatian documents (i.e. Croatian citizenship). Those who did not have Croatian citizenship and owned a house or a flat in Croatia temporarily occupied by other persons, first had to confirm their citizenship under the prescribed procedure referred to in point 2 of the Return Programme (point 11).

3.1.3.2.3. Amendments to the Act on Areas of Special State Concern (2000, 2002)

Within the framework of incentives for the settlement and development of areas of special state concern, the Act of Areas of Special State Concern (hereinafter: AASSC) stipulated the allocation of houses and flats (Art. 8 et al). Among other things, the settlers were given housing units or agricultural farms abandoned by their previous owners and not used as specified in the AT provisions (Art. 10, para. 2). If the property was returned to the original owner’s possession and use (in accordance with the AT provisions of the Return Programme), the competent ministry was obliged to provide the occupant with some other equivalent flat or a family house (Art. 10, para 3 of the AASSC).

The quoted provisions of the AASSC were first largely amended in 2000 (hereinafter: the 2000 Amendments)401 and subsequently in 2002 (hereinafter: the 2002 Amendments).402 These amendments were significant in many ways regarding private property issues following the regional conflict. On the one hand, it was expressly provided that the Areas of Special State Concern were established, among other things, for the sake of the speedy return of the population that used to live in those areas prior to the homeland war, and that the rights derived from that Act were enjoyed by all persons who had residence in or stayed in Areas of Special State Concern, as well as all legal persons headquartered in those areas.403 On the other hand, the 2000 and 2002 Amendments expressly provided for the return of temporarily transferred property and the possibility of it being transferred to other persons was excluded.404 Finally, it was expressly provided that, pursuant to the AASSC and AT provisions, no ownership right could be acquired by prescription on immovable property owned by natural persons and temporarily transferred for use to other persons (Art. 25 of the ASSC – consolidated version).405 By the 2002 Amendment, Art. 2 of the Act on Termination of the Takeover Act was pronounced invalid, as well as points 9, 10 and 14 of the Return Programme (Art. 29 of the Act on Amendments to the AASSC). A new system of return of the temporarily

ment of the previous decision on temporary use issued by the competent ministry.406

transferred property was thus established.

The aforementioned amendments provided for the return of temporarily transferred property, depending on the legal act pursuant to which the property had been transferred to be temporarily used: The return of immovable property given to temporary users pursuant to the AASSC provisions, was provided for in the 2000 Amendments of the AASSC (Art. 24 of its consolidated version), which expressly laid down that the immovable property given to other persons to be temporarily used had to be returned within 6 months following the owner’s application. However, the time limit within which the owners were obliged to request the return was not determined. Such a rule was in accordance with the Property Act provisions pursuant to which ownership was not subject to statutes of limitation and, consequently, the owners’ requests to protect his/her powers of ownership could not be limited either. Ownership had to be returned on the basis of a decision on the annul

401 The Act on Amendments to the AASSC (Official Gazette NN 73/00). 402 The Act on Amendments to the AASSC (Official Gazette NN 88/02). 403 Cf. Art. 1 of the Act on Amendments to the AASSC (Official Gazette 73/00). 404 Cf. Arts. 7, 13, 14 of the Act on Amendments to the AASSC (Official Gazette NN 73/00), Arts. 12-20 of the Act on Amendments to the AASSC (Official Gazette NN 88/02). 405 Official Gazette NN 26/03. 406 Pursuant to Art. 13 of the Act on Amendments to the AASSC, the competent ministry was obliged to annul ex officio and within 6 months from the entry into force of the Act (29 July 2000) the decisions on temporary use rendered in accordance with that Act and dealing with property owned by natural persons.

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Legal position of temporary users upon the annulment of the decision on temporary use. The competent ministry was obliged to provide alternative accommodation or a lease of a state-owned flat or a family house within 6 months from the day of the application, or to give such a person a state owned land for construction and the necessary building materials.

Legal position of owners in the case of return of property. By annulment of the decision on temporary use, the owner acquires the right to repossession of his/her immovable property. However, if the ministry fails to provide alternative accommodation within 6 months after the temporary user has submitted the application for the return, and thus fails to return the immovable property to the owner, it is obliged, at his/her request, to conclude a leasehold contract with him/her. Thus the owner will have the right to receive the rent, while the temporary user continues to use the property. Once the latter is provided alternative accommodation, the owner may make a claim for the property to be returned to his/her direct possession.

The return of property transferred for temporary use by other persons pursuant to the AT provisions was regulated in the 2002 AASSC Amendments (Arts. 27-31 AASSC - consolidated version). It expressly laid down that the competent ministry would annul all decisions on temporary use, rendered on the basis of the AT which, prior to the entry into force of the Act on Amendments of the AASSC of 2002 (1 August 2002) had not been annulled by the housing commissions.407 The ministry was obliged to make a decision on the annulment of the decision and the return of property to its original owner. Within certain time limits all decisions were to be annulled depending on the time when the owner submitted the application for return (Art. 27, paras. 2, 3 AASSC - consolidated version).408 However, the time limit for the owners to submit their applications for the return of property was not determined. On the contrary, it was expressly laid down that if the original owner had not submitted an application for return, the ministry was obliged ex officio to make a decision on repossession (Art. 30, para. 2).

Legal position of temporary users after the annulment of the decision on temporary use. The decision annulling the decision on temporary use sets forth whether a temporary user is entitled to housing care pursuant to the AASSC provisions (Art. 28, para. 1). Until his/her right to housing care is realised and appropriate housing care is provided, a temporary user is entitled to temporary accommodation (Art. 28, para. 2).409 The AASSC expressly lays down the time limits within which a temporary user must vacate the temporarily used immovable property (Art. 18, paras. 1-3). These time limits start running from the day of access to the right to temporary accommodation, i.e. from the day of entering into a leasehold contract or from the day of the last delivery of the building materials for the house.410 In other words, until the possibilities for temporary accommodation or housing care are realised, the time limits for eviction do not start running, and the owner cannot take direct possession of his/her immovable property.

Legal position of owners in the case of return of property. After annulment of the decision on temporary use, the owner acquires the right to possession and use of the immovable property, which can be exercised after all time limits have expired for the temporary user to vacate the premises. If, upon the expiry of these time limits, the temporary user has not moved out, the owner is entitled to request eviction by

407 On the basis of Art. 15, para. 2 of the AASSC, the Housing Commissions stopped working upon the expiry of 30 days after the Act had become effective. 408 The deadline for applications submitted prior to the entry into force of the AASSC/2002 was 30 October 2002, and for applications submitted after its entry into force 31 December 2002. 409 Temporary accommodation was realised by being placed into a state owned family house or a flat whose area was smaller than the needed housing area, or by being placed in a family house or a flat leased by the competent ministry (Art. 17, para. 1). 410 As a rule, the time limit was 15 days from the day of exercising the right to temporary accommodation or housing care, except in cases where housing care involves the supply of building materials in which case the time limit was 90 days from the last delivery.

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an ownership claim (Art. 18, para. 5 AASSC).411 However, also the Public Prosecution Office is authorised to submit an ownership claim for eviction within 15 days from the expiry of the time limit for eviction (Art. 18, para. 4 AASSC).412 In other words, the owner cannot request repossession only on the basis of the decision issued by the ministry on the annulment of the decision on temporary use and return; rather, the owner must start a civil action and enforcement proceedings for eviction. These proceedings may significantly delay the transfer of real estate to direct possession. However, the AASSC expressly stated that the owner who submitted an application for the return of property was entitled to compensatory damages from the state, if the property had not been returned within the time limit laid down in Art. 27, paras. 2, 3 (30 October 2002 and 31 December 2002).413

Legal relationship between the owner and the temporary user after the return of real estate to the owner’s possession. The AASSC expressly provided that the temporary user was responsible for any damage caused by his/her fault on the housing unit in temporary possession (Art. 18, para. 7). If the temporary user does not repair the damage, the Public Prosecution Office will take out an action for the compensatory damages (Art. 18, para. 9). This rule does not preclude the owner to request compensatory damages from the temporary user in accordance with general legislation. However, the application of general legislation on extra-contractual liability for damages may raise a number of questions, particularly connected with the application of statutes of limitation, the possible interruption of the limitation period, and the like.414 In addition, a temporary user is obliged to cover all overhead costs to all suppliers incurred during his/her use of the property. At the same time, all suppliers are obliged to provide electricity, water, gas etc., even if the temporary user did not cover overhead costs (Art. 18, para. 9).

Legal position of the owner whose property was illegally used. The owner whose property had been placed under temporary management and was used by a person without a proper decision for such use may take an action for the protection of ownership rights and repossession (Art. 31, para. 3 AASSC). An action for eviction against a person who does not have a proper legal basis for the use of immovable property must also be taken by the Public Prosecution Office within 60 days from the submission of documentation.

Act on Areas of Special State Concern (AASSC/2008) – legislation in force

The present Act on Areas of Special State Concern/2008 does not contain any special provisions concerning the return of property temporarily occupied and transferred for another persons’ use. However, the transitional and final provisions expressly provide that proceedings for the return of the temporarily transferred property, and compensation for damage suffered as the result of its use, should be completed in accordance with the provisions of the previous AASSC (Art. 33, para. 2 of the AASSC/2008).

411 The owner would have the same right on the basis of the general provisions of the PA which deal with the protection of ownership (e.g. Arts. 161, 162). 412 The submission of ownership claims by the State Prosecution Office raises a number of procedural questions. Does the State Prosecution Office submit an ownership claim in its name and on its own behalf? What is the position of the owner? How can the owner, on the basis of a decision upon such a claim, request eviction when he/she is not a litigant? What is the procedural position of the owner in the lawsuit? etc. 413 On 17 April 2003, the Government issued a Decision on the Level of Compensation Due to Owners for the Damage Sustained (Official Gazette NN, 68/2003). The compensation must extend from 1 November 2002 or from 1 January 2003 until the eviction of the temporary user. 414 The provisions of the former Obligations Act would apply for these cases of liability for damages (Official Gazette NN 53/91, 73/91, 111/93, 3/94, 7/96, 91/96, 112/99, 88/01), because it was valid at the time the damage was sustained and ceased to be valid on 1 January 2006.

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Act on Reconstruction (AR) – legislation in force

The reconstruction of destroyed and damaged private property is regulated by the Act on Reconstruction (AR).415 After Art. 4 of the AR was amended in 2000 (Official Gazette NN 57/00), the right to reconstruction was acquired by the owners and co-owners of houses and protected tenants in flats, as well as the owners of other destroyed or damaged assets who were citizens of the Republic of Croatia, as well as persons who in 1991 resided in Croatia (the users of the right to reconstruction). The right to reconstruction was realised on the basis of a request for reconstruction. The scope of that right depended on the level of damage.416 One of the problems highlighted within the process of realisation of this right was the length and the complexity of the proceedings following such requests and the problems connected with the level of damage of immovable property.417

The reconstruction of damaged housing units was also partly carried out under the provisions of the AASSC, if such units were located in the territory of the ASSC, within the Housing Programme by donations of building materials for the reparation and reconstruction of family houses or flats (Art. 8, para. 2, point 4 of the AASSC/2008). Persons who, within the Housing Programme, and pursuant to the provisions of the AASSC/2008, reconstructed their property, had to stay in a particular family house or flat for at least 10 years (Art. 14, para. 1 of the AASSC/2008). Where this was not the case, they were obliged to return the donated building materials. The same persons were prohibited from selling or encumbering immovable property units for a period of 10 years (Art. 14, para. 3 of the AASSC).

The value obtained for reconstruction, as a result of proceedings pursuant to the Reconstruction Act, was also relevant for the level of compensation for damage that the owners claimed for their destroyed and damaged property, pursuant to the provisions of the Act on the Liability for Damages Caused by Terrorist Acts or Public Demonstrations418, or pursuant to the Act on the Responsibility of the Republic of Croatia for Damage Caused by Members of the Croatian Army and Police During the Homeland War.419 According to the first Act, the Republic of Croatia was responsible only for compensation for damage resulting from death, bodily injury, or impairment to health (Art. 7); whereas all material damage caused by terrorist acts and public demonstrations were compensated for, throughout the entire territory of the Republic of Croatia, by the reconstruction of destroyed or damaged assets according to the provisions of the Reconstruction Act (Art. 8). The amount of compensation for damage caused to immovable property by members of the Croatian army and police forces during the Homeland War (from 17 August 1990 to 30 June 1996), included the pecuniary counter-value to which the aggrieved person was entitled pursuant to the provisions governing reconstruction (Art. 4 of the Act on the Liability of the Republic of Croatia for Damages Caused by Members of the Croatian Army and Police During the Homeland War).


The amendments of the AASSC of 2000 and 2002 introduced a new administration system, according to which competent state bodies were obliged ex officio to render corresponding decisions on the return of the occupied immovable property to their original owners’ possession. A significant step forward was the fact that the State

415 Official Gazette NN 24/96, 54/96, 87/96, 57/00. 416 The deadline for the submission of the application for reconstruction pursuant to Art. 69b. The AR was determined by the Croatian Government. It expired on 30 April 2004. Cf. Decision on the Final Deadline for the Submission of the Application for Reconstruction (Official Gazette NN 41/04). 417 In that regard see the Ombudsman Report for 2008, pp. 21, 22 (www.ombudsman.hr/Download/2009/03/31/Izvjesce o radu za 2008. godinu.pdf). 418 Official Gazette NN 117/03. 419 Official Gazette NN 117/03.

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Prosecution Office also became involved in the proceedings for return or eviction after the decision on temporary use had been annulled. Indeed, the initiation of eviction proceedings by the State Prosecution Office may in practice raise doubts connected with the procedural position of the owner whose immovable property is repossessed (e.g. does the owner have the status of an intervenient, how is enforcement going to be carried out, who is authorised to carry out the enforcement of eviction and the like).

The problems which continue to exist with regard to the return of temporarily transferred property to their original owners are primarily connected with lengthy and complex administrative and court proceedings. The proceedings are conducted in several phases, some in accordance with the Act on General Administrative Procedure (the annulment of the decision on temporary use) and others (if the temporary user does not move out voluntarily) in accordance with the provisions of litigation and enforcement proceedings (claim for eviction, enforcement of eviction). Thus, the decision on the annulment of the decision on temporary use is not considered as an enforcement document on the basis of which an owner would be authorised to immediately initiate enforcement proceedings for eviction. The issuance of such a decision is only a prerequisite for the successful conduct of enforcement proceedings for eviction. By the annulment of the decision on temporary use, the temporary user loses the right to possession, thus creating the possibility for the owner to exercise his/her right and claim repossession of the property. However, all these proceedings are very long and complex. Finally, it is important to mention that actual repossession is also conditioned upon prior provision of housing care and temporary accommodation for the temporary user. The failure to fulfil this precondition may be a reason for delayed enforcement, and it is sometimes postponed beyond a reasonable time. All these factors significantly minimise the efficiency of the protection enjoyed by owners at the legislative level.420

3.2.2. Restitution bodies

The competence for restitution was regulated differently in the act concerning the takeover, management and restitution of the “abandoned” property. The Temporary Takeover and Management of Property Act (1995) (TA) prescribed that temporary users acquired the right to temporary possession and use of such immovable property on the basis of the decisions of a special Commission. The composition of this commission was expressly determined (Art. 4, para. 3 TA).421 An appeal against its decision could be lodged to the Ministry of Justice within 8 days. The appeal though could not halt the enforcement of the commissions’ decisions (Art. 5, para. 2). In accordance with the Act on Termination of the Takeover Act (1998) the first instance proceedings were conducted by the housing commission and second instance proceedings by the municipal courts (Art. 2, para. 3). All competent bodies (including municipal courts) conducted the proceedings in accordance with the Act on General Administrative Procedure (Art. 2, para. 4). By amendments to the Act on Areas of Special State Concern (2000, 2002) a new system of return of the temporarily transferred property was thus established. In the amendments of the AASSC/2000 (Art. 24 of its consolidated version) it was expressly laid down that the immovable property given to other persons to be temporarily used had to be returned within 6 months following the owner’s application. Ownership had to be returned on the basis of a decision on the annulment of the previous decision on temporary use issued by the competent ministry. In the amendments of the AASSC/2002 it was expressly laid down that the competent ministry would annul all decisions on temporary use rendered on the basis of the AT which, prior to the entry into force of the Act on Amendments of the AASSC of 2002 (1 August 2002), had not been annulled by housing commissions.

420 See in this connection the Ombudsman Report for 2008, pp. 19, 20 (www.ombudsman.hr/Download/2009/03/31/ Izvjesce o radu za 2008. godinu.pdf). Cf. ECtHR, Appl. No. 22344/02, Kunić v. Croatia, judgement of 11 January 2007. 421 The Commission was composed of the representatives of municipal and town governments, distinguished citizens and preferably also representatives of competent ministries.

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3.2.3. Protection of the right to restitution as a human right

The protection of the right to restitution as a human right is specially based on the provisions in Art. 3, 48 and 50 of the Croatian Constitution. These provisions provide that the inviolability of ownership is one of the highest values of the constitutional order of the Republic of Croatia and the basis for interpretation of the Constitution. Art. 48, para. 1 of the Constitutions stipulates the guarantee of the right to ownership as one of the economic constitutional rights.


The problems in the resolution of private property issues following the regional conflict at both, the legislation and implementation level, mainly arise from the fact that these are very complex and delicate issues whose settlement requires a compromise between different constitutionally guaranteed rights, such as the right to free enjoyment of private property, the protection of the acquired rights, the right to compensation for limited ownership, the right to a home and a housing programme, social justice, rule of law, equality, and the like. The crucial problem is how to maintain the optimum balance between the protection of constitutionally guaranteed rights, on the one hand, and, on the other hand, the rights of different categories of persons who are entitled to exercise rights on the same property, but whose rights are derived from different legal sources.

These problems mostly emerge in proceedings where the return of temporarily taken property to its owners involves temporary users. In these cases the temporary users use other people’s immovable property on the basis of decisions on temporary use and they have not been provided with temporary accommodation within housing programmes. It is clear from the existing legislation that the right of original owners to request repossession may be exercised only when temporary users have been given at least some interim accommodation. Until their right to repossession is exercised, the owners are entitled to housing programmes pursuant to the provisions of the AASSC.422 The dynamics of repossession is thus determined by the dynamics of housing programmes for those who temporarily use them. It is mostly not determined by the existing legislation, but by national economic capacity. The ability to provide accommodation in houses and flats owned by the state, or by way of alternative housing care programmes in accordance with the valid legislation, includes the construction of new facilities sometimes even outside an area of special state concern (AASSC).

Housing programmes, among other things, also include leases of state owned family houses and flats, donations of state owned construction land, donations of state owned houses or flats, the construction of family houses or flats on state owned land as part of special programmes.423 424 Successful implementation of all these programmes requires prior organisation and the registration of ownership rights relating to houses, flats and plots in a land register for the benefit of the state. It is therefore necessary to intensify the process of reconstruction and constantly update land register entries in order to make easier the disposition of state owned flats, houses and building plots.

3.2.5. Situation of people – or legal claimants – who left and are not nationals

Croatian citizenship is not a precondition for the realisation of the right to reconstruction, the right to obtain the return of the occupied property and the right to be included in the housing program. Owners and co-owners of houses and protected tenants in flats are entitled to the right of reconstruction (Art. 4 Act on Reconstruction), as well as the owners of other destroyed or damaged assets who were citizens of the Republic of Croatia, as well as persons who resided 1991 in Croatia (the users of the right to 422 Cf. for example Art. 38 of the former AASSC. 423 Cf. for example Arts. 8, 9 AASSC/2008. 424 After 10 years of uninterrupted living in a family house or a flat owned by the State, the tenant acquires the right to purchase the house or the flat under the criteria specified in a decree issued by the Government of the Republic of Croatia (Art. 13 AASSC/2008).

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reconstruction). The rights set forth in AASSC/2008 entitle the persons who have their residence and who live in the ASSC as well the settlers in the ASSC (Art. 2). The AASSC/2008 expressly prescribes that the Republic of Croatia encourages the return and stay of the inhabitants who had lived in the ASSC before the regional conflict (Art. 7).

4. Financial consequences of restitutions/compensations The Republic of Croatia has up to date invested 38 billion Kunas of budget funds into programs for the return of refugees – the reconstruction of housing and infrastructure, the return of property, housing plans and refugee welfare. To date more than 145.000 houses and apartments valued at 16 billion Kunas have been reconstructed using budgetary funds.425

In the State budget for the year 2009 100.000.000 Kunas were dedicated to reconstruction and building of housing units damaged in the war; 500.000 Kunas for a housing programme for returnees outside of ASSC, 465.600.000 Kunas for a programme for the return of refugees and displaces persons, 4.000.000 Kunas for stimulating reconstruction of houses with level 1-3 damage.426

425 Taken from “Deputy PM Kosor at round table ‘The return of refugees and displaced persons – reconstruction as a condition of return’ ” www.vlada.hr/hr/naslovnica/priopcenja_za_javnost/2009/ozujak/potpredsjednica _vlade_kosor_na_okruglom_stolu_povratak_izbjeglih_i_raseljenih_obnova_kao_preduvjet_povratka/(back)/temu 426 Amendments of state budget of Republic of Croatia, Official Gazette, 86/09.

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Chapter 3 –KOSOVO

1. Overview of situation of properties to be subject of restitution 1.1. General situation and historical background Kosovo was one of the eight constituent units of the former Socialist Federal Republic of Yugoslavia (hereafter: SFRY).427 Under the 1974 Yugoslav Constitution it was declared an autonomous province of the Socialist Republic of Serbia, with its own administration, assembly and judiciary, and it was a member of both, Serbian and federal institutions. However, its autonomy was revoked on 23 March 1989 by the constitutional amendments adopted by the Yugoslav parliament in Belgrade, which rendered Kosovo an integral part of the Republic of Serbia.428 The Kosovo Albanian population (90% of a total of at that time estimated 1.7 million429) demonstrated against the loss of autonomy by organizing mass strikes. The Socialist Republic of Serbia reacted on 22 March 1990 by introducing a series of laws and administrative measures, known as “special measures”,430 which resulted in many Kosovo Albanians being dismissed from their positions in public companies and subsequently losing their property rights to socially owned apartments, which were reallocated to Kosovo Serbs or Croatian Serb refugees.431 The following years were characterised by a state of emergency (1989-1992), continued repression and a wide ethnic discrimination against the Albanian majority. In the end the situation developed into an ethnically motivated armed conflict/war between Albanians and Serbs in former FRY.

The armed conflict/war432 in Kosovo began in early 1998 and lasted until 10 June 1999, when Yugoslav forces began their withdrawal under the Military Technical Agreement433 and when UN SC Resolution 1244 (hereafter: SC Resolution 1244) establishing Kosovo as an international protectorate was adopted. After the war, Kosovo came under the interim administration of the United Nations Mission in Kosovo (UNMIK) most of whose roles were assumed by the European Union Rule of Law Mission in Kosovo (EULEX) in December 2008. On 17 February 2008, the Assembly of Kosovo declared Kosovo's independence, which to date has been recognised by 65 UN member states.434

427 The SFRY existed from the second half of World War II (1943) until it was formally dissolved in 1992. In 1992 the Federal Republic of Yugoslavia (FRY) was formed on the territory of the two remaining (non-secessionist) republics of Montenegro and Serbia (including the autonomous provinces of Vojvodina and Kosovo). On February 4, 2003, it was renamed “State Union of Serbia and Montenegro”, and the name "Yugoslavia" was abolished. On June 3 and June 5, 2006 respectively, Montenegro and Serbia declared independence, thereby ending the Yugoslav state. Kosovo declared independence in 2008. See en.wikipedia.org/wiki/Yugoslavia. 428 These amendments were adopted by the Kosovo provincial assembly, in a situation of threat and pressure with the presence of Yugoslav army tanks outside the parliament. See further Independent International Commission on Kosovo, The Kosovo Report, October 2000, www.reliefweb.int/library/documents/thekosovoreport.htm. 429 OSCE Mission in Kosovo, Kosovo/Kosova: As seen as told, p. 3. 430 The so-called “Programme for the Implementation of Peace, Freedom, Equality, Democracy and Prosperity of the Socialist Autonomous Province of Kosovo”, Official Gazette of Serbian Socialist Republic 15/90 of 30 March 1990. 431 Furthermore see Leckie, S., ‘Resolving Kosovo’s housing crisis: challenges for the UN Housing and Property Directorate’, pp. 12. See also OSCE, The Impending Property Crisis in Kosovo, p. 8. 432 The terms “armed conflict” or “war” are used in this chapter to describe two sequential and at times parallel armed conflicts in Kosovo: The 1998-1999 war between Yugoslav police forces, Yugoslav paramilitaries and the Kosovo Liberation Army and additionally the 1999 NATO bombing of the FRY between March 24 and June 10,1999 during which NATO attacked Yugoslav military. 433 Under the Military Technical Agreement signed on 9 June 1999 between the International Security Force (KFOR) and the Governments of the FRY and the Republic of Serbia, Yugoslav and Serb forces were to withdraw from Kosovo, www.nato.int/kosovo/docu/a990609a.htm. 434 See the Website of the Ministry of Foreign Affairs of Kosovo, www.ks-gov.net/MPJ/?page=2,33 (accessed in January 2010).

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The war in Kosovo had profound humanitarian consequences, amongst others a massive displacement of the population. During the armed conflict/war, out of a population estimated in 1998 1.7 - 2.2 million persons435, more than 850,000 Kosovo Albanians fled their homes or, as a result of a politics of “ethnic cleansing”, were deported and forcibly expelled by Serb security forces or paramilitary groups after the start of the NATO air campaign. Meanwhile, an estimated 500,000 persons have been internally displaced leaving their pre-war homes.436 Here internal displacements within Kosovo or from Kosovo to Serbia need to be distinguished from external displacements within the region and other countries. In Kosovo the war led also to large-scale property damage, with an estimated 300,000 homes damaged or destroyed and the abandonment of other hundred thousands.437

The post-conflict environment presented numerous challenges ranging from further population displacements or widespread damage and illegal occupation of properties to a large urban migration and illegal constructions.

The returns in post-conflict Kosovo began already in June 1999 after the adoption of SC Resolution 1244 when the Serbian security forces departed from Kosovo and international peacekeepers moved in. An estimated 750,000 Kosovo Albanians who had fled in March 1999 returned en masse within a few months. But meanwhile a further displacement of population took place. Large numbers of persons from other ethnic communities (mainly Kosovo Serbs and RAE438) in turn fled from the territory where their ethnic group represented a minority, in fear of reprisals by the Kosovo Albanian population. There are varying estimates on the numbers that fled, at least tens of thousands.439 Additionally, several thousand ethnic Albanians remained displaced after the armed conflict/war, mainly from the northern part of the city of Mitrovica, which became an enclave inhabited mainly by ethnic Serbs.

The properties abandoned by IDPs, if not destroyed440, were unlawfully and arbitrarily occupied by returnees, whose own homes had been damaged or destroyed during the armed conflict/war. Thereby an unauthorised “secondary occupation”441 of abandoned properties took place. Both, refugee returns and departure or forced eviction of minority communities overlapped with a post-conflict social phenomenon, in which a large part of the population migrated from the countryside into urban centres in search of homes, many of them lost during the war.442

435 Kosovo is characterised by a lack of accurate demographic data as a consequence of its turbulent history and the significant population changes that accompanied it. The last commonly accepted census in Kosovo took place in 1981, when the total population was estimated to be 1,584,000. A census was held in 1991; however, its results are considered to be unreliable due to the boycotting from the majority of the Kosovo Albanian community. The population of Kosovo has been variously estimated by the UN Secretary-General and the World Bank as numbering 1.7 and 2.2 million in 1998. This unclear demographic picture was complicated by the 1998-1999 conflict, which saw a massive movement of population both, during and after the hostilities. See further Stanfield D. et al., An Assessment of Property Rights in Kosovo: Final Report, USAID, 2004 and Report of the Secretary-General of the United Nations Interim Administration Mission in Kosovo, S/1999/779 of 12 July 1999. 436 Report of the Secretary General on the United Nations Interim Administration Mission in Kosovo of 12 July 1999, S/1999/779, p. 3; UNHCR, Global Report 1999 – Kosovo Emergency, p. 1. 437 USAID, An assessment of property rights in Kosovo, p. 4. 438 Roma, Ashkali and Egyptians minorities. 439 Over 230,000 Kosovo Serbs and RAE minorities fled to Serbia and Montenegro. UNHCR, Analysis of the Situation of Internally Displaced Persons from Kosovo in Serbia: Law and Practice, March 2007. 440 Homes in the countryside that belonged to minorities were destroyed. See further Tawil, E., Property Rights in Kosovo, International Centre for Transitional Justice, 2009, p. 25. 441 Secondary occupation of the abandoned homes by persons and families of rival ethnic groups typically takes place shortly after the flight of refugees and IDPs. It constitutes perhaps the most widely experienced obstacle to the right of returnees to return to their original homes. See Leckie, S., ‘Housing and property issues for refugees and internally displaced persons in the context of return’, Refugee Survey Quarterly, 3, 19, 2000, pp. 16. 442 This urban migration of tens of thousands of people took place very quickly; within two years after 1999 the population of some of the major towns of Kosovo (Pristina/Prishtine, Peje/Pec, Prizren, Gnjilane/Gjilan, Mitrovica/Mitrovice) had doubled and, in some cases, tripled.

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One thing not to forget here is that the situation of housing stock had already been complicated due to the pre-1999 period of ethnic discrimination. The discriminatory legislation introduced by the Serbian Government during the 1990s, as mentioned above, resulted in forced evictions from homes and unlawful restrictions on the enjoyment of property rights of Kosovo Albanians. A legal prohibition on interethnic property transfers443 led to many informal property transactions. Those informal transfers were never verified by a court nor ever recorded in the cadastre. In addition the destruction of documents, removal of cadastral plans and record books from Kosovo and their relocation in Serbia proper took place at the end of the armed conflict/war in June 1999.444

Additionally, the phenomenon of illegal construction, which had exploded due to the absence of effectively functioning municipal bodies and law enforcement, exacerbated the situation. As a result of an institutional vacuum, neither the judiciary nor the administrative bodies had the capacity to address housing and property disputes and to bring law and order into the property rights arena.

Subsequently, the March 2004 violent incidents led once again to a forced displacement of members of minority communities in Kosovo. As a result of these events nearly 2,400 people remained displaced; the total number of homes, apartments and public buildings damaged or destroyed were estimated at 935.445

The return of displaced persons in Kosovo representing members of ethnic minorities in a certain territory (Kosovo Serbs, RAE and Albanian in a minority situation) has remained a matter of major concern and is also the subject of this study. Thousands of individuals have remained displaced within and outside of Kosovo and have not, for various reasons, chosen to return to their homes and to recover their possessions.446 Notwithstanding that the costs estimates of return projects in Kosovo are amongst the highest worldwide447, they have had little impact on returns. The return process itself has been badly managed. Kosovo had no database to implement and monitor the return process at least until July 2009, which created confusion and uncertainty.448 The figures on the number of returns or those who still remain displaced (mainly with regard to the Serbian ethnic community) available from different sources, including official ones, differ, are inaccurate and highly disputable (see Section 4.2.).449 The inaccuracies might stem from the fact that an undetermined number of displaced persons who have returned to Kosovo, including those who left during the NATO bombings but returned immediately after, never de-registered.

443 Arts. 32a-32c of the Law on Transfer of Immovable Property, Official Gazettes of the Socialist Autonomous Province of Kosovo 45/1981 and 29/1986, provided that “[t]he transfer of real estate by citizens and civil legal persons who have the right to the property is prohibited, if the transfer of real estate is between citizens of different nations from the territory of the Socialist Autonomous Province of Kosovo.” As a consequence, no property transaction was permitted, if it changed the ethnic composition of the population or prompted members of a particular community to leave the territory. See also Tawil, E., op.cit., p. 10. 444 More on this issue OSCE, Property rights in Kosovo 2002-2003, pp. 8. 445 See UNSG S/2004/613, p. 16. 446 There are some 20,000 internally displaced persons in Kosovo, 206,000 inhabitants of Kosovo displaced in Serbia, and some 16,000 in Montenegro. EU Progress Report on Kosovo, 2008. Sources of the Co-ordination Centre for Kosovo and Metohjia list up to 242,381 persons belonging to Kosovo Serb and Kosovo RAE communities who are displaced within and outside Kosovo. See www.kc.gov.yu/D-ENGLISH/dokumenti-eng/program-povratka-eng.html (accessed on 31 January 2007). The NGO European Stability Initiative (ESI) considers that two thirds of the pre-war Kosovo Serb population remain in Kosovo and estimates the displacement figures outside Kosovo to be 65,000 and the figures of Kosovo Serbs living in Kosovo to be 130,000. 447 OSCE report, Eight years after – Minority returns and housing and property restitution in Kosovo, p. 18. 448 Recently, a database has been created and the Ministry is now better able to manage return requests. See Internal Displacement Monitoring Centre (IDMC), Kosovo Ministry

of Communities and Return lacks efficiency and capacity (2009), www.nrc.ch/idmc/website/countries.nsf/(httpEnvelopes)/ F2763CA9532340CFC125765F00477544?OpenDocument. 449 Estimates range from 65,000 to 250,000 persons. See ESI report, The Lausanne Principle – Multiethnicity, Territory and the Future of Kosovo’s Serbs, 2004, pp. 19. See also www.kosovotimes.net/ kosovo-chronicle/576-manipulated-statistics-on-the-number-of-displaced-serbs-from-kosovo.html (accessed in January 2010).

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http://www.nrc.ch/idmc/website/countries.nsf/(httpEnvelopes)/%20F2763CA9532340CFC125765F00477544?OpenDocument

http://www.nrc.ch/idmc/website/countries.nsf/(httpEnvelopes)/%20F2763CA9532340CFC125765F00477544?OpenDocument

http://www.kosovotimes.net/%20kosovo-chronicle/576-manipulated-statistics-on-the-number-of-displaced-serbs-from-kosovo.html

http://www.kosovotimes.net/%20kosovo-chronicle/576-manipulated-statistics-on-the-number-of-displaced-serbs-from-kosovo.html


Therefore, much lower numbers than those registered as IDPs outside Kosovo are truly IDPs.450

1.2. Kinds of properties The restitution/compensation process following the regional conflict in Kosovo dealt only (at least until now) with immovable properties and property rights related to them (in terms of occupancy rights) affected by the conflict as well as with discriminatory laws during the Milošević regime. Initially, the process was focused on the restitution/compensation of residential property (private, state and socially-owned) and on the property associated with it.451 The loss of possession of residential property was seen initially as the only obstacle to return. The decision to define the types of claims as only residential excluded the possibility of claiming for agricultural and commercial properties that had been also unlawfully occupied (with the exception of those cases in which such immovable property was associated with a claimed residential property). The importance that the occupancy of land and shops would have had for the return process and its economic sustainability was initially not understood. Only later, in 2006, the private agricultural and commercial property became subject of the restitution/compensation.452

1.3. Denationalisation vs. displacement/occupation of abandoned properties in the regional conflict In Kosovo the process of denationalisation/restitution of private property expropriated, confiscated, nationalised or socialised during the time the province was part of the SFRY, has still not begun. Other events, such as the armed conflict/war in the context of the disaggregation of the SFRY, have prevented such a process to take place.

The restitution process should resolve, as has been the case in transition countries of Eastern Europe, the issue of restitution/compensation for those people, who previously, i.e. after the Second World War, owned a property and were expropriated without compensation because of having been classified as state or other political enemies. In many cases it is doubtful, whether due process was respected. Later, the socialist government nationalised agricultural land that exceeded the legally permissible size for private ownership. This property became state or social453 property. All these cases would require restitution or financial compensation to the previous owners. The post-communist restitution process should not be skipped, since it would resolve the uncertainty surrounding these properties and would make easier the process of the privatisation of state or socially owned assets, which already has begun in Kosovo.

During the regional conflict and thereafter property and the real rights related to it were again subject to withdrawals, destruction or illegal occupation, changing thus repeatedly the property right holders. The property books/records, if not destroyed during the war, were removed from Kosovo and brought to Serbia proper (see below Section 1.5) remaining outdated, thus resulting unreliable. Bearing in mind this historical impact, it is very complicated to determine property rights and to tackle the eligible property owners in Kosovo.

450 UNHCR, Critical Appraisal of Response Mechanisms Operating in Kosovo for Minority Returns, Pristina, February 2004, p. 14. 451According to UNMIK Regulation 2000/60, Section 1, “associated property” means land and buildings owned or used by the claimant, which form a unit with a residential property. 452 UNMIK Regulations 2006/10, 2006/50. 453Social property was meant as a legal category of its own, different from private and state property. The SFRY Constitution of 1974 introduced the concept of social ownership as a unique concept, which can be found only in former Yugoslavia. Theoretically, it means that property is owned “by no one and by everyone” or simply that society as a whole is the vested the ownership right and natural persons and legal entities are only the users. Social property, a left-over of the Yugoslav socialist system, is still manifest in Kosovo in Art. 159 Constitution of the Republic of Kosovo. Also, UNMIK Regulation 1999/24 on the Applicable Law in Kosovo allows the ghost of social immovable property to exist further, since it restores the pre-1989 legal regime.

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The property related legislation adopted immediately after the war did not regulate inter alia the problematic of restitution of previously expropriated private property owners. Certainly Kosovo came out from a war and at the time other issues had priority. However the legislation enacted by UNMIK in relation with property issues following the regional conflict i.e. temporary administration of abandoned residential properties or restitution/compensation of private properties, such as residential and agricultural or commercial properties, tried to not interfere and aimed, by resolving property claims, to restore the status quo to what it had been before the armed conflict/war.454 That means that there was given no ownership rights for those properties resulting state or socially owned properties.

1.3.1. Socially-owned apartments and occupancy rights

Socially owned apartments are a unique category of property in Kosovo inherited from the former SFRY. Therefore, rights relating to them have some unique characteristics.

These apartments, which constituted up to the early 1990s the primary source of residential housing, were built by Socially Owned Enterprises (hereinafter: SOEs) and were allocated to their employees in order to meet their housing needs. Employees were given a sui generis right of use over these apartments, known as “occupancy right”, which was a statutory right that derived from the Yugoslav Law on Housing Relations.455 A socially owned apartment was given only for use as a primary residence. An occupancy right was less than an ownership right, but considerably more than a leasehold right. Occupancy rights could only be terminated, where the occupancy right holder failed to use the apartment for his/her housing needs for a continuous period of six months or more.456 The occupancy right holder could not sell or sub-let the apartment, but the unit could be inherited in case of death.

During the early 1990s after the abolition of Kosovo’s autonomy, thousands of Kosovo Albanians had lost their rights to socially owned apartments due to discriminatory practices (see above Section 1.1.). These apartments had been allocated in most cases to Serb employees. Subsequently, with enactment of the Law on Housing by the Serbian parliament in 1992, the privatisation of these apartments was introduced, which allowed actual occupancy right holders to purchase them by converting their occupancy rights into fully transferable property rights. A part of the privatised apartments were subsequently sold to third parties, an issue which the restitution/compensation process following the armed conflict/war had to take into account.457 After the 1999 armed conflict/war and after abandonment of many of these apartments by displaced Kosovo Serbs, the original Albanians occupancy right holders saw the opportunity to re-take possession over them. During the privatisation of the SOEs, which owned these apartments, until 1999 other discriminatory practices or mismanagement occurred.458

The legislation enacted by UNMIK after the armed conflict/war dealt inter alia with the occupancy rights over socially owned apartments. Regulation 2000/60 provided that apartments which might be subject to restitution claims cannot be disposed of until the

454 Section 2.1 and 2.3 of UNMIK Regulation 2000/60. 455 Official Gazette of SAP Kosovo, No. 11/83, 29/86 and 42/86. 456 Pursuant to the Law on Housing Relations such termination could take place upon dismissal from work due to a serious violation of duty or a criminal act. On completing 10 years of employment with the enterprise or 20 years in total, the occupancy right could not be revoked under any circumstances. No one could have more than one occupancy right or another residence, while being an occupancy right holder. 457 See Section 3.3 and 4 of UNMIK Regulation 2000/60. 458 In some cases, SOEs were privatised without the apartments, resulting in a legal limbo for possessors who wanted to purchase the socially owned apartment they occupied. The inadequate privatisation mechanism of socially owned apartments left a lot of discretion to SOE directors, a situation which opened the door to corruption and unreliable deals. For example, some Kosovo Albanians who occupied socially owned apartments were late in buying them, because they naively believed the reassuring promises they had received from company directors or the directorate of property rights that they had nothing to worry about, because they were on a purchase list according to the terms of the law, only to discover later that the SOE was privatised and their apartments ‘sold’ to other employees. Once the armed conflict broke out, sales were halted and employees who were either involved in contesting privatisation decisions or initiating a privatisation transaction under the law saw the process interrupted.

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legal status of the apartment is determined. Further, the Regulation determined that occupancy right holders, whose right had been cancelled due to discriminatory legislation, were entitled to restitution in kind or monetary compensation, subject, among other things, to whether the apartment had been purchased in good faith after the loss of this right.459

In 2009 the Kosovo Assembly in order to regulate the privatisation of socially owned apartments and the termination of occupancy rights amended the draft Law on Sales of Apartments where Tenure Rights exist.460 The draft law contains provisions that regulate the conditions and means for the sale of apartments where tenure rights exist, together with fittings and parts of the building as well as the manner of defining the apartment’s cost and the termination of tenure rights.461


Under the socialist regime in Kosovo construction land was regarded as socially owned and only user rights were permitted. The Law on Basic Property Relations supported the principle of social ownership by allowing people to own objects (buildings or houses), but granted only user rights to the land. The concept was further reinforced by the fact that the rights to the land were granted only as long as the rights attached to the object. Thus, the possession of urban construction land was less than full ownership, because the right to transfer all or part of the land only existed, if the object was transferred as well and the rights to use and enjoy the land could be lost, if the object ceased to exist.

The construction land in Kosovo remains mainly a state/socially owned property, since no denationalisation legislation has been enacted. The socialist Law on Construction Land is still applicable, since there is no new legislation to supersede it. According to this law462, the municipalities have the right to dispose of the right of use over construction land. After the armed conflict/war many sources indicated that municipalities not only discouraged, but, at times, actively prevented minority returnees from reconstructing their homes or other vulnerable persons from accessing their property through selective or inappropriate regulation of construction and land use.463 Administrative corruption practices accompanied the release of socially owned lands to private interests.

A very problematic issue is the phenomenon of illegal constructions, as many construction companies arbitrarily occupy land (either socially owned or private pertaining to displaced persons) for construction purposes. In some instances the properties of displaced persons have been replaced with new buildings, usually for commercial purposes. The destruction of properties of displaced persons in this manner means they have nowhere to return to.

459 Ibid. Where a claimant was found to be entitled to restitution, s/he would be awarded restitution in kind, unless the ownership of the property had been acquired by a person through a valid voluntary transfer for value, before the date the regulation entered into force. Further, Section 4 provided for an exception to Section 3.3, in relation to socially owned apartments, which, after the cancellation of the occupancy right, were bought from the allocation right holder by the current owner under the Law on Housing. This was done by conferring the right to purchase the full ownership right on the successful claimant with the occupancy right. 460 This draft law was approved already in July 2007 by the Kosovo Assembly. It recognised the tenure right on socially owned properties, as defined in the former Yugoslavia, as a possession right. However, the draft law ignored the decisions of the HPCC. Its vague provisions created the risk of contradictory interpretations and subsequent injustices, in particular against Kosovo Serbs and Roma. Due to criticism received from the international community, in order to prevent unlawful dispossessions, it became subject to further amendments. 461 Before the conflict, approximately 70% of occupancy right holders could privatise their apartments, while the rest could not purchase their apartments due to different reasons, one of them being the discriminatory practices of job dismissals. See Expose of Minister before the Kosovo Assembly. 462 Kosovo Law on Construction Land, Arts. 38, 39, Official Gazette of Kosovo 44/76. 463 U4-Anticorruption Resource Centre, Corruption in land administration/land management in Kosovo, p. 13.

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1.4. Specific problems related to the land register/cadastre The property registration system in Kosovo had been influenced by various legal systems. Originally, the Ottoman tapia system (title deeds system) applied. This system identified the owner and delineated the property through describing boundaries and neighbours. The legal title was established by deeds issued by a court to the individual titleholder. A central title register did not exist at that time. At the late 1920s the Yugoslav authorities reformed the property rights register by introducing a uniform land cadastre. The regime was based on the Austro-Hungarian legal traditions, but had been applied only in the northern parts of Yugoslavia. This system was never de facto introduced in Kosovo.464 In 1929 the Tapia Law was enacted and in 1931 amended. New laws passed between 1992 and 1996 introduced the radical change of transforming the land cadastre into a real property cadastre. However, these changes were never implemented because of lack of funding or qualified professionals.465

Instead, the tapia system remained as the only property registration system in Kosovo. To obtain an official tapi, firstly it is necessary to obtain a certificate of possession, which is issued by the Communal Directorate of Geodesy. Then the ownership is to be established through the Commune Council and to be publicised for 1 to 2 months to elicit any conflicting claims. Finally, the court will issue the tapi and a copy is sent to the Cadastre Office.466 As a consequence, property transactions verified by courts enter in the possession lists of the land cadastre.467

For several reasons the registration procedure in the land cadastre during the pre-war regime was often not updated, incomplete and largely inaccurate. On the one hand the establishment of the socialist system and socially owned property neglected the importance of private property and property registers, which as a consequence, were not systematically updated and administered without adequate attention.468 On the other hand the discriminatory legislation enacted between 1989 and 1999, made property transactions between and to Kosovo Albanians illegal. The result was that such transactions were done informally and were not registered either with the courts or in the cadastres. Other reasons were the introduction of prohibitive fees for property registration469, lack of awareness to the importance of property records, as well as gaps in the legal framework. In line with that, the legal framework did not adequately provide for the registering of the transfer of all property rights, i.e. the relevant law did not require that transfers of rights of use for socially owned apartments be recorded in a public registry. Contracts are approved and archived at the courts, but a separate register of buildings and apartments does not currently exist. Furthermore, records regarding agricultural use areas are outdated.

During the war the situation was further worsened by the destruction of property records and their removal by Serbian authorities during their withdrawal from Kosovo. Since that time, the cadastre itself was removed to Kruševac, Serbia and has not been updated. 464 Due to the different Ottoman legal heritage and the minor importance of private property rights in socialist Yugoslavia. 465 These laws were revoked by UNMIK in December 1999, UNMIK Regulation 1999/24. 466 The cadastre offices assumed the function of the property register in Kosovo. 467 As no property register is available, the Land Cadastre, which is managed by the Municipality Cadastral Offices (MCOs), has a central role to prove ownership. The cadastre contains lists of users of the different parcels, so-called possession lists, and this mainly for taxation purposes. These lists were also used before the courts as a proof to confirm ownership rights. But only the users (possessors) are registered in the Land Cadastre. A possessor may thus be a person who has both ownership right and possession right over a real property or only possession right. In spite of that the possessor is not necessarily the owner of the land he is mostly regarded as owner in real property transactions. The equal positioning of possessor and owner is a consequence of the Law on Basic Property Relations of 1980. 468 Legal concepts have also been complicated. In strictly legal terms, people under the Yugoslav legal system did not own land; they possessed it. The Law on Basic Property Relations of 1980 was drafted when the government wished to limit the amount and scope of private ownership. That law allowed people in urban areas to own objects (i.e. buildings or houses) but granted only user rights to the land occupied. 469 The Kosovo minorities of Roma, Ashkalies and Egyptians were particularly often affected by the lacunarity of property records, whereby the reasons are to be found in the lack of awareness and in very high registration fees.

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These records remain still displaced and according to different sources since 1999 have been actively used within the Republic of Serbia administrative and judicial structures, pretending to be Kosovo authorities.470 Thus, it was not merely that records were missing from Kosovo, but they were actively being changed outside Kosovo’s jurisdiction. Therefore, the registry’s integrity, already questionable in 1999, continues to deteriorate until the records are not harmonised. At the municipal level, cadastre records were partly removed by Serbian authorities. Due to that, notable is that most municipalities are missing records from substantial time periods, for specific ethnic groups, and for specific types of property.471

After the end of the war, the reconstruction of the cadastre started472, with the help provided by the Kosovo Cadastre Support Programme, funded by donor countries, such as Switzerland, Norway and Sweden, and with the support by UNMIK and UN-HABITAT. The programme comprised the establishment of the Kosovo Cadastre Agency (hereafter: KCA) as the coordinator for all cadastral issues, as well as the implementation of a comprehensive reform of property and land registry. The KCA has been formally established as a government body by virtue of UNMIK Administrative Direction 2000/14.

With regard to the legislative framework, the Kosovo Assembly adopted on 17 October 2002 the Law No. 2002/5 on the Establishment of an Immovable Property Rights Register, which was promulgated by UNMIK Regulation 2002/22. This Law establishes the Immovable Property Rights Registry as a mechanism that recognises and enforces the validity of the rights to immovable property in Kosovo on the basis of the applicable law. Further, Law No. 2003/25 on the Cadastre was adopted and promulgated by UNMIK Regulation 2004/4. This law established the cadastre as the official register to make the census of land, parcels, buildings and parts of buildings and underground premises in Kosovo.

The absence of reliable property records has affected negatively the restitution/compensation process and has made it very difficult for returning of displaced persons (owners or occupancy right holders) to prove their entitlements. Under such circumstances ownership certificates taken from property registers were not always authentic and might not contain updated information. These certificates are necessary to initiate court or administrative proceedings in Kosovo. On the other hand a functioning property register and cadastre is indispensable for the implementation of court or HPD/HPCC decisions. The fact that Kosovo authorities do not recognise official documents (cadastral records, judgements, contracts, etc.) issued or verified by Serbian administrative bodies or courts (at the same time, the Serbian authorities do not recognise documents issued by the authorities in Kosovo, either during the period of external tutelage under the PISG or post-independence) poses a severe challenge to IDPs. Many of these persons rely on the relevant local or international institution to help them maintain their property rights, or gradually abandon all hope of recovering their property.

1.5. Estimation of financial value No officially estimation has been made with regard to the current financial value of the targeted properties subject to restitution/compensation in Kosovo. The total number of property (only residential) claimed at the HPD amounted to 29,160.473 KPA statistics show that altogether 40,695 (residential, commercial and agricultural) properties have

470 See U4-Anticorruption Resource Centre, op.cit., p. 4. 471 Due to the removal of records to Serbia proper, the MCO in Mitrovicë/Mitrovica only has records from 1955 to 1975 and then from 1986 to 1989. For Shtime/Štimlje, original cadastral records are available only up to 1985. The MCO in Suharekë/Suva Reka has original records only from the period prior to 1959. After the conflict, more than 70% of the Prizren records were removed to Serbia proper. At present the Gjilan/Gnjilane MCO records are complete only up to 1958, while the MCO in Viti/Vitina is working on the basis of data from before 1988. See also Hassine, K., Housing and Property Directorate in Kosovo, p. 77. 472 At the end of 2002 approximately 75% of the cadastre records had been restored. 473 OSCE Report, Eight years after. Minority returns and housing and property restitution in Kosovo, 2007, p. 25.

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Private properties issues following the regional conflict in Bosnia and Herzegovina, Croatia and Kosovo

__________________________________________________________________________

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been claimed (see Figure 1). However statistics regarding the size (m2) of the entire targeted property are lacking. Moreover the legislator has adopted (at least until now) no methodology for the evaluation of the market value (prices/m2) of the immovable property with relevance to different regions in Kosovo. Some statistics with regard to estimated prices of real estates/apartments available in the Country of Return Information Project of the European Commission for Kosovo (see Figure 2) are not of any help (even if a deductive approach is adopted) in estimating the financial value of the targeted properties, since other important data, as described above, is lacking.

Region/ property Type

Gjilan/

Gnjilane

Mitrovicë/

Mitrovica Peja/Pec

Prishtinë/

Pristina Prizren Total % of

Claims

Residential 564 335 1166 763 492 3320 8.2

Commercial with buildings

113 132 275 351 105 976 2.4

Commercial without buildings

8181 3915 12609 5871 5823 36399 89.4

Total 8858 4382 14050 6985 6420 40695 100

% of Claims 21.8 10.8 34.5 17.2 15.8 100 100

Figure 1. www.kpa.online.org

City Price EUR/m2

Prishtinë/Pristina 800 – 1,500

Prizren 600 – 800

Pejë/Pec 500 – 700

Mitrovicë/Mitrovica 500 – 600

Gjakovë/Dakovica 500 – 600

Figure 2. http://www.cri-project.eu/



In the period before independence, reference to international agreements could be found in SC Resolution 1244 of 1999 (which is still applicable, because it has not been superseded by another SC resolution) and the Constitutional Framework for Provisional Self-Government of 2001.

SC Resolution 1244 in its Para. 11(j) provides that protecting and promoting human rights is one of the main responsibilities of the UNMIK presence in Kosovo. Accordingly, UNMIK Regulation 1999/24474 on the Law Applicable in Kosovo that amended UNMIK Regulation 1999/1 established that the domestic law is applicable insofar as it complies with international human rights standards and made specific international human rights instruments directly applicable by all persons undertaking public duties or holding public offices in Kosovo.475

In addition, the Constitutional Framework for Provisional Self-Government provides for a guarantee and observation of internationally recognised human rights standards set forth in several international agreements476, and make these latter part of it and therefore directly applicable in Kosovo.

The Settlement Proposal (Ahtisaari Plan) of 2007 also provided that Kosovo was to recognise, protect, and enforce the rights of persons to private movable and immovable property located in Kosovo in accordance with established international norms and standards.477

Moreover, after Kosovo’s independence, the new Constitution of the Republic of Kosovo makes in its Art. 22 an exhaustive list of international agreements directly applicable in Kosovo and provides that they override the domestic laws in the case of conflict.

However, not all these international agreements deal with property issues. In the following, some very important standards comprised in these agreements and particularly relevant for the work of the institutions dealing with restitution/compensation of private properties following the armed conflict/war in Kosovo (mainly HPD/HPCC and later KPA/KPCC), will be analysed:

1) Right to peaceful enjoyment of possessions according to Art. 1 Protocol 1 ECHR

One of the obligations undertaken by the restitution/compensation process after the armed conflict/war in Kosovo was to protect the enjoyment of these rights from the infringement by other private persons and to ensure redress for past violations of the right to peaceful enjoyment of possessions. It is also true that the restitution process, by awarding such rights, imposed at the same time limitations on the enjoyment of possession by legitimate owners. To what extent this was the case see Section 3.1.2.2.

474 Amended by UNMIK Regulation 2000/59. 475 Section 1.3 of UNMIK Regulation 1999/24 specifies the following international agreements: UDHR; ECHR and its Protocols; ICCPR and its Protocols; ICESCR; CERD; CEDAW; Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (CAT); and the International Convention on the Rights of the Child (CRC). 476 Section 3.2 of the Constitutional Framework for Provisional Self-Government lists the same agreements as SC Resolution 1244 as well as the European Charter for Regional or Minority Languages and the Council of Europe's Framework Convention for the Protection of National Minorities, though not the ICESCR. 477 Art. 8, para. 6 of the Comprehensive Proposal for the Kosovo Status Settlement. Art. 2.1 of Annex 1 lists in addition to those international agreements mentioned in SC Resolution 1244, as part of the forthcoming Constitution of the Republic of Kosovo, the Council of Europe Framework Convention for the Protection of National Minorities, though not the ICESCR.

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2) Right to an effective remedy according to Art. 13 ECHR

One of the main principles guiding the activity of HPD/HPCC and later KPA/KPCC was to provide an effective remedial procedure allowing the claimants to have housing and property disputes adjudicated in an independent manner. To what extent the right of an effective remedy is taken account of and implemented in cases of human rights violations committed by UNMIK’s institutions themselves (comprising HPD/HPCC and later KPA/KPCC) is an issue, which has been subject to a lot of discussion, since it seems that such remedies are still not accessible (see Section 3.2.3.)

3) Right to a due process according to Art. 6 ECHR

Art. 6 ECHR provides that citizens are entitled to a due process in the determination of their civil rights and obligations. The ECtHR has determined through its jurisprudence478 that the resolution of property disputes falls under this category. This requires that the claims proceedings before the HPD/HPCC and later KPA/KPCC should comply with due process requirements, such as the right to access to a court, equality of arms, length of proceedings, etc. All these requirements seem to be introduced in claims proceedings in Kosovo. However, it is difficult to evaluate a strict implementation of such requirements in a post-conflict situation, like Kosovo, where a mass claim process was undertaken to resolve thousands of pending property claims.

4) Right to adequate housing according to Art. 11 ICESCR

It is impossible to assess the fulfilment of property rights (residential and non-residential) in Kosovo without considering housing rights. After all, this group of rights was one of the most affected by the armed conflict/war.

The right to adequate housing has two aspects. On the one hand, it imposes an obligation on the state to develop policies for the progressive realisation of this right. On the other hand, it requires from the state to refrain from actions that might render people homeless. These obligations set forward by the ICESCR are manifested in the mandate of the HPD/HPCC and later KPA/KPCC, which provides for the institution to be a key tool in developing housing and property policies in Kosovo.

2.1.2. The role the of the European Court of Human Rights

The question to be raised is whether Kosovo citizens, whose property rights have been violated, have the right to take cases to the ECtHR and against whom.

Kosovo declared independence on 17 February 2008.479 Despite the fact that the ECHR, as part of international human rights standards, is directly applicable in Kosovo (see Section 2.1.1.), this latter has not ratified the Convention. Parties to the ECHR are only member states of the Council of Europe.480 Since Kosovo is no member state of Council of Europe, it is not eligible to ratify the ECHR. The ECtHR adjudicates only the violations of the ECHR committed by the state parties, thus Kosovo cannot be a respondent party in the judgements of Court. Before independence, UNMIK and KFOR were the entities exercising effective jurisdiction over Kosovo, but they enjoy immunity and are not party to the ECHR either. Therefore, even against them no cases can be brought to the ECtHR.

478 ECtHR, Appl. No. 51354/99, Karagiannis and others v. Greece, judgement of 16 January 2003; ECtHR, Appl. No. 51356/99, Nastou v. Greece, judgement of 16 January 2003, as well as ECtHR, Appl. No. 33627/96, Baragan v. Romania, judgement of 1 October 2002. 479 At the request of the UN General Assembly, the International Court of Justice (ICJ) is preparing an advisory opinion on whether Kosovo's declaration of independence is in accordance with international law. The ICJ held public hearings from 1 to 11 December 2009. Delegations from Belgrade and Pristina addressed the Court on 1 December. In addition, representatives of 27 States, including all five permanent members of the Security Council, participated in the oral proceedings. The Court's opinion is expected in 2010. 480 Section 9 of Resolution 1031(1994) of the parliamentary Assembly of Council of Europe provides that accession to the Council of Europe must go together with becoming a party to the ECHR. It therefore considers that the ratification procedure should normally be completed within one year after accession to the Statute and signature of the Convention.

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In the last instance, citizens of Kosovo, after having exhausted all legal remedies provided by law, can refer violations by public authorities of their individual rights and freedoms to the recently established Constitutional Court of Kosovo.481

Since the ECtHR cannot decide over human rights violations in Kosovo, its role is to be identified in the light of interpretation and the influence of its jurisprudence on the practice of the Constitutional Court. Accordingly, the Constitution of the Republic of Kosovo explicitly provides that human rights and fundamental freedoms guaranteed by the Constitution shall be interpreted consistent with the decisions of the ECtHR.482 Taking into account that the Constitutional Court in Kosovo became functional only in summer 2009, its jurisprudence and practice are limited to only seven decisions, whose subject matters are outside the scope of this research (as of January 2010).

2.2. The role played by international organisations The role of the international community in Kosovo has been described as a “high-water mark”483, referring to the breadth of responsibilities assumed by various international actors. These range from the creation of a local governance to infrastructural concerns to human rights promotion (including property rights) and democracy building and last but not least the commitments to assure the safe and unimpeded return of all refugees and displaced persons to their homes.484 The leading role on the realisation of all these commitments pertained to UNMIK, which was established by the SC Resolution 1244 and governed Kosovo with an interim administration since June 1999 until independence, though an increasing transfer of powers to local institutions took place. Among the above mentioned functions, UNMIK was mandated to monitor and have an oversight of the operational issues in the returns process and to intervene where necessary to ensure effective implementation of returns policy and practices. The issue of housing and property rights, due to their critical state. was high on the agenda from the beginning of the international community’s involvement in Kosovo. UNMIK involved in late 1999 the UN Human Settlements Programme (UN-HABITAT) to coordinate the housing and property restitution process in the aftermath of the war, as an interim measure until local mechanisms were created to take over this function. Then the HPD/HPCC (later the KPA/KPCC) were established as institutions under the umbrella of UNMIK, to play a major role in the mission’s efforts to address property right issues.

A crucial role in matters of return of refugees and internal displaced persons has been played by the United Nations High Commissioner for Refugees (UNHCR). Art. 7 of Annex 2 of SC Resolution 1244 provides for a safe and free return of all refugees and displaced persons conducted under the supervision of UNHCR. Furthermore, the proposal of the United Nations Office of the Special Envoy to Kosovo (UNOSEK) for a status settlement in Kosovo gives the UNHCR the lead role in assisting the competent authorities in extending protection and assistance to returnees, as well as in reporting publicly on these issues.485 In this regard, UNHCR signed a Memorandum of Understanding with the Government of Kosovo for the implementation of a capacity building and monitoring programme on returns and reintegration, including the creation of an internal protection capacity at the municipal level. Moreover, the responsibilities of UNHCR include the protection of refugees and the finding of durable solutions to their situations, the prevention and reduction of statelessness as well as the creation of conditions conducive to returns. UNHCR has been one of the principals of the Steering Group, Central Review Mechanism and Municipal Working Groups and provides, through implementing partners, legal assistance to refugees, returnees, IDPs, and minorities at risk on various legal issues, including property related matters and unresolved property claims. The office has transferred some components of the Lead Agency Programme dealing with returns to the relevant Kosovo authorities and civil society actors. Recently,

481 Art. 113, para. 7 Constitution of Republic of Kosovo. 482 Art. 53 Constitution of Republic of Kosovo. 483 Perritt Jr., H.H, ‘Final Status for Kosovo’, Chicago-Kent Law Review, 3, 80, 2005, p. 4. 484 Art. 11(k) of SC Resolution 1244. 485 Art. 4, para. 3 of UNOSEK Comprehensive Proposal for a Status Settlement in Kosovo.

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the office has started the development of a new comprehensive return strategy and was involved in the revision of the Manual for Sustainable Return. These actions are expected to reverse the declining trend in returns.

As UNMIK’s institution-building pillar, the Organisation for Security and Co-operation in Europe (OSCE) plays a key role in creating an environment in which sustainable returns can occur. The OSCE Mission in Kosovo was established on 1 July 1999 and represents the largest international civilian presence charged with institution- and democracy-building, the promotion of human rights and the rule of law. A key issue under the responsibilities of the OSCE is property rights, since failure to comply with their regulation impedes the return process. Hence, the Mission works with the Kosovo government, at both, central and municipal levels, to enhance their policies and to promote and strengthen compliance with housing and other relevant laws and regulations. It also closely co-operates with the Kosovo Property Agency.

The new realities in Kosovo, i.e. the proclamation of independence and the promulgation of the new Constitution, changed fundamentally UNMIK’s tasks.486 Its reconfiguration included the transfer of its competences to the Kosovo government and, especially in the area of the rule of law, to the EULEX as well as the reduction of its personnel. EULEX assumed its full operational capability on 6 April 2009, following successful deployment throughout Kosovo on 9 December 2008. As the largest civilian mission ever launched under the European Security and Defence Policy, the central aim of EULEX is to assist and support the Kosovo authorities in the area of the rule of law, specifically in the police, judiciary and customs, whilst retaining a number of limited executive powers.487 EULEX judges started to handle civil law trials, dealing with intra-ethnic and inter-ethnic property disputes. In several first-instance decisions of this kind, EULEX judges found that alleged sales of the property of displaced persons were not proven and confirmed the claims of the original owners.488

The involvement of the international community was surely indispensable in post-conflict Kosovo. It played and continues to play an undeniable role not only with regard to rebuilding and administering, but also to crucial matters, such as the restitution and returns process. But on the other side the multiplicity of international and also local actors, who often lacked proper co-operation and acted in disunity or competed with each other, has plagued this process right from the start. The lack of co-operation between international actors is actually evident and confirmed also by the fact that the building of EU’s mandate in Kosovo has not been paralleled by a progressive withdrawal of UNMIK. Because of this uneasy situation, it remains unclear how the coexistence of these two presences will develop in the future. It is also unclear how these two organisations will interact with the new Kosovo post-independence institutions.

3. Analysis of the legal and administrative system 3.1. Legal Framework 3.1.1. Overview

During the armed conflict/war, which was rather short (1998-1999) in comparison with BiH, no legislation, neither domestic nor federal, was enacted to deal with the restitution or compensation of private property affected by the conflict. However, the legislation regulating property issues and the applicable law in general is quite complex.

Laws regulating property issues in Kosovo derive from different periods of its history: from the communist-era (property nationalisation and confiscation), from the period of economic liberalism in 1980, and from the period of ethnic discrimination in 1990 to the 486 However, SC Resolution 1244 is still in force, which means that ultimate responsibility for the administration of Kosovo still falls on the SRSG. 487 See Art. 3 (a), (b) und (h) of the Council Joint Action 2008/124/CFSP of 4 February 2008 as the legal basis of EULEX mission. 488 Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, S/2009/300.

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period of UNMIK, which ruled by means of regulations, and the new laws adopted by the Kosovo Assembly after the independence. The promulgation of various UNMIK regulations, which partly substituted the Yugoslav property laws contribute to the proliferation of legal provisions related to property, the fragmentation of the legislative systematic and consequently create a complex and ambiguous legislative framework489, difficult to be understood and to be applied by the courts.

UNMIK Regulation 1999/1490 on the Authority of the Interim Administration in Kosovo, as later amended by Regulation 1999/24, regulated the applicable legal framework in Kosovo, which comprise a mix of pre-1989 Kosovo Autonomy-laws, post-1989 FRY laws, UNMIK Regulations and subsidiary instruments as well as international human rights standards.491 In the hierarchy of normative acts, there is SC Resolution 1244 on the top of the laws applicable in Kosovo (until it is not superseded by another SC Resolution), followed by regulations promulgated by UNMIK and subsidiary instruments issued thereunder, “primary laws” in effect on 22 March 1989, and any post-22 March 1989 law that fills in a gap and is not discriminatory. After Kosovo’s independence and adoption of the new constitution by the Kosovo parliament, the above mentioned hierarchy is questionable insofar as the new constitution stipulates its supremacy as the highest legal act of the Republic of Kosovo, adding that laws and other legal acts should be in accordance with it.492 Accordingly, the legislative framework remains compounded of three parallel sources of legislation: ex-Yugoslav law, UNMIK regulations and Kosovo law adopted following the declaration of independence.

In concrete terms, UNMIK Regulations and subsidiary instruments substitute all previous laws regulating the same subject matter. The domestic laws in force until March 1989, when Kosovo lost its autonomy, are applicable insofar as they regulate matters that fall outside the scope and application of UNMIK Regulations. By contrast, post-1989 legislation can be applied only in limited circumstances, such as where a court or a body or person required to implement a provision of such law determines that a subject matter or situation is not covered by the pre-1989 laws, but is covered by another law in force in Kosovo after 22 March 1989, which is not discriminatory or inconsistent with human rights standards.493

3.1.1.1. Legislation on “abandoned” property494

A single legislative act dealing specifically and only with the post-conflict temporary administration and allocation of abandoned properties was never adopted in Kosovo. Rather, this issue was regulated in different UNMIK Regulations, mainly in Regulation 1999/23 and 2000/60 (but also 2006/10 and 2006/50), which dealt also with other issues. The authority to handle inter alia administration, allocation or rental of vacated residential properties495 for humanitarian purposes was given initially496 to the Housing

489 A further complication is that it is possible that only certain provisions in a law remain in force, resulting in a patchwork of relevant legislation regarding property rights. 490 Pursuant to SC Resolution 1244 all legislative and executive authority is vested in UNMIK and is to be exercised by the Special Representative of the Secretary-General of the United Nations (SRSG). In July 1999, the SRSG promulgated UNMIK Regulation 1999/1, which prescribed among other things that UNMIK would carry out its duties under SC Resolution 1244 by issuing legislative acts in the form of Regulations. 491 Section 1.1 UNMIK Regulation 2000/59 amending UNMIK Regulation 1999/24 on the Law Applicable in Kosovo provides that the law applicable in Kosovo includes “the regulations promulgated by the Special Representative of the Secretary-General and subsidiary instruments issued thereunder and the law in force in Kosovo on 22 March 1989. In case of a conflict, the regulations and subsidiary instruments issued thereunder shall take precedence.” 492 Art. 16 Constitution of Republic of Kosovo. 493 Ibid. According to Section 1.2 of the same Regulation, if “a subject matter or situation is not covered” by those laws but is covered by another law “in force in Kosovo after 22 March 1989 which is not discriminatory and which complies with” international human rights standards, such law shall apply. 494 Section 1 of UNMIK Regulation 2000/60 defines abandoned housing as “any property, which the owner or lawful possessor and the members of his/her family household have permanently or temporarily, other than for an occasional absence, ceased to use and which is either vacant or illegally occupied”. 495 With the exception of the administration and allocation of socially owned apartments that were not under the authority of HPD.

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and Property Directorate (HPD). The HPD’s mandate was firstly incorporated into UNMIK Regulation 1999/23497 and further specified in UNMIK Regulation 2000/60. This latter enclosed both, substantive and procedural provisions for the administration as well as for the allocation and rental of a residential property. These Regulations constitute the main post-conflict legislation that deals with abandoned property in Kosovo. The detailed analysis will be given in Section 3.1.2.1.


UNMIK Regulations 1999/23, 2000/60 and 2006/10, 2006/50, which are still applicable, constitute the main part of the substantive law. Chronologically there were both Regulations 1999/23 and 2000/60 that dealt primarily with the restitution/compensation problematic. Therefore they will be presented here primarily. Then UNMIK Regulation 2006/10 and 2006/50 will be analysed.

UNMIK Regulation 1999/23 provided for the establishment of an administrative body, the HPD, and an independent quasi-judicial body, the Housing and Property Claims Commission (hereafter: HPCC), to address post-conflict restitution of residential property. Additionally, UNMIK Regulation 2000/60 contained detailed provisions on substantial and procedural matters related to the resolution of property disputes. Initially, only the residential property and the property associated to it were subject to regulation. Later, with the promulgation of UNMIK Regulation 2006/10, as amended by UNMIK Regulation 2006/50, the regulated subject was extended to agricultural and commercial property. An in-depth analysis of the above mentioned legislation will be given under Section 3.1.2.2.

3.1.2. Restitution/compensation law currently in force

3.1.2.1. Constitutional provisions

In Kosovo, the primary source of the rights of displaced persons and refugees to return and to housing and property restitution is SC Resolution 1244. The Resolution determined “to resolve the grave humanitarian situation in Kosovo”498 and provide for “the right of all refugees and displaced persons to return to their homes in safety” as one of the responsibilities of the international civil and security presence in Kosovo.499 However, in contrast to the DPA of BiH, which explicitly integrated the right to restitution into its text500, SC Resolution 1244 was vague on this subject, not explicitly mentioning it in its provisions. Moreover, because SC Resolution 1244 was adopted on 10 June 1999, it seems that only the displacements of Kosovo Albanians until June 1999 were considered. Provisions dealing with the displacements of non-Albanian communities after June 1999 and related problems, such as property restitution or compensation, seem to be lacking. A comparison with the DPA in BiH lends to the remark that the decision of the drafters of SC Resolution 1244 to not include the right to restitution in the resolution text results as a very timid or probably cautious one.

The Constitutional Framework for Provisional Self-Government in Kosovo enacted through UNMIK Regulation 2001/9 guarantees the right of all refugees and displaced persons from Kosovo “to return to their homes, and to recover their property and personal possessions” and states that “the competent institutions and organs in Kosovo

496 UNMIK Regulation 2006/10 in March 2006 established the Kosovo Property Agency (KPA), as a successor of the HPD, which was officially dissolved on July 2007. This Regulation extended the KPA’s mandate with the resolution of property claims relating to agricultural and commercial property. In line with Section 16 of UNMIK Regulation 2006/10, KPA took over also the authority for managing the administration of abandoned properties already under HPD administration. 497 Section 1.1 of UNMIK Regulation 1999/23 mandated the HPD inter alia to supervise the temporary utilisation or rental of abandoned housing for humanitarian purposes. 498 See Preamble of SC Resolution 1244. 499 Preamble, paras. 9(c), 11(k), 13 and Annexes of SC Resolution 1244. 500 DPA, Annex 7, Chapter 1, Art. I(I) reads: “All refugees and displaced persons have the right freely to return to their homes of origin. They shall have the right to have restored to them property of which they were deprived in the course of hostilities since 1991 and to be compensated for any property that cannot be restored to them.”

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shall take all measures necessary to facilitate the safe return of refugees and displaced persons to Kosovo, and shall cooperate fully with all efforts by the UNHCR and other international and non-governmental organisations concerning the return of refugees and displaced persons” (Preamble and Section 3.4). The Constitutional Framework allocates several competencies relating to property matters to the international authority of Special Representative of Secretary General (hereinafter: SRSG),501 including the responsibility for the HPD/HPCC as a reserved power.502

Furthermore, the Comprehensive Proposal for the Kosovo Status Settlement,503 the so-called Ahtisaari Plan, provided that all refugees and IDPs from Kosovo have the right to return and reclaim their property and personal possessions in accordance with domestic and international law.504 It required the future Constitution of Kosovo to provide for the return of refugees and IDPs from Kosovo and to assist them in recovering their property and possessions (Art. 1.5 Annex I). The Plan affirms that property restitution issues are to be addressed as a matter of priority by Kosovo authorities, which are to establish an independent mechanism to formulate the policy, legislative and institutional framework for addressing such issues. Additionally, Kosovo was to recognise, protect and enforce the rights of persons to private movable and immovable property located in Kosovo in accordance with established international norms and standards. Kosovo was to address claims regarding private immovable property, including agricultural and commercial property, where appropriate, by the KPA, and property restitution issues, including those related to the Serbian Orthodox Church, as a matter of priority, in accordance with Annex VII of the Settlement on Property and Archives (Art. 8.6). Moreover, Kosovo and the Republic of Serbia were expected to ensure fair and non-discriminatory treatment of property and financial claims of each other's citizens, and to ensure fair and non-discriminatory access to their jurisdictions and claims resolution mechanisms (Art. 8.7). Art. 6.1 of Annex VII provides that Kosovo shall also address property restitution issues, including those related to the Serbian Orthodox Church, as a matter of priority. Finally, Kosovo shall establish an independent mechanism to formulate the policy, legislative and institutional framework for addressing property restitution issues. Representatives of the international community were to be invited to participate in such a mechanism, which was to include representatives of non-majority Communities.

The Constitution of the Republic of Kosovo adopted on 15 April 2008, which enshrined fully the Ahtisaari Plan’s principles, ranks in Art. 7 the right to property as a value on which the constitutional order of the Republic of Kosovo is based. It guarantees the right to private property (Art. 46) and states that no one shall be arbitrarily deprived of property. The Republic of Kosovo or a public authority of the Republic of Kosovo may expropriate property, if such expropriation is authorised by law, is necessary or appropriate to the achievement of a public purpose or the promotion of the public interest, and is followed by the provision of immediate and adequate compensation to the person or persons whose property has been expropriated (Art. 46, para. 3). The Constitution has incorporated in its text the obligation of the Kosovo state authorities to promote and facilitate the safe and dignified return of refugees and IDPs and to assist them in recovering their property and possession (Art. 156). The ECHR and its Protocols are directly applicable in Kosovo and in the case of conflict have priority over provisions of laws and other acts of public institutions (Art. 22). Moreover, the human rights and fundamental freedoms guaranteed by the Constitution shall be interpreted consistent with the decisions of the ECtHR (Art. 53). The Constitution provides for the Constitutional Court as an independent organ and the final authority for the interpretation of the Constitution and the compliance of laws with the Constitution (Arts. 4.6, 112). Individuals are authorised to refer violations by public authorities of their individual rights

501 UNMIK Regulation 2001/9 on a Constitutional Framework for Provisional Self-Government in Kosovo, Section 8.1 (q), (u). 502 Ibid, Sections 8.1 (t) and 11.1 (g). 503 Security Council document S/2007/168/Add. 1. 504 Art. 4.1 of Comprehensive Proposal for the Kosovo Status Settlement.

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and freedoms guaranteed by the Constitution, but only after exhaustion of all legal remedies provided by law (Art. 113.7).


3.1.2.2.1. Administration/Restitution of abandoned apartments

The administration, allocation and rental of abandoned properties aimed to provide people in need of humanitarian accommodation with temporary housing solutions, while at the same time protecting the legal status of owners of vacated properties in order to encourage returns. Nevertheless, the administration of abandoned properties is an instrument of property protection in line with internationally recognised human rights standards, such as Art. 1 Protocol 1 ECHR.

Upon written request of the successful claimant (property right holder) to place his/her property under temporary administration505 or ex officio506, the HPD, later the KPA,507 was authorised to take possession of the property until the claimant requested repossession and to utilise it on a temporary basis for humanitarian housing purposes. The legal effect of putting the property under administration was that the rights of possession of the owner or occupancy right holder were temporarily suspended in the public interest.508 Once the property was placed under its administration, HPD had broad powers to evict illegal occupants and to allocate property to those that qualified on the basis of humanitarian need. The criteria for determining which property qualified for allocation was not stipulated in HPD’s rules of procedure (UNMIK Regulation 2000/60), but rather in internal HPD documents. Therefore, it was up to the HPD to decide, without any other administrative or judicial review, who was an illegal occupant and who merited a humanitarian permit.509 In the case the occupant of an abandoned residence cannot prove a legitimate right of occupation within 30 days, the HPD can take the property ex officio under its administration. However, the owner or occupancy right holder of a property under administration can terminate the administration of the property and to return into possession of it. At that moment his/her right overrides the one of the public interest in providing adequate housing for humanitarian purposes. However, to the affected current occupant of the property a time limit of 90 days was granted to vacate it and the possibility (if he/she qualified for a humanitarian need) to be allocated another housing.510

Section 1.1(b) of UNMIK Regulation 1999/23 provided for a rental scheme to be put in place for properties under administration, whereby rental money received from the property would be lodged in a separate account in trust for displaced property rights holder. The statistics showed that more than half the successful claimants gave the property for administration, rather than taking immediate possession of it. Otherwise the claimants could decide to sell the property, which helped getting financial compensation for housing for which they had no intention of returning. The purpose of the rental scheme amongst others was to prevent the destruction and illegal occupation of properties by regularizing the utilisation of abandoned properties. Because of the politically sensitive nature of the matter, the scheme received the requisite political approval only in August 2006 and became operational in October 2006.511 Under the scheme, occupants must pay rent to the successful claimant through the KPA.512

Finally, some problems need to be addressed: 505 Section 12.2(b) of UNMIK Regulation 2000/60. 506 This alternative refers to the situation where properties are placed under administration following the inventory of abandoned properties mentioned in Section 1.1 (a) of UNMIK Regulation 1999/23. It pertains to the situation, where there is no claim to the property in question. 507 As of the end of December 2008 there were 4,103 properties under KPA’s administration, of which 3,137 were placed under administration on receipt of a request from a successful HPCC-claimant and 960 based on ex officio intervention of the KPA and its predecessor HPD. See KPA, Annual Report 2008, p. 29. 508 Section 12.3 of UNMIK Regulation 2000/60. 509 Ibid, Section 12.4. 510 Ibid, Section 12.7. 511 See KPA, Annual Report 2008, p. 30. 512 Section 16 of UNMIK Regulation 2006/10.

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In order to perform its mandate, part of which was also the management of abandoned property, the HPD, instead of adopting additional legal provisions, i.e. administrative or executive directives513, to the Regulations 1999/23 and 2000/60, choose rather to adopt internal rules and procedures. The latter were not publicly available. However, since the administration and allocation of property as public governance activities affected directly the rights of individuals, they were carried out without the necessary transparency.

In practice little information is available with regard to how and to what extent the allocation of temporary housing has been carried out. It has been indicated by several sources that temporary permits, by way of institutional policy, have been issued more or less automatically, without carrying out an investigation and without differentiating by priorities between the individuals applying for housing assistance. Some other sources indicate that the authority to allocate housing has been exercised differently between the regional offices.

Additionally, the mandate to utilise property under administration on a temporary basis for humanitarian purposes over the years has been confused with or interpreted as a mandate to provide for and resolve long-term humanitarian housing for the disadvantaged in Kosovo.

One more issue needs to be mentioned here. The issuing of temporary permits to the occupants certainly prevented further destruction of the properties in the early phase, although there is no available information as to the extent of this impact. The fact that people were given the opportunity to use the properties may have discouraged looting and destruction to a certain extent and at the same time may have made possible a legal use of the properties.

3.1.2.2.2. Legislation on restitution of private property

One of the principles governing the restitution process in Kosovo was that any refugee or displaced person who lost possession of residential property had a right to return to that property or to dispose of it in accordance with the law.514 The aim was to restore the status quo to what it had been before the armed conflict/war, such that persons, who had been in lawful possession of their residences before the armed conflict/war, regardless of whether they were owners or occupancy right holders, were afforded the right to return. Additionally, the process had to find remedies for those persons affected by the discriminatory laws and policies of the Milošević regime during the previous decade. Ongoing disputes relating to title determinations or underlying legal rights to property would be left to be resolved thereafter by the domestic courts.

In order to resolve all above-mentioned disputes relating to property rights, the solution was seen in accessing to a claims mechanism and to an effective enforcement of related decisions. Therefore, three categories of the most controversial residential property claims515 were identified: The first category of claims, the so-called “A” claims, could be submitted by natural persons whose ownership, possession or occupancy rights to residential property had been revoked subsequent to 23 March 1989 on the basis of legislation which was discriminatory in its application or its intent. The second category of claims, the so-called “B” claims, pertained to persons who entered into informal transactions of residential property on the basis of the free will of the parties subsequent to 23 March 1989. At least the third category of claims or the so-called “C” claims concerned owners, possessors or occupancy right holders of residential property prior to 24 March 1999, who did not enjoy possession of the property anymore and had not transferred the property voluntarily. This category of claims aimed at addressing the forced population displacement of those who had property rights to residential property

513 Such additional legal provisions were adopted primarily in 2007, i.e. seven years after the promulgation of UNMIK Regulations 1999/23 and 2000/60. See Administrative Direction No. 2007/5 and Administrative Direction No. 2008/5. The latter provides exemptions for utility bills that have been accrued illegally on properties under KPA administration. 514 Section 2.5 of UNMIK Regulation 2000/60. 515 Section 1.2 of UNMIK Regulation 1999/23.

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on 24 March 1999, but who had fled their homes due to the armed conflict/war and could not return, given the manifest impossibility of returning to the illegally occupied property. While both first claim categories dealt with issues concerning mostly Kosovo Albanians, the third category affected primarily the rights of refugees and displaced persons, mostly Kosovo Serbs and Roma. Claims for compensation of damaged property or reconstruction assistance, or claims for protection of illegal evictions were not included.516 The arguement was that these problems should find a solution elsewhere. These claims were further limited in respect of the time period during which the claimable issue must have arisen (ratione temporis), the claimant’s capacity to bring a claim (ratione personae), the type of losses for which restitution of the property right could be ordered (ratione materiae), and the requirement that the property be located in Kosovo (ratione loci). If those conditions were not fulfilled, the claim was rejected as falling outside of the Regulation’s object.

For the scope of this research, only category “C” claims are relevant, since they comprise the settlement of claims regarding real property affected by the armed conflict/war. The other claim categories, which are related to events that occurred before the armed conflict/war, will be of relevance here only for the part in which they compete with “C” claims.

The remedies offered by the HPD/HPCC included restitution in kind, title registration and compensation in a limited number of cases (competing occupancy rights claims). A fourth possibility was the temporary administration of the housing unit. The legislation protected all persons who were in lawful possession of their residences before the conflict, regardless of whether they were owners or occupancy right holders. Ongoing disputes relating to property title determinations would be left to be resolved by the courts afterwards.

The legislator opted not to provide for the possibility of monetary compensation for the majority of claims, with the exception of those cases in which competing claims on discrimination (“A” claims) and displacement (“C” claims) were present.517 Restitution in kind was seen as the preferred remedy. In line with that, if there were no conflicting rights over the property, a successful category “C” claimant that claimed ownership over the property would have been awarded restitution in kind in terms of repossession or administration of the property. The restitution in kind was limited to the right of possession over the claimed property, if estimated it constituted an effective remedy, although the claimant in fact alleged a right of ownership to the property in question.518 Due to the dire conditions of cadastral records in Kosovo that had often been removed, destroyed or not updated, the determination of ownership rights was very difficult. Most of successful “C” claimants, who were awarded restitution in kind, chose, as an alternative to repossession, to put the property under administration, which was intended to provide income for the claimant through the rental scheme, until the situation became conducive to return (see Section 1.2.1.).

The remedy differs when the ownership of the same property was acquired by a natural person through a valid voluntary transaction for value before the date this regulation entered into force. Where there was such conflicting right which precluded restitution in kind, the “C” claimant would have been entitled to compensation upon enactment of legislation regulating the establishment of a fund, and the amounts and modalities of payment.519 Since the monetary compensation presents amongst others a challenge in regard to funding, it was used sparingly as an alternative remedy to restitution in kind.

516 Sections 4.4 and 4.5 of UNMIK Regulation 2000/60. 517 In these cases, there are two competing claims of different category over the same apartment. This occurs when a person claims to have lost his/her apartment due to a discriminatory decision (an A claimant) and the person who was allocated the same apartment during the Milošević regime claims to have lost the possession of the same apartment due to his or her displacement (a C claimant). 518 UNMIK Regulation 2000/60, Section 22. 519 Section 4.4 of UNMIK Reg. 2000/60. To date the compensation scheme for socially owned apartments is finalised by KPA, but needs to be approved by the Supervisory Board.

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A complicated situation with competing rights presents the case where the socially owned apartment was, subsequent to the discriminative cancellation of the occupancy right, purchased from the allocation right holder under the Law on Housing520 and was still the current owner of the property. In this case, there are two competing claims of different category over the same apartment. An “A” claimant, who claims to have lost his/her apartment due to a discriminatory decision and the person, who was allocated the same apartment during the Milošević regime and claims to have lost the possession of the same apartment due to his or her displacement (a “C” claimant). The “A” claimant had a right to ownership of the apartment upon payment to the HPD of a sum to be determined by it (the price of privatised apartment). The current owner (the “C” claimant) who had purchased the apartment under the Law on Housing was entitled to compensation for his/her loss of the ownership right.

The repossession of properties was given as a free choice to the successful claimant, free of any conditionality. The only existing limitation established that non-repossession within 14 days of the eviction could lead to the HPD temporarily administrating the property.521For as long as the property was under administration, the claimant’s right to take possession of the property was suspended, but it was open to him/her to request repossession at any time.

Claims for compensation of damaged property or reconstruction assistance, or claims for the protection of illegal evictions were not included.522 The arguement was that these problems should find a solution elsewhere. But this did not make the potential claims disappear. In 2004, mainly Kosovo Serb IDPs lodged in the regular courts about 17,000 claims for compensation for their properties destroyed by the armed conflict/war.523 These claims were put aside and not processed by the local courts waiting for an adequate solution.524 Such adequate solution, however, did not materialise and the right to a trial of these claimants was violated.525

Initially, only residential property and the property associated to it was subject of regulation, leaving practically out of the process the privately owned agricultural and commercial property, with the exception of those cases in which such immovable property was associated to a claimed residential property. This was seen as a gap in the protection of the rights to housing and property restitution, since due to lack of such regulation a large number of illegal occupations of agricultural and commercial property were identified, hindering in this way the process of returns in Kosovo. Thus UNMIK Regulation 2006/10, as amended by UNMIK Regulation 2006/50, was promulgated, establishing the KPA and the Kosovo Property Claims Commission (hereafter: KPCC) with the mandate of resolving all outstanding residential, commercial and agricultural private immovable property disputes related to the armed conflict/war as well as the administration of abandoned property.526

This legislation provided for the resolution of claims relating to ownership and property use rights with respect to private immovable property, including agricultural and commercial property, involving circumstances directly related to or resulting from the armed conflict/war that occurred between 27 February 1998 and 20 June 1999. UNMIK Regulations 2006/10 and 2006/50 contained no provisions on the compensation for

520 Law on Housing provided the framework for the privatisation of socially owned property, Official Gazette of SAP Kosovo, No. 11/83, 29/86 and 42/86. 521 Ibid, Section 12.2.c. 522 Sections 4.4 and 4.5 of UNMIK Regulation 2000/60. 523 OSCE Mission in Kosovo report, ‘Eight Years After: Minority Return and Housing and Property Restitution in Kosovo’, 2007, p. 30. The majority of these claims were lodged against UNMIK, KFOR and the Provisional Institutions of Self-Government of Kosovo (PISG) and were encouraged by officials of the Republic of Serbia, who argued that the statute of limitations (5 years) would make it impossible to lodge them afterwards. 524 UNMIK, which together with the NATO forces had given itself immunity from any domestic judicial action, responded by putting the claims aside. 525 See Arraiza, J.M, Moratti, M., ‘Getting the property questions right: Legal policy dilemmas in post-conflict property restitution in Kosovo (1999-2009)’, International Journal of Refugee Law, p. 433. 526 See SC document S/2006/361, Section 89.

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private properties being damaged, destroyed or illegally used. Therefore, no monetary compensation has been awarded for such a category of claims.

The KPCC decisions would provide the successful claimant with a full title determination of either ownership or property use rights which could then be registered in property records. In cases where there are co-owners, the property right in favour of the property right holder is to be confirmed in respect of the specific part over which s/he enjoys a property right (e.g. ½, ¼, etc.), as stipulated in the relevant property documents (i.e. possession list, inheritance decision, court decisions etc). When the property right is confirmed, an order of repossession of the property can be issued, as well as consequential orders to enable the property right holder to exercise his/her property right.

The consequential remedies provided in the KPA/KPCC legislation were also significantly different from those of the HPD/HPCC. The fact that the properties, where unlawful constructions had often been built, were in most cases agricultural land, required different solutions. Thus, in addition to evictions, the new legislation provided for the possibility of mandatory leases, auctions, demolitions and compensation.

After the promulgation of the Constitution of the Republic of Kosovo on 18 April 2008, the Assembly of Kosovo adopted on 26 June 2009 the Law No. 03/L-154 on Property and other Real Rights, which abrogates and makes void all provisions of the previous laws that have regulated this field.527 Furthermore the Assembly of Kosovo adopted Law No. 03/L-079 on 13 June 2008 amending UNMIK Regulation 2006/50, which established the KPA as an independent agency under Art. 142 of the Constitution of Kosovo.528

However these changes in the applicable legal framework of Kosovo have not affected the property restitution mechanism itself.


The legal issues relating to restitution/compensation of private properties following the regional conflict in Kosovo have been very complex. The claims mechanisms handled not only uncontested claims, but rather claims that presented genuine legal disputes. These mechanisms were not of purely administrative nature, as e.g. in BiH, but have significant judicial elements. The most important one is perhaps that the claims adjudicating process was largely adversarial529 (mostly envisaged in the HPD’s regulatory framework). The applicable legislation thus comprises procedural rules to ensure notification and participation through the exchange of written submissions and documentary evidence. Another significant element was that the dispute settlement bodies in Kosovo were also responsible for the implementation or enforcement of its decisions.

The HPCC had exclusive jurisdiction to decide on the property claim categories (see Section 3.1.2.2), although it could transfer claims or parts of them to courts or administrative bodies, when it deemed that the claim or part of the claim did not fall under its mandate.530 UNMIK Regulation 2000/60 imposed a deadline to submit claims with the HPD. The initial deadline to submit a claim was 1 December 2001. The Regulation is silent about what remedies are available to a potential claimant who missed the deadline. But factually the deadline was extended three times in order to ensure access to the claims process for all displaced persons given the available resources, with 527 Art. 296 of Law No. 03/L-154. It refers primarily to the Yugoslav Law on Basic Property Relations of 1980. 528 Additionally, Law No. 03/L-079 transferred the competence of UNMIK for the KPA to the Kosovo authorities and the EU’s International Civilian Representative. 529 This means that everyone who is party to such proceedings shall have a reasonable opportunity to present his case to the court under conditions which do not place him/her at substantial disadvantage vis-a-vis his/her opponent. The ECtHR has further elaborated on this by concluding that the right to have an adversarial trial means the opportunity for the parties to have knowledge of and comment on the observations filed or evidence adduced by the other party. 530 Section 2.5 of UNMIK Regulation 1999/23.

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the final date set for 31 July 2003.531 The deadline had important consequences, as rights of disposal were restricted in order to protect the property restitution process from further transfers that would hamper the possibility of restitution in kind.

By submitting a claim category “C” claimants could additionally seek an order restoring possession or placing the property under administration.532 During the proceedings the “C” claimant had to prove533 that he or she had a property right (i.e. an ownership right, an occupancy right534 or a lawful possession right) to residential property prior to 24 March 1999 and had lost the possession of the property in circumstances surrounding the NATO air-campaign and, finally, that he or she had not voluntarily disposed of the property right. The respondent party (occupants and others) needed to give notice of participation and submit a reply to the claim within certain deadlines in order to become a party to the proceedings.

When the successful claimant requested repossession, that implied termination of the occupant/respondent permit, and consequently an eviction order was delivered to the occupant/respondent to leave the residential property. UNMIK Regulation 2000/60 in its Sections 14 and 25 provides that the occupant/respondent has the right to request a reconsideration of the decision by submitting a reconsideration request within the same institution, namely the HPCC. The deadline for the occupant/respondent to submit a reconsideration request was within 30 days of being notified; otherwise the eviction order was to be executed.535 The reconsideration request was to be adjudicated by a different panel than the one that decided the claim. Obviously, this procedure delayed the implementation of the initial decision and, therefore, the occupant/respondent was able to prolong the use of the property.536 Additionally, a further delay of the execution of the eviction order for up to 6 months was possible, pending resolution of the housing needs of the current occupant, or under circumstances that were deemed fit.537 This discretion gave the possibility to choose not to serve the order in appropriate cases until alternative accommodation for the current occupant could be identified. The reasoning for such a provision was to strike a balance between the claimant’s right to property and the occupant’s right to adequate housing. If the claimant’s humanitarian need was as strong as that of the current occupant, then it should have been proceeded with the eviction. However, this was a discretion which was utilised sparingly, as it ran counter to the rights of the lawful property right holder to repossession and enjoyment of his/her property rights.

3.2.2. Restitution/compensation bodies

In order to restore possessions lost by the persons displaced as a consequence of the armed conflict/war in Kosovo as well as of those persons affected by the discriminatory laws and policies of the Milošević regime, UNMIK established through Regulation 1999/23 the HPD/HPCC as an ad hoc international body. It was mandated to achieve an effective and efficient resolution of residential property disputes and to provide overall direction on property rights in Kosovo538. This mechanism was designed as a two headed body, with

531 Since the adoption of UNMIK Regulation 2000/60 until the deadline expired, the HPD registered a total of 29,160 claims. By early 2007, HPCC had decided on all filed claims and its mandate ended. See HPPC Report, p. 40. 532 Section 1.2(c) of UNMIK Regulation 1999/23. 533 Section 1.2(c) of UNMIK Regulation 1999/23 and Section 2.6 of UNMIK Regulation 2000/60. 534 An occupancy right is a unique concept derived from the legislative tradition of the socialist regime of former Yugoslavia. It is a complex quasi-ownership right, stronger than a regular tenancy right, but less than full ownership. It is granted for life, and may be inherited by family members, but cannot be sold. In ex-Yugoslavia socially owned enterprises were obliged to put aside part of the profits to construct apartments for the employees through a public housing enterprise. The enterprise would “socially” own the apartment, while the worker would receive an occupancy right. The occupancy right was dominant in urban areas. In Kosovo in 1989 there were approximately 30,000 socially owned apartments. 535 Ibid, Section 14. 536 Initially, these postponements arrived up to 7 months or more. Thereafter, due to facilitation of the system of claims notification, the rate has gone down to approximately 2 months. 537 Section 13.2 of UNMIK Regulation 2000/60. 538 See the preamble and section 1of UNMIK Regulation 1999/23.

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an administrative body able to manage the process, the HPD, and a quasi-judicial body, the HPCC, which had exclusive jurisdiction to adjudicate the property claims referred to it by the HPD. Furthermore the HPD/HPCC had quasi-legislative powers, since its rules of procedure and evidence comprised in Regulation 2000/60 were adopted after being proposed by HPCC itself and since the Regulation granted to HPD/HPCC the authority to issue further rules for its implementation. The HPD/HPCC was specifically established as a temporary body539 and was responsible to collect claims, to verify documents and carry out investigations with the purpose of gathering additional evidence. These responsibilities distinguish the HPD/HPCC mechanism from that of ordinary courts, where the disputing parties themselves are responsible for carrying out these tasks. The HPD/HPCC was designed as a mass claim mechanism which offers important advantages for the resolution of large groups of claims. The claimants benefit in such mechanisms from a process free of charge in which the investigation is carried out by the administrative body. The claimant, thus, does not need to hire a private lawyer for his or her claim. Moreover, the establishment of offices and mobile units allows the mechanism to reach displaced persons.

The processing of claims by HPD passed through different stages: claim in-take, notification, verification, rejection, mediation and, lastly, referral of cases to the HPCC. Whenever possible, the HPD attempted to mediate among the parties and, if no solution was reached, the claim was further referred to HPCC for resolution. The claim had to be submitted personally by the claimant, a member of the family household or an authorised person in the form provided by the HPD. The HPD was responsible to notify other persons with a legal interest in the claimed property (the occupant and any other party with a legal interest who expressed their wish to participate) by announcing the claim in an official publication. The occupant should submit the “reply to claim” form. The HPD had the duty to make sure that parties have an opportunity to examine the allegations of other parties and to provide a response to any of them. Then a prima facie verification or a thoroughly one by checking public records was conducted, relevant to the fact, if the claimant alleged any rights to the property. If the claim had not been settled through mediation or had not been rejected by HPD due to lack of jurisdiction, it was referred to the HPCC for adjudication. The HPD prepared summaries of submissions and evidence, as well as recommendations for the consideration of the HPCC. As a general rule the HPCC decided on the basis of written submissions. Oral hearings were exceptional and would take place when the Commission considered them necessary to reach a decision.

Besides the right for reconsideration within the same institution, decisions of the HPCC were final and binding and not subject to review by any other judicial or administrative body in Kosovo.540 When the decision was made not to include such a right, it was motivated by the desire to achieve a speedy and final resolution of the claims. However, the decision to give the HPCC exclusive jurisdiction over certain categories of claims implied that the individuals concerned were denied the possibility to have their claim adjudicated by the regular courts in Kosovo. This was seen as complying with Art. 6 ECHR, which guarantees decision by a tribunal in the determination of civil rights and obligations, because the HPCC was composed of a panel of two international members and one local member, experts in the field of housing and property law and competent to hold judicial office. The sensitive nature of the property disputes and the difficulties to trust their fair resolution to local courts in a climate of acute ethnic tension were some further reasons accounting for such decision-making. Additionally, in the aftermath of the war no functional court system existed in Kosovo and afterwards, due to limited resources and an existing backlog of cases, the regular courts lacked capacity to deal with these disputes.

The situation relating to the right of appeal changed with the promulgation of UNMIK Regulation 2006/10, as amended by UNMIK Regulation 2006/50, which established the

539 Ibid. Section 2.1 provides that the HPCC will function ‘until the Special Representative of the Secretary-General determines that local courts are able to carry out the functions entrusted to the Commission’. 540 Section 2.7 of UNMIK Regulation 1999/23.

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KPA/KPCC as successors of HPD/HPCC and substantively extended the subject of claims to commercial and agricultural private immovable property. Subsequently, UNMIK Administrative Direction 2007/5 was promulgated setting down detailed rules of procedure and evidence governing the resolution and implementation of claims. This time the deadline for collecting claims expired on 3 December 2007541 and was not further extended. Any property claim filed after December 2007 falls under the jurisdiction of the Kosovo courts. KPA is composed of three main bodies: an Executive Secretariat, an autonomous quasi-judicial Kosovo Property Claims Commission (KPCC) and a Supervisory Board. The competencies of the Executive Secretariat and KPCC resemble respectively to those of HPD and HPCC. The Supervisory Board instead is mandated to supervise the work of the KPA and is expressly precluded from participating in the adjucative process of KPCC.

The applicable legislation makes possible the notification of parties with a legal interest in the claimed property and offers them the opportunity to participate in the proceedings.542 Thereafter the processing of claims takes place, which involves full investigation of claims, verification of documentary evidence submitted in support and drafting legal submissions containing a legal assessment and recommendations on the claim. Claims investigation and processing is inquisitorial in nature (the authorities contact the parties to the claim where additional information is required and they may conduct any other investigations, ex officio where necessary) given that the decision-making process before KPCC is non-adversarial. That means that claims are decided on the basis of written submissions and parties do not have the opportunity to present oral evidence or arguement before the KPCC.

The decisions of the KPA/KPCC are legally binding, but unlike the HPD/HPCC decisions, they may be appealed to the Supreme Court of Kosovo. This was an innovative feature of the KPA/KPCC. Such provisions ensured that the mass claims mechanism functioned as an integral part of the judiciary. Thus within 30 days of the notification to the parties of a decision of the KPA/KPCC on a claim, a party may submit to the Supreme Court of Kosovo an appeal against such decision. If no appeal is made to the Supreme Court, the decisions constitute title determinations and become executable 15 days following the date of notification to the parties. In practice a postponement of the execution of such decision is only permitted in cases where the occupant’s own claim is still pending implementation. In such cases the eviction may be stayed pending the availability of suitable alternative accommodation and the resolution of the housing needs of the occupant, without prejudice to the outcome of the claim.

Another innovative feature of the new KPA/KPCC mechanism was the legal value of its end decisions. The HPD/HPCC decisions were of a limited scope e.g. deciding on “C” claims they did not determine the ownership/occupancy right title, therefore was not possible to register the decision in the Immovable Property Rights Register. By not determining the title, the possibility remained open for the property right to be claimed successfully in the domestic courts afterwards, hindering in this way the sustainability of the entire process. In contrast to this, the legislator decided that decisions of KPA/KPCC would amount to title determinations. The KPA/KPCC decisions would then provide the successful claimant with a full title determination of either ownership or property use rights which could then be registered.

3.2.3. The human rights review mechanisms

One of the primary responsibilities of international civil presence in Kosovo, under SC Resolution 1244, was the protection and promotion of human rights. But the Resolution itself did not specify any mechanism to ensure implementation of the human rights

541 Up to this time period more than 40,000 claims have been recorded at the KPA. As of September 2009, over half of the claims have been adjudicated by the KPCC; 6,700 decisions have been implemented. Of those 770 have led to physical repossessions. 542 See section 10 of UNMIK Regulation 2006/50 and section 3 of Annex II to UNMIK Administrative Direction 2007/5.

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mandate by UNMIK. The lack of such mechanism implies that there has been no authoritative review of the acts issued by institutions under UNMIK, e.g. the acts of HPD/HPCC, later KPA/KPCC, in human rights terms. Additionally, none of the international human rights courts or committees has ever examined the compliance with human rights of another mass claims restitution process operating in a post-conflict situation. Hence, there were no precedents to assess, if the activities of the HPD/HPCC, later KPA/KPCC, comply with human rights standards.

The Ombudsperson’s authority, established in 2000543 as an independent institution with a mandate to address issues dealing with alleged human rights violations or abuses of authority by both international and local public authorities in Kosovo, was insufficient to implement the full range of internationally recognised human rights remedial measures. In 2005 it was transformed by UNMIK into an entirely local body with a limited jurisdiction only with regard to the acts of the PISG.544

Already in 2004 the Venice Commission proposed that UNMIK establish an independent human rights court and recommended, as an interim solution, the formation of a Human Rights Advisory Panel, which should examine alleged human rights breaches by the two “institutional” sources of potential human rights violations in Kosovo, UNMIK and KFOR.545 Similar concerns with regard to the establishment of a human rights mechanism in Kosovo were expressed also by the Parliamentary Assembly of the Council of Europe in 2005.546

These recommendations and concerns have materialised in UNMIK Regulation 2006/12 on the establishment of a Human Rights Advisory Panel, as a provisional body during the term of UNMIK’s mandate, which will render determinations in respect of complaints from persons or group of individuals claiming to be the victim of a violation of their human rights by UNMIK.547 The Panel may deal with a matter, only after it determines that all other available legal remedies for review of the alleged violations have been exhausted, and moreover the matter has been brought before the Panel within a period of six months from the date on which the final decision was taken.548 The findings of the Advisory Panel, which may include recommendations, are of an advisory nature.549 The SRSG has exclusive authority and discretion to decide whether to act on these findings.550 UNMIK Regulation 2006/12 provides for an adversarial procedure before the Panel in two stages: firstly, the examination of the admissibility of the complaint, then, if the complaint is declared admissible, an examination of the merits of the complaint. The procedure may lead to an opinion, which is sent to the SRSG and which may contain recommendations. The rules of procedure of the Human Rights Advisory Panel are based on the rules of the ECtHR.

The Human Rights Advisory Panel has jurisdiction over complaints arising from facts which occurred earlier than 23.04.2005.551 The final deadline of 31.03.2010 was established as a cut-off date for the submission of complaints to the Panel552. The rationale behind the deadline could be found in the reduced role and administrative capacities remained with UNMIK as a result of its reconfiguration in the light of new developments in a post-independence Kosovo.

543 UNMIK Regulation 2000/38. 544 UNMIK Regulation 2006/6 and 2007/15. 545 European Commission for Democracy through Law (Venice Commission), Opinion on Human Rights in Kosovo: Possible Establishment of Review Mechanisms, CDL-AD (2004)033, www.venice.coe.int/docs/ 2004/CDL-AD(2004)033-e.asp. 546 Parliamentary Assembly of the Council of Europe, Resolution 1417 (2005) on Protection of human rights in Kosovo, 25.01.2005, assembly.coe.int/Mainf.asp?link=/Documents/AdoptedText/ta05/ERES 1417.htm. 547 Although the Panel was established by UNMIK Regulation 2006/12, it commenced its operations only in November 2007. 548 Section 3.1 of UNMIK Regulation 2006/12. 549 Ibid, Section 17.1. 550 Ibid, Section 17.3. 551 Ibid, Section 2. 552 Section 5 of Administrative Direction 2009/1.

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In practice, complainants based their complaints before the Human Rights Advisory Panel primarily upon the articles of the ECHR and its Protocols. As of January 2010 there are 28 complaints before the Panel, where the claimant claims a violation of his right to enjoy an immovable property (in the aftermath of the armed conflict/war), committed by UNMIK. The Human Rights Advisory Panel has adjudicated 20 of these complaints as inadmissible. In other 7 complaints the Panel found that human rights violations were committed, in particular regarding Art. 6, para. 1 and Art. 13 ECHR.553 One other case was adjourned for the purpose of further examinations.554 The Panel adopted (as of January 2010) two opinions on merits, whose subject matters are outside the scope of this research.

Kosovo had until 2009 no constitutional court555 to consider applications for violations of human rights committed by national public authorities. The Constitutional Court was established in January 2009 pursuant to the Constitution of Kosovo. The Court may consider an application from an individual, only after exhaustion of all legal remedies provided by law (see Section 2.1.2.). The competences of the Constitutional Court do not overlap with those of the Human Rights Advisory Panel, because both institutions review human rights violations committed by different authorities, i.e. Kosovo public authorities and UNMIK.


The armed conflict/war in Kosovo and, moreover, what the OSCE later called the “impending property crisis”556 did not take in surprise the international community. The previous conflict in BiH and experience drawn there regarding post-conflict property restitution, as an element closely linked to returns, had taught the international community’s legal advisers various lessons. These latter served to help to draft and to improve the mechanism used in Kosovo. Nevertheless, the Kosovo model of restoring property rights after the armed conflict/war reflects the particular circumstances in which it operates and therefore has its own implementation problems.

At the very beginning the property restitution process was characterised by a slow start, linked with a first management of the HPD/HPCC by UN-HABITAT from Nairobi/Kenya, where bureaucratic impediments and a lack of institutional experience in mass claims were compounded by geographical distance, causing therefore the loss of precious time in the early days of the intervention.557

A negative impact on the implementation’s problematic had the complicated legal framework applicable in Kosovo (see Section 1.2.). In the domestic context a mixup of laws, regulations, administrative instructions and court practices combine to create an impenetrable system for determining contests over immovable property ownership. In addition, international human rights standards are applicable to property rights in domestic law. The property laws are scattered through several legal texts, regulate different aspects of property rights, and often refer to institutions which no longer exist. Thus the legal framework presents a very difficult one to work with. Fortunately, UNMIK had the advantage of full powers over the administration, the legislative and the judiciary. The SRSG had full authority to enact and suspend legislation. For these reasons, there were at least no controversial approaches in the lawmaking process, however, due to political reasons, this process was protracted. To illustrate this: it took

553 V.Z. against UNMIK, decision 25/08 of 15.07.2009; N.M. and others against UNMIK, decision 26/08 of 05.06.2009; Petko Milogoric against UNMIK, decision 38/08 of 22.05.2009; Milisav Zivaljevic against UNMIK, decision 58/08 of 06.06.2009; Dragan Gojkovic against UNMIK, decision 61/08 of 04.06.2009; Danilo Cukc against UNMIK, decision 63/08 of 06.06.2009; Slavko Bogisevic against UNMIK, decision 69/08 of 06.06.2009. 554 Olga Lajovic against UNMIK, decision 09/08 of 16.07.2008. 555 After the end of the war in 1999 and after Kosovo had been placed under the UN administration, the Constitutional Framework for Provisional Self-Government of 15 May 2001 provided for the establishment of the so-called Special Panel of the Supreme Court on matters related to the Constitutional Framework (Section 9.4.11 of UNMIK Regulation 2001/9). This institution was never established and never became operational in practice. 556 OSCE Mission in Kosovo, The Impending Property Crisis in Kosovo, 2000. 557 In 2002, the responsibility was transferred to the United Nations Operations Service (UNOPS).

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more than three years for UNMIK to make a decision on the form of KPA. Then, once the decision was made by promulgating the first Regulation (UNMIK Regulation 2006/10), the UN administrators changed their mind and suspended the regulation to replace it with a new one (UNMIK Regulation 2006/50) in less than six months. This was for sure counter-productive and showed that decision-making was not at all expedient and coherent.

The initial exclusion of agricultural land and commercial property from the restitution process, which provoked an unnecessary delay that was only addressed six years later, also needs to be seen in this context. The decision to define the types of claims as only residential excluded the possibility of claiming agricultural and commercial properties that had been unlawfully occupied (with the exception of those cases in which such immovable property was associated to a claimed residential property). The example of BiH, where legislation was amended to ensure that both, non-residential and residential property rights could be subject to claims was, inexplicably, not followed. Such an important omission would later on prove to be unwise. The fact that agricultural fields were unlawfully used and or constructed upon was seen as an impediment for displaced persons to return to their homes, because they would be unable to restart their economic activities. Another section that was left out by the drafters of the legislation was the landless inhabitants of informal housing settlements (RAE communities), who had been living in conditions of informal property tenure for decades. The majority of the inhabitants of these informal settlements had no registered property titles. Informal, or illegal, neighbourhoods of these communities had been systematically destroyed upon the returns.558 Despite the existence of international human rights standards to protect persons living in informal property tenure from forcible evictions, informal dwellers had no effective protection under the HPD scheme.

The delay in the implementation of the rental scheme for the properties under HPD administration should be mentioned here as a further implementation problem. The legislation foresaw the possibility of charging the temporary occupant with a monthly rent that would then be paid to the displaced property rights holder. However, this provision was not implemented until April 2006, when the successor of the HPD, the KPA, launched a rental scheme for the properties under its administration. The implementation of the scheme seems to be uneven.559 With regard to the compensation scheme, due to the difficulty of collecting monies to fund them, as of October 2009, some 258 claims were pending implementation under Section 4 of UNMIK Regulation 2000/60, of which 142 are category C claims which require compensation to be paid to the claimants for loss of property right.

Political obstacles hampered the repossession of properties successfully claimed by Kosovo Albanians and the implementation of respective HPD/KPA decisions in the northern (Serb dominated) part of the ethnically divided city of Mitrovica.560 The administration of these apartments continues regardless of the wish of the successful claimants to repossess them. The responsible local authorities in the northern part of the city did not resolve the potential need for alternative housing of persons who are illegal occupants of properties. The UN refused to provide police assistance for evictions, due to the volatility of the area and the likelihood of riots. It is hoped that progress can be achieved in this regard and that a different approach is adopted by EULEX.

The implementation of KPA’s mandate is often hampered by political problems as well. After Kosovo’s independence the legislation on KPA was amended as part of the requirements of the Ahtihsaari Plan, which substituted the SRSG by the International 558 The most egregious example was the Roma Mahala of Mitrovica, a neighbourhood of approximately 5,000 persons, situated south of the Ibar river in the divided city of Mitrovica, which was destroyed in the presence of KFOR troops in June and July of 1999 by Kosovo Albanians. 559 In November 2008, there continued to be a large number (4,183) of properties under administration, the majority of them not subject to the rental scheme. In the majority of the cases (3,195 or 76.3%), the successful claimant had asked for temporary administration. The rest (988 or 23.7%) were properties administered ex officio through the inventory process of abandoned property. 560 According to KPA, from a total of 850 cases pending eviction as of May 2009, 630 were in Mitrovica.

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Civilian Representative (ICR). The signature of this amendment by the President of Kosovo, precipitated a protest by the authorities in Belgrade, who closed the KPA offices in Serbia proper. The government of Serbia also stopped providing access to the displaced cadastral records from Kosovo. By doing so, it deprived the mass claims mechanism of an essential tool to ensure communication between the claimants and the KPA and additionally to allow the verification of property titles, objects of claims. On the other hand, the KPA institution is overburdened, struggling to deal with a workload that is almost four times higher than originally estimated: The KPA has so far received (up to April 2009) 40,304 claims related to private immovable commercial and agricultural property, largely from the Kosovo Serb community. So far, the KPCC has decided on 18,799 claims. Taking into account the current pace of claims adjudication, it seems that the process will need more time for completion than expected.

Instances of interference by the domestic courts with the work of the HPD/HPCC took place throughout its mandate. Based on the legislation, the HPCC could “refer issues arising in connection with a claim” which were not within its own jurisdiction “to a competent local court or administrative board or tribunal”.561 Courts often reached conclusions on these issues that competed with HPCC findings and left all parties without an effective resolution of their claim. Training of judges by the Kosovo Judicial Institute, as a result of SRSG intervention, helped address some of the problems.

3.2.5. Situation of people – or legal claimants – who left the State and are not considered nationals anymore or have never been such

The persons/legal claimants targeted by the legislation can be classified in those who had been residents of Kosovo and, due to the conflict, left Kosovo (more specifically, the FRY) and changed their nationality, as well in those ones who were never nationals of FRY, but had acquired real estate in Kosovo (foreigners).

Neither SC Resolution 1244 nor the relevant legislation regarding property restitution/compensation in the aftermath of the armed conflict/war contains provisions dealing with this distinction or any distinction based on nationality. Rather, the main objective of the restitution/compensation process conducted in Kosovo was the restoration of the status quo before the conflict. Thus the legislation protected all persons, who were in lawful possession of their properties before the conflict.562 Had there been a limitation of property restitution/compensation to persons with a specific nationality, this would have violated the principle of the equality before the law enshrined in Art. 26 ICCPR and would have conflicted with the decision of the Human Rights Committee in Simunek, Tuzilova and Prochazka v. Czech Republic.563

Moreover, the good practices of restitution processes conducted worldwide indicate that restitution rights should not be subject to a person's citizenship, ethnicity or place of residence. Claims should be allowed by any person with a legitimate claim, notwithstanding any other criteria.564

Based on these assessments and considering that the process in Kosovo was conducted directly and only by the international community through UNMIK, there are no logical grounds to believe that a group of persons with a certain nationality has been discriminated against.

561 Section 22.1 of UNMIK Regulation 2000/60. 562 Section 2.6 of UNMIK Regulation 2000/60. 563 See HRC, Simunek, Hastings, Tuzilova and Prochazka v. The Czech Republic, Communication No. 516/1992, U.N. Doc. CCPR/C/54/D/516/1992 (1995).

564 International Displacement Monitoring Centre/ Norwegian Refugee Council, The Right of IDPs to return home and property restitution, www.internal-displacement.org. See also Leckie S. (ed.), Returning Home: Housing and Property Restitution Rights of Refugees and Displaced Persons, Ardsley, 2003.

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4. Financial consequences of restitutions/compensations 4.1. Official statistics and state budget Official statistics on the financial impact the property restitution/compensation process had or could have at the national level (budget) are not available. Respective evaluations or estimations from the side of the international community seem also to be missing. There is yet no voice in the annual state budget related to the compensation of immovable properties (since still no legislation has been adopted with regard to the compensation scheme).

In fact, the mechanism set up to ensure housing and property restitution (KPA) is separated from the multi-stakeholder structure, which organises the returns process (led by the Government of Kosovo and coordinated by the Ministry for Communities and Returns). The budget and the overall capacity of the current Ministry for Return and Communities remains insufficient to proceed with the implementation of documented return projects. The international community (through international organisations and NGOs) has widely financed and still continue to play a crucial role in funding the process of returns in Kosovo.

By analyzing the Kosovo consolidated budgets (2002-2009) one can ascertain that the amounts allocated to KPA or the Ministry for Communities and Returns are not further specified (in terms how much monies go to the institution itself e.g. for staff and how much are destined to the restitution/compensation process or returns). This makes it difficult to find out the sum each of these institutions spends respectively for restitution/compensation or returns.

Different figures and statistics taken from the SRSG’s regular reports indicate that there has been systematic funding to sustain returns of displaced persons after 1999 by the Kosovo consolidated budget and PISG. Accordingly, the funding allocated in 2002 amounted to 7 million EUR and was increased to 10, 5 million EUR in 2004 and 2005, whereby in 2005 an additional sum of 2, 2 million EUR from the annual budget was allocated for the reconstruction of houses damaged or destroyed in the March 2004 riots. The 2006 Kosovo consolidated budget included only 417,000 EUR for the completion of the reconstruction and compensation programmes, which was considered insufficient. In the same year PISG have allocated 8, 5 million EUR for returns in the 2006 consolidated budget, remaining the biggest single funding agency. To support the completion of the March 2004 reconstruction and compensation programme, other 550,000 EUR were transferred from the Government’s contingency funding, adding to 417,000 EUR already available. In 2007 an amount of 5, 2 million EUR have been allocated in the budget for returns projects. Although the funding allocated to the Ministry of Communities and Returns increased to 7, 14 million EUR for 2008, lack of funding remained an important obstacle to returns. In 2009, the budget of the Ministry for Communities and Returns was 7, 5 million EUR of which 3 million EUR was dedicated to community development, and the rest to return and local integration in Kosovo.

4.2. Estimations by international organisations and interest groups According to UNHCR statistics, 205, 835 persons from Kosovo are displaced in Serbia (as of August 2009) and 19,724 are displaced within Kosovo (as of October 2009).565 More or less the same figures on displaced persons use UNIJA, an umbrella organisation of 12 Kosovo Serb IDP associations, or PRAXIS, a Serb NGO, which provide free legal aid and counselling to the displaced. According to the Serbian Commissariat for Refugees (SCR) there are around 210,000 IDPs from Kosovo in Serbia and a further 19,000 are displaced

565 Statistics available under www.internal-displacement.org/8025708F004CE90B/(httpDocuments)/ 37CD83AEBCCA7B68C125766D004B9EFE/$file/01-UNHCR+Representation+Serbia+stats+01+ Aug+09.pdf. www.internal-displacement.org/8025708F004CE90B/(httpDocuments)/7CD492 E663EF7BA9C125766A002EE7BC/$file/Statistical+overview+October+09.pdf (accessed in January 2010).

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within Kosovo (as of July 2009).566 The same SCR confirms that official estimates are likely to be low, since many displaced RAE have been unable to obtain IDP status due to their lack of documentation and inability to access registration procedures. PRAXIS has estimated that the total number of RAE in Serbia is between 40,000 and 45,000, half of whom are not registered as IDPs. If this were so, the total number of Kosovo IDPs in Serbia would therefore be closer to 230,000.

However, other organisations indicate different figures. For example the Belgrade-based Kosovo Coordination Centre (CCK), which is the Serbian administrative body responsible for Kosovo affairs, published a detailed report in January 2003, which gives a figure of 110, 287 Kosovo Serb IDPs in Serbia.

One has to bear in mind that the only official figure on displacement of Serbs from Kosovo comes from a registration exercise carried out by the Serbian government in early 2000. The published results stated that there were 187, 129 IDPs from Kosovo in Serbia. The UNHCR’s own documents repeat this figure.

In such conditions of confusing figures only a re-registration of IDPs would give a more transparent and accurate picture and would clarify the issue, but the Serbian authorities are so far reluctant to organise a new registration exercise.

Nevertheless, relying on the recent UNHCR statistics, the number of returns in Kosovo still remains very low. The sustainability of returns has been also highly contested. According to the Government of Serbia and to UNIJA, only around 5,000 IDPs have returned sustainably in Kosovo.567

The main reasons behind these low return figures and the lack of sustainability stems, according to the Ombudsperson Institution, from the daily difficulties faced by minority communities.568 These include the volatile security situation, limited freedom of movement, restricted access to public services, lack of economic prospects in the area of return and difficulties repossessing property or rebuilding houses. Another reason for the limited number of returns is the fact that, after a decade of displacement, some IDP families have decided not to return and would rather integrate in their place of displacement.

A key obstacle to durable solutions remains the difficulty in repossessing property. With regard to restitution/compensation procedures and adjudication, PRAXIS criticises that the performance of HPD/HPCC was marked by a legally questionable procedure. PRAXIS stressed that “notwithstanding the legal obligation to “deliver copies of the reply to Claim to the other parties”, HPD/HPCC had not delivered to the C-claimants the respondent’s response or the submitted supporting evidence”. Moreover, the negative primary HPD/HPCC decisions were patterned and insufficiently explained.569 The restitution process has been slow and is far from complete. Out of 40,000 claims submitted to the KPA, some 18,000 had been decided as of September 2009 and 6,700 of these decisions had been acted upon. Of those, almost 4,000 properties have been put under KPA administration by owners who do not yet want to return. Over 2,400 of these owners have expressed their intention to join a rental scheme under which the KPA lets property on their behalf. UNIJA and PRAXIS complain also that after evictions, properties have often been looted and vandalised by departing occupants. Very few of those who have ransacked property have been prosecuted. Some properties have been re-occupied, forcing owners to embark on time-consuming litigation.

The Ombudsperson observes that the fact that the ICESCR has, despite the criticism of international human rights experts and NGOs, still not been integrated in Art. 22 of the

566 IDMC interview with SCR, May 2009. See IDMC Report, Serbia: IDPs still seeking housing solutions and documentation to access their rights, 29.12.2009. 567 IDMC interview with UNIJA and Ministry for Kosovo and Metohija, May 2009. 568 Ombudsperson Institution, Eighth Annual Report (2007-2008) addressed to the Assembly of Kosovo, 21.07.2008, pp. 47. 569 Praxis, Comments on UNMIK's Protection of ICCPR-guaranteed Rights in Relation to Certain Aspects of Private Immovable Property Claims Resolution in Kosovo, 2006, p. 4

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Constitution of the Republic of Kosovo as an international human rights treaty that is directly applicable in Kosovo, continues to be a constant concern. This means that some of the rights contained in the ICESCR, such as the right to adequate housing or the right to adequate working conditions and a number of social and economic rights continue to lack a proper and consistent legal protection.

4.3. Economic and social consequences of restitutions/ compensations The institution of restitution of property rights is rooted solidly in international law and certainly has the potential to improve possibilities for refugees/IDPs return in some circumstances. In Kosovo, given the history of massive departure of Kosovo Serbs and other minorities and the usurpation of their property, there have been strong arguements in favour of relying on the option of restitution rather than compensation to encourage return.570 After the lessons learnt from BiH, the restitution and returns in Kosovo were kept as separate processes. This means restitution was not seen as a means to condition returns (even though it was clear that restitution was at least a necessary precondition to return). It was rather employed as a means to provide IDPs with durable solutions to their dislocation.

Considered from a social perspective, the right to restitution has the potential to correct some of the past wrongs and move the society closer to some form of reconciliation, in terms of rebuilding civic trust between citizens and the state and among citizens themselves after a period of conflict. The returns can contribute to rebuild Kosovo as a multiethnic society and at the same time preserve its demographic structure. The displacements of population since the armed conflict ended, and the large migrations of Kosovo Albanians into urban centres have changed drastically the landscape. As a consequence, with the exception of the divided town of Mitrovice/Mitrovica, Kosovo has no longer any substantial urban Kosovo Serb or RAE communities. Certain areas, such as the Peje/Pec region, the Gjilan/Gnjilane region and parts of central Kosovo have seen a drastic reduction in their Kosovo Serb and RAE populations.

Even if restitution was chosen as the primary remedy (in comparison to compensation), the return process has been very slow. There has been a continuously declining trend of returns per year since 2003 and ten years after the conflict, only a small number of internally displaced persons have returned to their pre-war homes. Indeed, other conditions such as lack of security, restricted freedom of movement, lack of economic prospects and difficulties repossessing property or rebuilding houses highly impacted the returns in Kosovo. Further, members of RAE communities face marginalisation and discrimination in the areas of education, social protection, health care and housing. Poverty and unemployment touch them more profoundly than the rest of society. In line with this, a matter of concern constitutes the fact that some of the main economic, social and cultural rights continue to lack a proper and consistent legal protection, since the ICESCR has still not been integrated in the new Constitution of Kosovo as a directly applicable international human rights treaty.

UNMIK drafted and redrafted many strategies and projects to provide for a sustainable return of members of minority communities to Kosovo. One of these strategies is the Manual for Sustainable Return of July 2006. It is based on the principles that returns must be sustainable and that this is only possible, if returnees are able to take a free and informed decision on whether they wish to return or not, and on where they want to return to (preferably their place of origin). The IDPs themselves should be the driving force behind such return, although it is also important that the entire community of the place to where they wish to return is engaged in the process. The Manual foresees a

570 The option of compensation, rather than restitution, has been for example in many former socialist countries of Eastern Europe, the means of attempting to right wrongs committed by socialist regimes in unlawfully expropriation of property with the ECtHR having been particularly active in setting standards for what constitutes sufficient compensation.

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greater involvement of the PISG in the returns process, both at a central and municipal level.

As already mentioned (see Section 1.1. and 4.1.), the return process linked with restitution/compensation of property rights in Kosovo has been one of the most expensive processes the UN and international community has ever undertaken. But if the return and restitution process has been and continues to be widely financed, another obligation, namely compensation, has not yet been tackled. In fact, in line with the policy to support the returning home of the displaced, the legislator opted not to provide for the possibility of monetary compensation for the majority of property claims, with the exception of those cases in which competing claims on discrimination (‘A’ claims) and displacement (‘C ’ claims) were present. On the other hand the donors were probably unable to put up the amount of cash necessary to fund a large scale compensation scheme.

However, avoiding the issue of compensation altogether did not make the potential claims disappear. Thus, in 2004, Serb IDPs (and also a smaller number of Kosovo Albanians) lodged in the regular courts circa 17,000 claims for compensation, based on the physical property damage suffered in the aftermath of the conflict.571 The majority of these claims were lodged against UNMIK, KFOR and PISG. UNMIK, which together with the NATO forces had given itself immunity from any domestic judicial action, responded by putting the claims aside.572 The UNMIK Department of Justice instructed the courts not to process the claims pending an adequate solution. Such adequate solution, however, did not materialise and the right to a trial of these claimants was violated.

Up to date there is still no compensation scheme provided from the legislator. Assessing the property value in a post-conflict setting seems to be a complicated matter. However, the problem remains and represents a significant financial burden to be handled. Since the majority of them represent claims against UNMIK and, moreover, Kosovo internal budgetary sources are insufficient, it is likely that this burden will weight again to the shoulders of the international community.

571 OSCE Mission in Kosovo report, Eight Years After: Minority Return and Housing and Property Restitution in Kosovo, June 2007, p. 30. 572 UNMIK Regulation 2000/47.

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CONCLUSIONS AND RECOMMENDATIONS

This study has analysed property restitution following the regional conflict/war in Yugoslavia from the perspective of international and EC law as well as from the national legislation of BiH, Croatia and Kosovo. Conclusions and recommendations for each Chapter are given below.

International/EU

The fact that there is no general consensus among scholars on whether there exists a right to property restitution/compensation in international law, though restitution/compensation can result from the violation of several human rights, points to the desirability of including such right by means of codification in major human rights treaties. The ECtHR has awarded very high sums of compensation in several cases dealing with expropriation in communism in Albania, where the domestic law allows for valuation by the market value. This example could be applied also with regard to other countries. Moreover, it should not depend exclusively on whether domestic law provides for restitution/compensation so as to avoid that different standards develop for different countries, even though the market value e.g. in urban areas might be comparable. Moreover, the example of the UN HR in including non-nationals should be followed. Also, the lack of ratione temporis should be interpreted narrowly so as to contribute to a functioning of land markets.

The main peace agreements (for BiH the 1995 Dayton Peace Agreement, for Croatia the 1995 Erdut Agreement and for Kosovo the 1999 draft Rambouillet Accord and the Ahtisaari Plan) have included provisions on restitution/compensation, although implementation has lagged behind.

Therefore, the international community should support capacity building of responsible structures and devise mechanisms for the enforcement of decisions.

The EU plays an important role in reconstruction and institution building in the Western Balkan countries through its external aid programmes. Since 1991 € 6.8 billion have been committed to the Western Balkans through various assistance programmes.

Such continued assistance by the EU is essential for capacity building and anti-corruption, which will eventually lead to a functioning land market based on the rule of law. The Bonn-powers of the High Representative/EUSR in BiH and the special powers of EULEX KOSOVO in Kosovo enable the conditioning of aid to concrete instances of progress.

Restitution should be the first solution and compensation awarded only, where restitution is not possible. Restitution should not be considered impossible, if property acquisition was not bona fide.

Secondary occupants with legally valid claims on acquired rights should be taken into account, at least with the provision of some form of compensation and/or of alternative accommodation.

Restitution claims should not be rendered void due to the passage of time, but extend to heirs of property as well as non-citizens and non-residents.

Art. 345 TFEU does not preclude a Community competence for property law. On the contrary, it is conceivable that the Community goal of a functioning market economy allows for regulation of the land market and thus for certain restrictions on private property in Member States, in aiming to achieve a greater degree of security of tenure.

The following legislative acts and informal coordination actions could improve property issues, especially restitution/compensation of immovable property, following communism or the Yugoslav conflict/war and thus contribute to a functioning land market:

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A large scale nationalisation of real property in any case would violate Community law, as it would abolish the concept of private property as such and so run counter to the spirit of the Treaty. Therefore, legislation on restitution of nationalised property must correspond with the spirit of the Treaty as well: Thus the aims of the Union, such as establishing a highly competitive social market economy (Art. 3 TEU), could be seen as determining national legislation on restitution, which, as a result, would need at least to present no obstacles to the development of a functioning land market.

A lack of legal security of tenure for the purchaser of the property may constitute a restriction of the exercise of a fundamental freedom and infringe Community law. Moreover, the freedom of establishment and the principle of non-discrimination require the equal treatment of citizens of other Member States, where national legislation limits restitution of expropriated property to the nationals of the restituting State.


If one would cite the words of the High Representative for BiH once more, namely that approximately 1 million people returned to their pre-war homes, most damaged buildings were reconstructed and the countrywide property repossession rate in 2003 rose above 90%, it seems that any recommendation would be superfluous. Surely, the most interesting time period relating to restitution of property abandoned during the war was from 1999 until 2003. In this time period the international community, i.e. the High Representative in BiH, imposed, amended and finalised the legislation on restitution (so-called Property Laws) and the Human Rights Chamber for BiH as well the Constitutional Court of BiH set the standards for solving the property issues following the regional conflict.

However, some further improvements are possible.

It is necessary to harmonise the legislation on state and entity level, as well as to issue the revised final version of certain legal acts which were repeatedly changed. For the competent authorities it is highly difficult to interpret and implement laws changed several times. An eventual further amendment should obligatorily provide for transitory and concluding provisions in order to avoid any retroactive effect.

If an improvement of the current legal framework or the enactment of new legal acts was necessary and domestic authorities were reluctant to perform it, the High Representative should not hesitate to apply the so-called Bonn-competences. However, for the imposition of laws it is also necessary to have competent support of domestic legal experts in order to avoid discrepancies with the current legal order in BiH.

The exit strategy of the international community in general, but particularly regarding the financial support, has to be reconsidered.

In BiH the finalisation of the transformation process and the reform of the property order should have top priority. The disposal with state-owned property which could be

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subject to denationalisation should be definitely terminated, but not by a prolongation of the deadline for the temporary prohibition of disposal with this property, but by the final identification of the owner. The preparation of the legislation on denationalisation should be considered as a long-term and very serious project and not as some ad hoc action. The situation, as it has occurred with Property laws, which have not been well prepared so that they had to be frequently and drastically amended, should never be repeated again. Such changes lead to major uncertainty in the highly sensitive property relations.

This research has shown that often official statistics or data were not available. It would be necessary to establish the relevant common data bases on state level (value of target property, number of submitted and realised claims on restitution, assessment of financial consequences etc.).

A more effective mechanism for the implementation of the decisions of the Human Rights Chamber for BiH, Constitutional Court of BiH, and the ECtHR should be established.

Croatia

The legal framework providing for private property issues in the Republic of Croatia following the regional conflict is a very complex one. There is a series of separate pieces of legislation of different types (laws, regulations, Government decisions, programmes, conclusions), which, within the complex issue of the return of refugees and displaced persons, reconstruction, development and the like, provide for many different aspects of the realisation and exercise of ownership rights resulting from the regional conflict. Legislation is frequently amended. The amendments have a significant impact on the scope and content of the rights of owners and users of immovable property, and on the change of proceedings in which such rights are exercised and protected. The administration of these complex regimes, in the course of transition from the previous to the new systems, requires special legislation.573 In addition, the provisions of general legislation on ownership and obligations are applicable, when ownership rights are exercised. The application of general legislation of substantive law and the law of obligations is of subsidiary nature. They are applied in all aspects not expressly provided for in separate legislation. Such a complex network of legal acts makes it even more difficult for original owners trying to protect and exercise ownership rights. In particular, it is hard to understand the many facets and their interconnections of this complex area. Furthermore, some doubts arise about the application of legislation by administrative and judicial bodies in the area of the interpretation and application of individual provisions.574

The amendments to the legislation on property law rights and relationships, in relation to immovable property in the territory of the regional conflict, are the result of a process of development and of changes in social, economic and legal relationships, which required the reform of the previously adopted legislation. Frequent amendments and the adoption of new legislation have undoubtedly been the result of the effort and positive commitment of the Republic of Croatia to simplify and to enhance the resolution of ownership disputes arising from the regional conflict and to extend the protection to all holders of ownership rights, as well as to maintain uniform criteria and uphold the principle of the protection or property rights.

If the need for new legislative solutions continues to exist, it is recommended that a consistent system of legal norms is established, which will enable a systematic and integral resolution of disputed relationships, without frequently made amendments.

573 Although the new AASSC/2008 has already entered into force, the proceedings for the return of temporarily transferred property and the compensation for sustained damage resulting from the use of property, are brought to an end pursuant to the provisions of the former AASSC (Art. 33/2 AASSC/2008). The question is, however, on the basis of which provisions the new applications for return should be decided, because the AASC/2008 does not contain any express provisions regarding that issue. The only conclusion that can be made is that the new applications can be solved only by general rules of substantive law dealing with the protection of ownership. 574 Reference to the Articles written by Zrilić.

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Together with the adoption of the amendments to existing legislation, it is recommended that official consolidated texts are published.575 576

Complex procedure of repossession and protection of property

The acceleration of proceedings for the return of temporarily transferred property, along with the provision of corresponding models of housing care for temporary users, and the increase in the competencies of administrative and judicial bodies involved in such proceedings could be achieved by intervention in the procedural rules applied to the proceedings for repossession.

As we have already said, the repossession of immovable property by original owners is processed through a very complex network of several proceedings (administrative, judicial and enforcement). Separate legislation does not provide for a separate procedure for administrative and judicial bodies, apart from the express stipulation that the courts must act summarily.577

It would be very useful to consider the possibility of formalising these proceedings in separate legislation in order to speed up the procedure of decision-making (e.g. the rules on legal remedies, on proving relevant facts, on preconditions for the postponement of enforcement, etc.).

For example, a fact that is relevant for the initiation of the proceedings for return is to prove ownership of immovable property. According to the general rule of property law, this fact is proved by an excerpt from the land register or by some other public documents (e.g. deed of inheritance). However, in concrete proceedings, repossession of immovable property is usually requested by individuals who often are no longer in possession of such documents and who cannot prove their ownership, because the respective land register has not been updated. To initiate proceedings with success, they must first initiate separate proceedings to obtain documents by which they can prove ownership.

It would be useful to take a uniform position in such cases and to decide which documents can be used to prove ownership, or to consider the possibility that, in the proceedings for repossession, the issue of ownership be determined prior to the initiation of court proceedings.

It would also be useful to consider whether documents relating to enforcement, in accordance with the Enforcement Act, could be admissible in proceedings for repossession, so that enforcement proceedings could be conducted at the same time (when the necessary preconditions have been fulfilled) on the basis of such documentation, without the need to initiate separate litigation proceedings to obtain an enforcement document.578

Separate legislation governing secondary requests by original owners and temporary users

Separate legislation governing property issues following the regional conflict do not expressly set forth how owners and temporary users can realise their subordinate claims

575 A good example is the consolidated text of the AASSC (Official Gazette NN 26/03) published by the Legislation Committee of the Croatian Parliament in 1996. The Act has been amended as many as 8 times. 576 Better understanding and orientation in legislative texts, as well as a harmonised application of individual legal provisions can in practice be achieved by the publication of reliable interpretations of different provisions. Cf. the reliable interpretation of Art. 14 of the Act on the Status of Refugees and Displaced Persons of 12 March 1999 (Official Gazette NN 29/1999) published by the Croatian Parliament based on Art. 80 of the Constitution of the Republic of Croatia. The interpretation was published because of some ambiguities regarding the obligations of refugees and displaced persons to have to pay compensation for the use of houses and flats owned by third persons and regarding the question of whether the refugees and displaced persons who occupied them were considered as bona fide possessors or mala fide possessors. 577 Cf. for example Arts. 18/6, 31/4 of the former AASSC – consolidated version. 578 In Art. 21 of the Enforcement Act (Official Gazette NN 57/96, 29/99, 42/00, 173/03, 194/03, 151/04, 88/05, 121/05, 67/08) it is laid down which documents can be considered as enforcement documents. It is expressly stipulated that any document can be considered as an enforcement document if it is so defined by the law.

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in relation to immovable property units which have been temporarily used, such as the request for compensation for the management of immovable property during its temporary use, compensation for possible investments in and on immovable property by the temporary user, and the like.

Separate legislation does not expressly prescribe who is responsible for the payment of such compensation. In the amendments to the AASSC of 2002, it was expressly set forth that the state was only responsible for paying compensation for damage suffered by the original owner because of the inability to repossess immovable property after the expiry of the time limits within which a decision on the annulment of the decision on temporary use had to be issued.579 It was also stipulated that the temporary user was responsible for damage caused on or to immovable property580, and that he/she was responsible for compensating suppliers directly for all overhead costs incurred during the temporary use of the property.581

The general rules of property law and the law on obligations apply to all other (so-called subordinate) claims by the owner or a temporary user.582 However, the question remains as to whether the application of these rules to the specific relationships between original owners and temporary users is appropriate and just.

There is also a series of questions concerning the appraisal of grounds for requests, which relate to the circumstances of, and reasons for the introduction of temporary management of real estate; who should be responsible for the payment of such claims? (the state which established such temporary management of immovable property? the municipality or town which took the possession of immovable property? the temporary user or the owner?); when the limitation period starts to run in respect of judicial process of such claims, etc.

It would be very useful to set forth all these issues in an express manner taking into consideration all specific circumstances at the time of the introduction of these special legal relationships relating to temporarily occupied immovable property.

A system should be established to encourage all interested parties to try to resolve their disputes out of court, and by amicable settlements reached in conciliation proceedings in conformity with the Conciliation Act.583

Examples of 'best practice'

The amendments of the AASSC of 2000 and 2002 were a significant step forward in the organisation of the legal relationship between the original owners, whose property had been given for temporary use in accordance with the TA, and the temporary users of that property. All the provisions containing time limits for the owners to request the return of their temporarily transferred property were removed. A new system was introduced according to which competent state bodies had an ex officio obligation to render corresponding decisions on the return of the occupied immovable property to their original owners’ possession. The procedure of return was uniform regardless of the legislation on the basis of which the property was given to other persons for temporary use. A significant step forward was the fact that the State Prosecution Office also became involved in the proceedings for return or eviction after the decision on temporary use had been annulled. In addition to the original owners, the State Prosecution Office was also authorised to submit a claim for the eviction of temporary users when the necessary preconditions for eviction had been met. The power of the State Prosecution Office to initiate a civil action was particularly important when the original owners, because of insufficient funds or other reasons, were not able to bring such actions, or to finance

579 Cf. Art. 27/4 of the former AASSC – consolidated version. 580 Cf. Art. 18/7 of the former AASSC – consolidat4ed version. 581 Cf. Art. 18/8 of the former AASSC – consolidated version. 582 Cf. for example 164, 165 PA on the legal position of bona fide/mala fide possessors in the case of repossession. 583 Official Gazette NN 163/03, 79/09.

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legal aid, or they did not fulfil the necessary conditions for the provision of free legal aid according to the Act on Free Legal Aid.584

Kosovo

The restitution/compensation process in post-war Kosovo constituted and still constitutes by all means an enormous endeavour for the international community.

In practice, the process undertaken in Kosovo has shown that the resolution of property claims presents only the first phase of the necessary process to restore property rights and does not necessarily imply the return of displaced persons. The reality has been rather the contrary, as a result of the still high rate of properties that are destroyed (not yet compensated) and a low rate of repossession. Instead, IDPs sold their properties during or after the claims process. If they had been offered the choice of receiving monetary compensation, many of them would have taken it. Additionally, the second phase of the restitution/compensation process would require that the remedies awarded are carefully adapted and implemented.

The implementation of final decisions of the HPCC/KPCC throughout Kosovo remains still a major obstacle. Furthermore, the effective restitution is harmed by the fact that IDPs who are granted positive HPCC/KPCC decisions have great difficulty registering their property in the local municipal cadastres, because some of these offices do not recognise HPCC/KPCC decisions, or they request a court decision before doing so. In other instances, locals who have an interest in the property lodge challenges to ownership in the local courts, an action that induces local municipal cadastral offices to refuse to register the IDP’s property until the courts decide. Other IDPs cannot access local municipal cadastral offices and this potentially blocks their attempts to sell their property. Although a framework for implementation in terms of compensation has recently been finalised by KPA, it has not yet been adopted and implemented. Due to these delays, no compensation has thus far been given. This is of course very unfortunate for those claimants who already have a positive decision. The rental scheme providing displaced persons with a monthly payment was only initiated seven years after 1999 and its implementation seems to be uneven.

Finally, the property rights restitution/compensation mechanism did not benefit landless Kosovo RAE individuals. Their homes were destroyed and their land was redeveloped for other purposes, in contradiction with official integration policies. These persons were left without a possibility to exercise their right to return home. The re-establishment of the pre-war situation, the main purpose of property restitution, was designed only for those segments of society with some form of property title. The landless were left landless and displaced.

Suggestions and recommendations are offered as follows:

With regard to the restitution/compensation process:

By enacting the property restitution legislation after the armed conflict/war, the legislator chose as a priority to regulate only the issue of contested properties affected by the armed conflict/war or discrimination laws. The failure to tie in together more aspects of property law and to regulate more comprehensively the property issues could be attributed to the extreme urgent situation of property rights after the end of conflict. Moreover, the applicable legal framework related to property rights is very complex, fragmented and still contains laws inherited from the past, which did not fit anymore the dynamics of the property market.

Therefore, a policy of legal harmonisation and a comprehensive reform of the entire property law sector (and respectively the private law sector) should be conducted and pursued as a priority by the legislator. This would be beneficial to the property rights system in Kosovo and it would help particularly to establish a secure environment for foreign investments.

584 Official Gazette NN 62/08.

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The legislative reform should consider the revision, amendment and harmonisation of the current land register/cadastre laws in the light of modern European standards, based as much as possible on existing legislation. The property records and cadastral archives (those in Kosovo and the ones removed to Serbia) should be harmonised, in a highly authoritative approach, to make possible the verification of property rights, particularly those of IDPs.

Last but not least the reform should not hesitate to address the problematic of denationalisation or restitution of previously (during socialism) expropriated private property owners. This is a process that almost all former socialist countries of Eastern Europe have been going through and should be not postponed.

The compensation scheme accompanied by a property value estimation method should be finalised, as first adopted by the parliament, and then systematically enforced. Additionally, the issue of claims relating to destroyed property should be addressed and financial compensation awarded.

There should be a better system for claiming property rights. Any apparent criminal aspect should be referred to the public prosecution office for investigation, and prosecutors should investigate and prosecute criminal offences related e.g. to fraudulent property transactions or property vandalizing in a rigorous and expeditious manner.

With regard to returns:

The IDPs presence across the region remains one of the key unresolved consequences of the Kosovo war. Firstly, a re-registration of all IDPs should be conducted in joint effort of international and local actors, which would give a more transparent and accurate picture on returns and would foster the policy of substantive and durable solutions. The new database recently established by the Ministry of Communities and Returns should be comprehensively and consequently updated, in order to manage better the IDPs requests.

The Kosovo Government and the members of Parliament should consider the formulation and enactment of legislation focused on full and unlimited respect for the free exercise of voluntary return without a time limit. The ICESCR should be incorporated in the Constitution of Kosovo as directly applicable, to afford a better legal protection of economic, social and cultural rights, in particular those of IDPs.

Finally, any improvement in the situation of IDPs requires the establishment of constructive dialogue between Serbia and Kosovo. For instance, mutual acceptance of documents would facilitate IDPs’ access to inter alia property rights and improve their daily lives.

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ANNEXES 1. Definitions of reparation, restitution, compensation, satisfaction in international law There are several definitions of the terms “reparation”, “restitution”, “compensation” and “satisfaction” in international law.

Reparation The Permanent Court of International Justice (PCIJ), in its judgement of 13 September 1928 in the case concerning the factory at Chorzów, held that "... reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed, if that act had not been committed”.585 The Articles on State Responsibility of the International Law Commission (ILC) define “full reparation”, which constitutes an obligation of the responsible State for the injury caused by the internationally wrongful act (Art. 31), as restitution, compensation and satisfaction, either singly or in combination” (Art. 34).586

Restitution The term “restitution” refers to an equitable remedy, or a form of restorative justice, by which persons who suffer loss or injury are returned as far as possible to their original pre-loss or pre-injury position. The goal of restitution is to restore the conditions that existed prior to a violation, and often involves the return of homes, artefacts or land arbitrarily or illegally confiscated.587 The Articles on State Responsibility of the International Law Commission (ILC) hold that restitution is “to re-establish the situation which existed before the wrongful act was committed, provided and to the extent that restitution: (a) Is not materially impossible; (b) Does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation” (Art. 35). Restitution policies are concerned with rectifying expropriations or removal of property where no, or inadequate, compensation was paid; situations where the expropriation was discriminatory, and; situations where the expropriation was unjust. Restitution can be accomplished in a manner fully consistent with internationally recognised human rights standards, and in such a way that detriment to either the original inhabitant or the secondary occupant can be minimised.588

In another meaning restitution is understood to include also compensation. Restitution in integrum would be clearly appropriate to enable return, or relocation elsewhere. It includes compensation to the victims for injury, loss, damage, or expropriation of property and other rights upon flight. Compensation on its own is limited to redressing the actual injury or material damage resulting from a wrongful act, such as the loss of property. The compensation must be adequate and can either be monetary or be in kind.589

Compensation Compensation involves monetary payment for material or moral injury, The term “compensation” refers to a legal remedy by which a person receives monetary payment for harm suffered, for example resulting from the impossibility of restoring the person’s property or house.590 Usually compensation is seen as subsidiary to restitution. Thus the PCIJ held that “[r]estitution in kind, or, if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it - such are the principles which should serve to determine the amount of compensation due for an act contrary to

585 Chorzow Factory Case, P.C.I.J. Reports, Series A, No. 17, pp. 46-48. 586 Annex to GA resolution 56/83 of 12 December 2001. 587 Bradley, ‘Reparations, Reconciliation and Forced Migration’, op.cit. 588 Grover and Flores-Bórquez, ‘Restitution and Land Markets’, op.cit., 4. 589 Beyani, Ch., ‘A Political and Legal Analysis of the Problem of Return of Forcibly Transferred Populations’, Refugee Survey Quarterly, 16(3), 1997, 25. 590 Explanatory Notes on the Principles on Housing and Property Restitution for Refugees and Displaced Persons, para. 69.

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international law" (Collection of Judgements, Series A No. 17, p. 47). Moreover, the Articles on State Responsibility of the International Law Commission (ILC) hold that the State responsible for an internationally wrongful act is to compensate for the damage caused thereby, insofar as such damage is not made good by restitution; compensation shall cover any financially assessable damage including loss of profits insofar as it is established (Art. 36(1 and 2)). Compensation may be provided in lieu of housing and property restitution in countries with forced migration. However, most of the countries concerned simply cannot afford to provide financial compensation. In some cases, international donors may provide financial support for compensation. When compensation is made available, specialised, ad hoc claims commissions are an important mechanism to evaluate claims and distribute funds to successful claimants.591

In another meaning compensation is understood to include also restitution. In the context of human rights, the Inter-American Court came to the conclusion that compensation must attempt to provide restitutio in integrum for the damages caused by the measure or situation that constituted a violation of human rights. The desired aim is full restitution for the injury suffered. As the Court observed, this is something that is unfortunately often impossible to achieve where the nature of actual damage is irreversible- the destruction of houses (unless others are built) is a relevant example. Under such circumstances, the Court suggested that it is appropriate to fix the payment of "fair compensation" in sufficient broad terms in order to compensate, to the extent possible, for the injury suffered. By analogy, where return to places of previous occupation may not be possible, restitution may apply to provide resettlement and make good the loss of land use, property rights, including land and houses together with access to resources based on such land. It may also be used to acquire lands of quality suitable for future needs and development provided that legal status of ownership is at least equal to that of the lands previously occupied.592 In the Miskito case, the Inter-American Commission determined that the Nicaraguan Government not only assist in the resettlement of displaced persons who wished to return to their previous lands along the Coco River, but also pay them adequate compensation for the loss of their property. The Commission rejected the arguement that Nicaragua had paid compensation in kind to the people whom it displaced by giving them land, homes, seeds, fertilizers, farm tools, and free medical care.593

Satisfaction Satisfaction addresses non-material injuries through means such as official apologies, assurances of non-repetition of the offence, trials and truth and reconciliation commissions.594 Trials for grave human rights violations, which increasingly replace immunity from prosecution set out in the context of peace agreements or national plans for the transition from dictatorship or military rule to democracy, are perhaps the foremost type of remedy falling under the category of 'satisfaction'. Sometimes satisfaction is mentioned as a remedy subsidiary and in addition to both, restitution and compensation. The Articles on State Responsibility of the International Law Commission (ILC) hold that the State responsible for an internationally wrongful act is under an obligation to give satisfaction for the injury caused by that act insofar as it cannot be made good by restitution or compensation (Art. 37, para. 1). Satisfaction may consist in an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality (Art. 37, para. 2). However, satisfaction shall not be out of proportion to the injury and may not take a form humiliating to the responsible State (Art. 37, para. 3).

591 Bagshaw, op.cit., 212. 592 Velasquez Rodriguez Case, Compensatory Damages (Art. 63(1) American Convention on Human Rights), Judgement of July 21, 1989 Inter-Am.Ct.H.R. (Ser. C) No. 7 (1990). Beyani, op.cit., 25. 593 Report on the situation of human rights of a segment of the Nicaraguan population of Miskito origin, 29 November 1983. Beyani, op.cit., 25. 594 Bradley, ‘Reparations, Reconciliation and Forced Migration’, op.cit.

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The terms are also used in the UN Principles on Housing and Property Restitution for Refugees and Displaced Persons and the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law.

2. Pre-Accession Assistance Envelope for 2009-2011 Multi-Annual Indicative Financial Framework: Breakdown of the Instrument for Pre-Accession Assistance Envelope for 2009-2011 into allocations by country and component595

Country Component 2007 2008 2009 2010 2011

Transition Assistance and Institution Building

49,611,775

45,374,274

45,601,430 39,483,458 39,959,12

8

Cross-border Co-operation

9,688,225

14,725,726

15,898,570 16,216,542 16,540,87

2

Regional Development

45,050,000

47,600,000

49,700,000 56,800,000 58,200,00

0

Human Resources Development

11,377,000

12,700,000

14,200,000 15,700,000 16,000,00

0

Rural Development

25,500,000

25,600,000

25,800,000 26,000,000 26,500,00

0

Croatia

Total 141,227,000

146,000,000

151,200,000

154,200,000

157,200,000

Transition Assistance and Institution uilding B

58,136,394

69,854,783

83,892,254

100,688,099

102,681,861

Cross-border Co-operation

3,963,606

4,945,217 5,207,746 5,311,901 5,418,139

Bosnia & Herzegovina

Total 62,100,000

74,800,000

89,100,000

106,000,000

108,100,000

Transition Assistance and Institution Building

68,300,000

121,993,920

63,339,798 64,484,594 65,828,28

6

Cross-border Co-operation 0 2,706,08

0 2,760,202 2,815,406 2,871,714

Kosovo,

Total 68,300,000

124,700,000

66,100,000

67,300,000

68,700,000

595 Communication from the Commission to the Council and the EP - Instrument for pre-accession assistance (IPA) - Multi-annual indicative financial framework for 2009-2011, /* COM/2007/0689 final */.

150


3. List of legal acts International/EU (Selection)

Treaties Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law (Basic Principles)

Charter of Fundamental Rights of the EU

Comprehensive Human Rights Guidelines on Development-Based Displacement, UN Doc. E/CN.4/Sub.2/1997/7

Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949 (Fourth Geneva Convention)

Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), 213 UNTS 222, (4 November 1950) 46 ETS, First Protocol to the European Convention on Human Rights, 213 UNTS 262, Protocol No. 4, as amended by Protocol No. 11

Convention on the Elimination of All Forms of Racial Discrimination (CERD), 660 UNTS 195, General Recommendation No. 20 Non-discriminatory implementation of rights and freedoms (Art. 5): 15 March 1996 (General Comments), General Recommendation No. 22 on Art. 5 on refugees and displaced persons, 23 August 1996, 49th session of the Committee on the Elimination of All Forms of Racial Discrimination (A/51/18)

Convention respecting the Laws and Customs of War on Land (Hague IV), 18 October 1907

Guiding Principles on Internal Displacement (Guiding Principles or Principles), UN Doc. E/CN.4/1998/53/Add2 (1998)

ILO Convention No. 169 concerning Indigenous and Tribal Peoples

International Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), UN Doc. A/34/46 (1979), General Recommendation No. 21 (13th session, 1994) in the comment on Arts. 15(2) and 16(1)

International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW)

International Convention on the Rights of the Child (CRC), UN Doc. A/44/49 (1989)

International Covenant on Civil and Political Rights (ICCPR), GA Res. 2200A(XXI), UN Doc. A/6316 (1966), General Comment No. 16 (1998) Article 17 of the Covenant on Civil and Political Rights, Human Rights Committee, General Comment No. 27: Freedom of movement (Art.12): 2 November 1999. CCPR/C/21/Rev.1/Add.9, General Comment No. 27. (General Comments)

International Covenant on Economic, Social and Cultural Rights (ICESCR), UN Doc. A/6316 (1966), General Comment No. 4 on the Right to Adequate Housing (Art. 11(1) of the Covenant) (Sixth session, 13 December 1991), General Comment No. 7 on the right to adequate housing (Art. 11(1) of the Covenant): forced evictions (Sixteenth session, 20 May 1997)

Principles on Housing and Property Restitution for Refugees and Displaced Persons, Commentary on the Draft Principles on Housing and Property Restitution for Refugees and Displaced Persons, UN Doc. E/CN.4/Sub.2/2004/22/Add.1

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977

Revised European Social Charter adopted in Strasbourg on 3 May 1996, Additional Protocol to the European Social Charter, adopted on 5 October 1988

151


Treaty establishing the European Community

Treaty on the Functioning of the European Union

Treaty on European Union

Universal Declaration of Human Rights (UDHR), GA Resolution 217(A), UN Doc. A/810 (1948)

Jurisprudence ECtHR, Appl. No. 5172/03, Janković vs. BiH, judgement of 16 May 2006

ECtHR, Appl. No. 13854/02, Marinković v. Croatia, decision of 16 June 2005

ECtHR, Appl. No. 15085/02, Čekić and others v. Croatia, decision of 9 October 2003

ECtHR, Appl. No. 16837/02, Ostojić v. Croatia, decision of 26 September 2002

ECtHR, Appl. No. 22344/02, Kunić v. Croatia, decision of 1 September 2005 (partly admissible)

ECtHR, Appl. No. 22344/02, Kunić v. Croatia, judgement of 11 January 2007

ECtHR, Appl. No. 33593/03, Majski v. Croatia, judgement of 1 June 2006

ECtHR, Appl. No. 34162/06, Trifunović v. Croatia, decision of 6 November 2008

ECtHR, Appl. No. 35670/03, Saratlić v. Croatia, decision of 24 October 2006

ECtHR, Appl. No. 43389/02, Gacesa v. Croatia, decision of 1 April 2008

ECtHR, Appl. No. 48778/99, Kutić v. Croatia, judgement of 1 March 2002

ECtHR, Appl. No. 48794/99, Zaklanac v. Croatia, decision of 15 November 2001

ECtHR, Appl. No. 48794/99, Zaklanac v. Croatia, decision of 16 March 2000

ECtHR, Appl. No. 59532/00, Blečić v. Croatia, Grand Chamber judgement of 8 March 2006

ECtHR, Appl. No. 60533/00, Kastelic v. Croatia, judgement of 10 July 2003

ECtHR, Appl. No. 61237/00, Ačimović v. Croatia, decision of 7 November 2002 (partly admissible)

ECtHR, Appl. No. 61237/00, Ačimović v. Croatia, judgement of 9 October 2003

ECtHR, Appl. No. 7118/03, Mrkić v. Croatia, decision of 8 June 2006 (partly inadmissible)

ECtHR, Appl. No. 75139/01, Pibernik v. Croatia, judgement of 4 March 2004

ECtHR, Appl. No. 78008/01, Varićak v. Croatia, judgement of 21 October 2004

ECtHR, Appl. No. 9056/02, Radanović v. Croatia, judgement of 21 December 2006

ECtHR, Appl. No. 9224/06, Brajović-Bratanović v. Croatia, judgement of 9 October 2008

ECtHR, Appl. No. 9685/02, Stjepanović v. Croatia, decision of 14 November 2002

ECtHR, Appl. No. 9761/02, Badinovac v. Croatia, decision of 7 November 2002 (partly admissible)

HRC, Communication No. No. 1510/2006, Dusan Vojnović v. Croatia, views of 28 April 2009, CCPR/C/95/D/1510/2006

152


Bosnia and Herzegovina BiH

The General Framework Agreement for Peace (Dayton Peace Agreement) – Constitution of BiH (never published in Official Gazette of BiH)

The Succession Agreement signed in Vienna 29th June 2001 (BiH Official Gazette, International Agreement, 10/2001)

Federation BIH

Law on Property Relationships (Zakon o vlasničkopravnim odnosima), Official Gazette of the Federation BiH 6/98, 29/03

Law on Land Registries (Zakon o zemljišnim knjigama), Official Gazette of the Federation BiH 58/02, 19/03

Law on Over Taking of the Law on Housing Relations (Zakon o preuzimanju Zakona o stambenim odnosima), Official Gazette of the Federation BiH 11/98, 38/98, 12/99, 19/99

Law on Housing Relationships, originally published in Official Gazette of the Socialist Republic BiH 14/84, 12/87, 36/89

Law on the Sale of Socially-owned Apartments (Zakon o prodaji stanova na kojima postoji stanarsko pravo), Official Gazette of the Federation BiH 27/97, 11/98, 22/99, 27/99, 7/00, 25/01, 32/01, 61/01, 15/02, 54/04, 36/06, 51/07, 72/08

Instruction on Implementation of the Provisions of the Articles 39a., 39b. and 39c of the Law on the Sale of socially-owned apartments (Instrukcija za sprovođenje odredba čl. 39a., 39b. i 39c. Zakona o prodaji stanova na kojima postoji stanarsko pravo), Official Gazette of the Federation BiH 6/00

Law on Implementation of the Decision of the Commission for Real Property Claims of Refugees and Displaced Persons (Zakon o implementaciji odluka Komisije za imovinske zahtjeva izbjeglica i raseljenih lica), Official Gazette of the Federation BiH 43/99, 51/00

Law on Transfer and Solution of Unsolved Claims for Repossession of Socially-owned Apartments and Real Property owned by Private Persons submitted to The Commission for Real Property Claims (Zakon o prijenosu i rješavanju neriješanih zahtjeva za vraćanje u posjed stana na na kojem postoji stanarsko pravo ili nekretnine u vlasništvu koji su podneseni Komisiji za imovinske zahtjeve raseljenih osoba i izbjeglica), Official Gazette of the Federation BiH 6/04, 22/04, 59/05

Law on Cessation of the Application of the Law on Abandoned Apartments (Zakon o prestanku primjene Zakona o napuštenim stanovima), Official Gazette of the Federation BiH 11/98, 38/98, 12/99, 18/99, 27/99, 43/99, 37/01, 56/01, 15/02, 24/03, 29/03

Law on Abandoned Apartments (Zakon o napuštenim stanovima), Official Gazette of the Republic BiH 6/92, 8/92, 16/92, 13/94, 36/94, 9/95

Instruction on Implementation of the Law on Cessation of the Application of the Law on Abandoned Apartments in the amended and supplemented form published in the Official Gazette of the Federation BiH 11/98, 38/98, 12/99, 18/99, 27/99 (Uputstvo o primjeni Zakona o prestanku primjene Zakona o napuštenim stanovima u njegovoj izmijenjenoj i dopunjenoj formi kao što je objavljen u “Službenim novinama Federacije BiH 11/98, 38/98, 12/99, 18/99, 27/99), Official Gazette of the Federation BiH 43/99, 46/99

Decision of the High Representative for BiH Nr. 129/01 – Decision on Amendments and Supplements of the Instruction on Implementation of the Law on Cessation of the Application of the Law on Abandoned Apartments (Odluka Visokog predstavnika za BiH br. 129/01 – Odluka o izmjenama i dopunama Uputstva o primjeni Zakona o prestanku primjene Zakona o napuštenim stanovima), Official Gazette of the Federation BiH 56/01

153


Law on Temporary Abandoned Real Property Owned by Citizens (Zakon o privremeno napuštenim nekretninama u svojini građana), Official Gazette of the Federation BiH 11/98, 29/98, 27/99

Law on Cessation of the Application of the Law on Temporary Abandoned Real Property Owned by Citizens (Zakon o prestanku primjene Zakona o privremeno napuštenim nekretninama u svojini građana), Official Gazette of the Federation BiH 43/99, 37/01, 56/01, 15/02, 24/03

Law on Repossession, Reinstatement and Sale of Apartments (Zakon o vraćanju, dodjeli i prodaji stanova), Official Gazette of the Federation BiH 28/05, 2/08

Pre-Draft of the Law on Real Rights of the Federation BiH (16.02.2006)

Republika Srpska

Law on Real Rights (Zakon o stvarnim pravima), Official Gazette of the Republika Srpska 124/08, 58/09

Law on Land Registries (Zakon o zemljišnim knjigama), Official Gazette of the Republika Srpska, 74/02, 67/03, 46/04, 109/05, 119/08

Law on Housing Relationships (Zakon o stambenim odnosima), Official Gazette of the Republika Srpska 19/93, 22/93, 12/99 ( theLaw on Housing Relationships was originally published in Official Gazette of Socialist Republic BiH 14/84, 12/87, 36/89)

Law on Annulment of the Provisions of the Amendments on the Law on Housing Relationships (Zakon o ukidanju članova u Zakonu o izmenama i dopunama Zakona o stambenim odnosima), Official Gazette of the Republika Srpska 31/99

Law on Use of Abandoned Property (Zakon o korištenju napuštene imovine), Official Gazette of the Republika Srpska 38/98, 12/99

Law on the Cessation of Application of the Law on Use of Abandoned Property (Zakon o prestanku primjene Zakona o napuštenoj imovini), Official Gazette of the Republika Srpska 38/98, 12/99, 31/99, 65/01, 38/02, 64/02, 39/03, 96/03, 49/09

Law on Implementation of the Decision of the Commission for Real Property Claims of Refugees and Displaced Persons (Zakon o implementaciji odluka Komisije za imovinske zahtjeva izbjeglica i raseljenih lica), Official Gazette of the Republika Srpska 31/99, 18/00, 39/00, 65/01, 13/02, 39/03

Law on Transfer and Solution of Unsolved Claims for Repossession of Socially-owned Apartments and Real Property owned by Private Persons submitted to The Commission for Real Property Claims (Zakon o prenosu i rješavanju nerješanih zahtjeva za povrat stanova u posjed u društvenom vlasništvu ili nekretnina u privatnom vlasništvu podnesenih Komisiji za imovinske zahtjeve raseljenih lica i izbjeglica), Official Gazette of the Republika Srpska 3/04, 34/04

Law on Privatisation of State Owned Apartments (Zakon o privatizaciji državnih stanova), Official Gazette of the Republika Srpska 11/00, 18/01, 20/00, 35/01, 47/02, 65/03, 3/04, 70/04, 2/05, 67/05, 70/06, 38/07, 72/07 – revised version, 59/08, 58/09

Decision of the High Representative for BiH on the Temporary Suspension of Privatisation of Apartments (Odluka Visokog predstavnika za BiH o privremenom obustavljanju privatizacije stanova), Official Gazette of the Republika Srpska 65/01

Decision of the High Representative for BiH on Termination of the Temporary Suspension of Privatisation of Apartments (Odluka Visokog predstavnika za BiH o prestanku privremenog obustavljanja privatizacije stanova), Official Gazette of the Republika Srpska 23/02

Regulation on the Status of State-Owned Apartments which were privatised before the Enactment of the Law on Privatisation of the Apartments in State Property (Uredba o

154


statusu državnih stanova otkupljenih prije donošenja Zakona o privatizaciji državnih stanova), Official Gazette of the Republika Srpska 86/02

Regulation on Obligations of Persons with multiple Housing Rights (Uredba o obavezama višestukih nosilaca stanarskog prava kod otkupa stanova), Official Gazette of the Republika Srpska 51/01

Instruction on Examination of Legality of the Contract on the Apartments’ Use concluded and reiterated after 1st April 1992 and on Procedure of the Establishment of Rights on Reiteration of Contract on Apartment’s use (Uputstvo o proveri zakonitosti ugovora o korištenju stanova zaključenih i obnovljenih posle 1. aprila 1992. godine i postupku utvrđivanja prava na obnovu ugovora o korištenju stana), Official Gazette of the Republika Srpska 11/02

Law on internally displaced persons, refugees and returnees in RS (Zakon o raseljenim licima, izbjeglicama i povratnicima u RS), Official Gazette of the Republika Srpska 33/99, 38/02

Brčko District BIH

Law on Property and other Real Rights of the Brčko District BiH (Zakon o vlasništvu i drugim stvarnim pravima Brčko Distrikta BiH), Official Gazette of the Brčko District BiH 11/01, 8/03, 40/04

Law on Land Register and on Rights over Real Estate (Zakon o registru zemljišta i prava na zemljištu), Official Gazette of the Brčko District BiH 11/01, 1/03, 14/03, 21/05, 19/07, 2/08

Law on Sale of Socially-owned Apartments in Brčko District BiH (Zakon o otkupu stanova na kojima postoji stanarsko pravo u Brčko Distriktu BiH), Official Gazette of the Brčko District BiH 10/02, 17/04, 41/06, 19/07, 2/08

Law on Retransfer of Abandoned Property in Brčko District BiH (Zakon o vraćanju napuštene imovine u u Brčko Distriktu BiH), Official Gazette of the Brčko District BiH 5/01, 1/02, 10/02, 17/04, 38/04, 41/06

Decision on the Prolongation of the Deadline for Revision of the Decisions and Contracts on Apartments’ use in Brčko District BiH (Odluka o produženju roka za reviziju Odluka i Ugovora o korištenju stana u Brčko Distriktu BiH), Official Gazette of the Brčko Distrikt BiH 15/03

Croatia

Basic Agreement on the Region of Eastern Slavonia, Baranja and Western Sirmium of 12 November 1995 (Erdut Agreement)

Zakonu o obnovi (Narodne novine, 24/96., 54/96., 87/96. i 57/00, 38/09)

Zakon o područjima posebne državne skrbi (Narodne novine, 86/08)

Zakon o prestanku važenja Zakona o privremenom preuzimanju i upravljanju određenom imovinom (Narodne novine, 101/98)

Zakon o odgovornosti Republike Hrvatske za štetu uzrokovanu od pripadnika hrvatskih oružanih i redarstvenih snaga tijekom Domovinskog rata (Narodne novine, 117/03)

Zakon o statusu prognanika i izbjeglica (Narodne novine, 93/93, 39/95, 128/99)

Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija (Narodne novine, 117/03)

Zakon o konvalidaciji (Narodne novine, 104/97)

Ugovor o pitanjima sukcesije, potpisan u Beču 29. lipnja 2001 (Narodne novine – Međunarodni ugovori, 2/04, 5/04)

155


Uredba o uvjetima za kupnju obiteljske kuće ili stana u državnom vlasništvu na područjima posebne državne skrbi (Narodne novine, 48/03, 68/07, 86/08)

Uredba za provođenje Zakona o konvalidaciji akata izdanih u predmetima upravne naravi (Narodne novine, 51/98)

Uredba za provođenje Zakona o konvalidaciji akata izdanih u predmetima sudbene naravi (Narodne novine, 51/98)

Uredba za provođenje Zakona o konvalidaciji za upravno područje rada, zapošljavanja, socijalne skrbi i zaštite vojnih i civilnih invalida rata (Narodne novine, 51/98, 74/08)

Vjerodostojno tumačenje članka 14. Zakona o statusu prognanika i izbjeglica (Narodne novine, 29/99)

Zaključak Hrvatskog sabora o dosljednoj provedbi Zakona o statusu prognanika i izbjeglica (Narodne novine 96/93, 39/95, 128/99) sukladno Vjerodostojnom tumačenju čl. 14. Zakona (Narodne novine, 29/99) Narodne novine, 86/02

Zaključak o načinu stambenog zbrinjavanja povratnika koji nisu vlasnici kuće ili stana, a živjeli su u stanovima u društvenom vlasništvu (bivši nositelji stanarskog prava) na podurčjima Republike Hrvatske, koja su izvan područja posebne državne skrbi (Narodne novine, 100/03)

Zaključak o produženju roka za podnošenje zahtjeva za stambeno zbrinjavanje povratnika koji su bili korisnici društvenih stanova izvan područja posebne državne skrbi (Narodne novine, 79/05)

Zaključak o provedbi programa stambenog zbrinjavanja povratnika – bivših nositelja stanarskog prava na stanovima izvan područja posebne državne skrbi (Narodne novine, 96/06)

Pravilnik o redu prvenstva stambenog zbrinjavanja na područjima posebne državne skrbi (Narodne novine, 112/02)

Program povratka i zbrinjavanja prognanika, izbjeglica i raseljenih osoba (Narodne novine, 92/98, 88/02)

Kosovo

UN Resolution of the Security Council 1244 (1999) of 10 June 1999, S/RES/1244 (1999)

Proposal of the United Nations Office of the Special Envoy to Kosovo (UNOSEK) for a status settlement in Kosovo

Council Joint Action 2008/124/CFSP of 4 February 2008 as the legal basis of EULEX mission

UNMIK Regulation 2001/9 on a Constitutional Framework for Provisional Self-Government in Kosovo

Comprehensive Proposal for the Kosovo Status Settlement, S/2007/168/Add. 1

Constitution of Republic of Kosovo of 15 April 2008

UNMIK Regulation 1999/1 on the Authority of the Interim Administration in Kosovo.

UNMIK Regulation 1999/23 on the Establishment of the Housing and Property Directorate and Housing and Property Claims Commission

UNMIK Regulation 1999/24 on the Law applicable in Kosovo

UNMIK Regulation 2000/59 amending UNMIK Regulation 1999/24 on the Law Applicable in Kosovo

UNMIK Regulation 2000/60 on the Rules of Procedure and Evidence of the Housing and Property Directorate and Housing and Property Claims Commission

156


UNMIK Regulation 2002/22 on the Promulgation of the Law adopted by the Assembly of Kosovo on the Establishment of an Immovable Property Rights Register

UNMIK Regulation 2004/4 on the promulgation of the Law on Cadastre adopted by the Assembly of Kosovo

UNMIK Regulation 2006/10 on the Resolution of Claims relating to Private Immovable Property, including Agricultural and Commercial Property

UNMIK Regulation 2006/50 on the Resolution of Claims relating to Private Immovable Property, including Agricultural and Commercial Property

Law No. 2002/5 on the Establishment of an Immovable Property Rights Register

Law No. 2003/25 on the Cadastre

Law No. 03/L-079 amending UNMIK Regulation 2006/50 of 13 June 2008

Law No. 03/L-154 on Property and other Real Rights of 26 June 2009

Clarification by the SRSG of the Secretary-General of UNMIK Regulation 2000/60 of 31 October 2000

Administrative Direction 2000/45 Implementing UNMIK Regulation 1999/23 On the Establishment of the Housing and Property Directorate and Housing and Property Claims Commission

Administrative Direction 2000/14 implementing UNMIK Regulation 2000/12 on the Establishment of the Administrative Department of Public Services

Administrative Direction 2007/5 on implementing UNMIK Regulation No. 2006/50 on the Resolution of Claims relating to Private Immovable Property, including Agricultural and Commercial Property

Administrative Direction 2008/5 on implementing UNMIK Regulation No. 2006/50 on the Resolution of Claims relating to Private Immovable Property, including Agricultural and Commercial Property

The Law on Housing Relations (Official Gazette of the SAP Kosovo, No. 11/83, 29/86, 42/86)

Law on Co-ownership of an Apartment (Official Gazette of the SAP Kosovo, No. 43/80, 22/87)

Law on Construction of Annexes to Buildings and the Conversion of Common Premises into Apartments (Official Gazette of the SAP Kosovo, No. 14/88)

Law on the Transfer of Real Property (Official Gazette of SAP, Kosovo, No. 45/81, 29/86, 26/88)

Law on Housing 1992 (Official Gazette of the Republic of Serbia, No. 50/92)

157


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NOTES