AN EVALUATION OF THE HOUSING AND PROPERTY DIRECTORATE IN KOSOVO · An Evaluation of the Housing and Property Directorate in Kosovo,1999 - 2006 2 access a dispute settlement body

AN EVALUATION OF THE HOUSING AND PROPERTY DIRECTORATE IN

KOSOVO

BY

BJØRN VAGLE AND FERNANDO DE MEDINA – ROSALES

NORDEM Report 12/2006

Copyright: the Norwegian Centre for Human Rights/NORDEM and (author(s)).

NORDEM, the Norwegian Resource Bank for Democracy and Human Rights, is a programme of the Norwegian Centre for Human Rights (NCHR), and has as its main objective to actively promote international human rights. NORDEM is jointly administered by NCHR and the Norwegian Refugee Council. NORDEM works mainly in relation to multilateral institutions. The operative mandate of the programme is realised primarily through the recruitment and deployment of qualified Norwegian personnel to international assignments which promote democratisation and respect for human rights. The programme is responsible for the training of personnel before deployment, reporting on completed assignments, and plays a role in research related to areas of active involvement. The vast majority of assignments are channelled through the Norwegian Ministry of Foreign Affairs.

NORDEM Report is a series of reports documenting NORDEM activities and is published jointly by NORDEM and the Norwegian Centre for Human Rights.

Series editor: Siri Skåre

Series consultants: Hege Mørk, Lisa Kirkengen, Turid Wulff Knutsen, Christian Boe Astrup

The opinions expressed in this report are those of the authors and do not necessarily reflect those of the publisher.

ISSN: 1503-1330

ISBN: 10: 82-8158 – 026 -7

ISBN: 13: 978-82-8158-026-8

NORDEM Report is available online at: http://www.humanrights.uio.no/forskning/publ/publikasjonsliste.html

Contents Abbreviations

EXECUTIVE SUMMARY...................................................................................................1

PART I: INTRODUCTION AND BACKGROUND ........................................................3

Chapter 1: Introduction......................................................................................................3

Chapter 2: Background to the situation in Kosovo .........................................................8

PART II: THE HOUSING AND PROPERTY DIRECTORATE AND THE HOUSING AND PROPERTY CLAIMS COMMISSION.................................................................. 16

Chapter 3: The mandate................................................................................................. 16

Chapter 4 Administrative Framework ........................................................................... 23

PART III: THE MECHANISM FOR RESOLUTION OF PROPERTY DISPUTES.... 29

Chapter 5: Introduction................................................................................................... 29

Chapter 6: Administration of the claim process by the Directorate ............................. 31

Chapter 7: Adjudication of disputes by the Commission ............................................. 38

Chapter 8: Decisions....................................................................................................... 45

Chapter 9: Implementation............................................................................................. 48

PART IV: EVALUATION OF THE RESOLUTION MECHANISM .......................... 51

Chapter 10: Introduction................................................................................................. 51

Chapter 11: In-take of claims ......................................................................................... 53

Chapter 12: Resolution of disputes ................................................................................ 56

Chapter 13 Implementation of decisions ....................................................................... 75

Chapter 14: Overall Conclusions ................................................................................... 82

Part V: Administration of properties................................................................................. 83

Chapter 15: Administration and allocation of properties.............................................. 83

15.2 Legal Framework.................................................................................................... 84

15.3 Standard Operational Procedures........................................................................... 86

Chapter 16: Evaluation of the Administration Scheme ................................................ 90

Part VI: Capacity building and exit strategies ................................................................... 95

Chapter 17: Cooperation and Local Capacity Building............................................... 95

Chapter 18: Exit Strategy ............................................................................................... 99

Part VII: Conclusions and Lessons Learned.................................................................... 103

Chapter 19 : Conclusions and Lessons Learned.......................................................... 103

Annex A List of people interviewed............................................................................ 110

Annex B Documents Consulted................................................................................... 113

Annex C Terms of reference ........................................................................................ 115

Abbreviations

CRPC Commission for Real Property Claims

CCPU Central Case Processing Unit

ECHR European Convention on Human Rights

ESI European Stability Initiative

EU Enforcement Unit

FRY Federal Republic of Yugoslavia

HPD Housing and Property Directorate and Housing and Property Claims Commission

IAC Interim Administrative Council

JAC Joint Advisory Council on Legislative Matters

KCA Kosovo Cadastre Agency

KCB Kosovo Consolidated Budget

KLA Kosovo Liberation Army

KPA Kosovo Property Agency

KPS Kosovo Police Service

NATO North Atlantic Treaty Organization

NORDEM Norwegian Resource Bank for Democracy and Human Rights

PISG Provisional Institutions of Self-Government

SOP Standard Operational Procedures

SRSG Special Representative of the Secretary General

UNCHS-Habitat United Nations Commission for Human Settlements-Habitat

UNHCR United Nations High Commissioner for Refugees

UNMIK United Nations Interim Administration Mission in Kosovo

An Evaluation of the Housing and Property Directorate in Kosovo,1999 - 2006

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EXECUTIVE SUMMARY

In November 1999, the Housing and Property Directorate and the Housing and Property Claims Commission (HPD) was established as a distinct institution under the auspices of the United Nations Interim Administration Mission in Kosovo (UNMIK). The institution was intended to play a major role in the mission’s efforts to address property right issues in the aftermath of the conflict.

The mandate conferred upon the institution a variety of responsibilities, which reflected both the immediate and long terms concerns related to the property sector in the province.

Due to the limited administrative capability of UNMIK, the task of establishing a functional organisation to implement the mandate was entrusted to UN-Habitat. This proved to be a difficult undertaking. Failure to produce immediate results, coupled with high expectations from the stakeholders left the institution with a badly stained reputation, and threatened at one point the whole operation.

The problems experienced during this phase have had a lasting impact on the institution. First of all, the institution had to redefine its overall strategy, which later effectively limited its ability to address long-term concerns in the property sector. Secondly, the stigmatisation of the institution as being incompetent affected its credibility and diminished its role as the major player in the field of property rights in Kosovo. The substantial work undertaken by the HPD throughout its functional period has thus been related to the settlement of property disputes and the administration and allocation of abandoned properties with emphasis on the former.

The overall impression in terms of settling disputes is that the property restitution process has not been able to provide the claimants with an effective remedy. This is due to the following three circumstances; (a) it is mostly the Serbian minority population who has sought remedy in the process by submitting property rights claims; (b) the remedy awarded to them has been repossession; (c) repossession has become impossible due to lingering ethnic tensions constituting a high level of insecurity. The process has thus had little impact on the return issue. A substantial proportion of the properties involved in the process have been destroyed. Those who have been more fortunate, have either managed to sell their properties, or had no other option but to accept temporary administration.

It seems fair to suggest that a restitution process like the one undertaken in Kosovo has little chance of success unless it is part of a coordinated and comprehensive effort to rebuild the society as it was before the conflict. Lack of a real commitment on the part of the Albanian majority population to rebuild the province as a multi ethnic society, as well as UNMIK’s inability to create conditions conducive to return is largely to blame.

Given these overriding circumstances, it may be concluded that the HPD has been fairly successful in the implementation of its mandate. Despite serious resource constraints throughout the whole operation, the institution has by large been able to process and adjudicate the substantial proportion of claims in an efficient and fair manner. Most notably, it has effectively managed to collect claims and fulfil the claimants’ right to


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access a dispute settlement body. It has been able to offer the claimants assistance in substantiating their claims, it has undertaken a comprehensive process of notification, hereby complying with an essential feature of any proper dispute settlement process, and it has gradually earned a reputation as an impartial body. Finally, it has been able to carry out several thousand evictions without major security incidents.

Despite these achievements, there is always room for improvements, some of which are pinpointed throughout the report. An important issue worth mentioning here concerns information handling. The institution would have greatly benefited if it had been able to supply the public with more information about its activities. This would have achieved greater transparency, thus facilitating a better understanding of its mandate and prevented unnecessary criticism. The institution further failed for a long period to install a proper internal system for information handling. This would greatly have improved its ability to supply the involved claimants with vital information about the status of their claim. As anyone can imagine, having to wait for a decision for up to five years without knowledge about the outcome puts a great constrain on the person involved. The failure to provide information, thus alienated a large proportion of the claimants, and subsequently left them disinterested. Another issue concerns the method of processing. In a situation of mass claims processing, it is obvious that one has to deviate from the normal order of processing. This must be reflected in all parts of the case processing, not only in terms of adjudication. The institution did for a considerable time fail to recognize this in regards to the comprehensive process of notification of claims. It seems fair to suggest that notification based on geographical location would have achieved higher efficiency at the preparatory stages. The same may be the case in regards to the verification process. Finally, a similar modality should have been exercised in regards to the process of implementing the decisions of the institution. Case-by-case implementation has proved not to be effective in securing repossession and return. Mass implementation to specific geographical locations could possibly have a great effect and it is regrettable that this was not attempted to any significant extent.

The overall impression in terms of the mandate to administrate and allocate humanitarian housing is that this has only partially been implemented. The resource constraints experienced by the institution has had a great impact, forcing the institution to make priorities between the two main components of its operations. The administration of property was partly intended to provide claimants with a temporary remedy. The failure by the institution to implement a rental scheme has made this option less attractive for the property right holder in question. Lastly, it has failed to make the best use of its available stock of properties to provide humanitarian housing.

The institution’s ability to build local capacity has been limited. This must by large be attributed to the nature of its mandate, as well as the general attitude expressed towards the institution by the local authorities. Capacity building within the institution itself has however been considerable. The institution has employed a substantial number of local staff which has been given opportunities to utilize its skills and gain valuable experience.

The institution proclaimed a deadline for completion of its mandate by the end of 2005. This has not been complied with. The institution had by that time not completed adjudication and a considerable proportion decisions were pending implementation. Evictions are still pending, and no mechanism for compensation has been installed. The delays experienced in this regard, has impacted on the institutions ability to execute other parts of its exit strategy. The institution has from April 2006 been subsumed into a new institution with more local involvement – the Kosovo Property Agency -, which will


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continue to implement its mandate, as well as attending to a new mandate related to land and commercial property.

The international community has lately come to realize the important role property rights may play in rebuilding peace and stability to a society. Conducting a restitution process in the aftermath of an armed conflict is thus a fairly new endeavour and is likely to be of topical interest in the future. The process undertaken in Kosovo has shown that a property restitution process by itself is insufficient to facilitate return of refugees and displaced persons. This in turn has impacted on it ability to provide property rights holders with an effective remedy. To afford individuals exposed to violations of property rights effective protection requires that the remedies awarded are carefully adapted to the local context.

In regards to the execution of the process, the institutional design must reflect the complexity of the issues at stake. Genuine legal disputes require a model which is capable of providing the parties with comprehensive procedural rights. Correspondingly, if the expected case load is largely uncontested this would justify a less advanced model, intended to achieve speedy resolutions. Finally, a process of claims collection is to be preferred if the process is conducted in societies where freedom of movement is limited.

PART I: INTRODUCTION AND BACKGROUND

Chapter 1: Introduction

1.1 Scope and Method In November 1999, the United Nations Interim Administration Mission in Kosovo (UNMIK) established through a legislative act the Housing and Property Directorate and the Housing and Property Claims Commission (HPD).1 It is an ad hoc international body integrated in the structure of UNMIK. The institution is composed of two distinct organs - the Directorate and the Commission. It was mandated to provide overall direction on property rights in Kosovo and to achieve an effective and efficient resolution of residential property disputes.2 The mandate addressed short and long-term concerns in the housing and property area and was seen as an important part of UNMIK’s mission to re-build Kosovo after the conflict.

1 When referring to the institution as a whole we use the acronym HPD. “Directorate" or “Commission” is used when referring to each specific organ. 2 See the preamble and section 1 of UNMIK Regulation 1999/23


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The HPD was granted quasi-legislative3, judicial and executive authority. It had exclusive jurisdiction to decide and act upon matters that according to the local applicable law would have fallen within the jurisdiction of the local courts and administrative structures. It should carry out its functions until the Special Representative of the Secretary General (SRSG) determines that local institutions are able to carry out these functions.

Restoring property rights in the aftermath of an armed conflict is a new endeavour to the international community. There are not many examples of internationally driven mechanisms operating in such a context, with the exception of the Commission for Real Property Claims (CRPC) in Bosnia and Herzegovina4.

The Norwegian Government has funded and seconded personnel to the institution for several years. Norwegian support started in 2002 with five legal officers seconded through the Norwegian Resource Bank for Democracy and Human Rights (NORDEM) and 2, 8 million Norwegian Kroner in grants. The numbers of seconded personnel remained approximately the same5 while the funding reached its highest level in 2003 with 12, 1 million Norwegian Kroner. It is recognized that the support has been made available to the HPD at times of crisis, therefore enabling it to continue carrying out its activities and avoiding a complete shut down. Hence, the Norwegian Government has become a key sponsor to the institution. The European Union and the Netherlands have been the largest providers of funds throughout the life of the institution.

In the fall of 2005, as the expected deadline for completing its mandate approached, the Norwegian Ministry of Foreign Affairs decided to evaluate the institution’s performance since its creation six years ago. The HPD had advocated for a comprehensive evaluation beyond a financial audit and welcomed the initiative. The evaluation was commissioned through the NORDEM mechanism. The scope of the evaluation as stated in the terms of reference is “to assess to what extent the substantial work of the HPD is in line with international human rights standards […] and to what extent the process has served its purpose, namely to provide a fair and efficient resolution of property disputes”. The substantial work of the HPD has been interpreted as a reference to the institution’s performance in two specific areas. The first area is the resolution of property disputes which starts with the activities related to the collection of claims, and ends with the implementation of the decisions of the institution. The second area is the administration of property, which is closely related to the resolution of property disputes, but also includes non-disputed properties. The institution’s administrative structure and management should be taken into account in assessing its substantial work. Furthermore, the terms of reference stated that the evaluation should assess the institution’s

3 The rules of procedure and evidence were adopted by the SRSG upon a proposal of the Commission. The Regulation adopted subsequently grants the Directorate and the Commission the authority to issue rules for its implementation. 4 CRPC is considered to be the model for the HPD. 5 In 2003, 2004 and 2005 Norway seconded four international staff members to work with the institution each year.


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contributions to local capacity building and the elaboration of exit strategies. Lastly, conclusions and lessons learned for other conflict situations should be provided.

The research leading to this report took place between November 2005 and February 2006. By December 2005, the HPD was expected to have completed decision making, implementation of the decisions and the hand over of remaining tasks and responsibilities to local institutions in line with developed exit strategies. The institution was envisaged to close down during the first half of 2006. During the evaluation period discussions have been ongoing within UNMIK in relation to a possible new and expanded mandate for the institution. On 4 March 2006, the Kosovo Property Agency (KPA) was established to resolve claims related to agricultural and commercial property. 6 It also inherits the remains of the previous mandate. The process leading up to the creation KPA will be reflected in this report, but assessing the new mandate falls outside of its scope.

The research has been conducted in a climate of uncertainty in Kosovo and Serbia -among local and international officials- due to the impending talks on the future status of the province and the political and institutional arrangements that would follow from those talks. The report does not reflect upon this climate but rather takes an in-depth look into the implementation of the mandate by the institution, and provides recommendations for the future in Kosovo and other similar situations.

1.2 Methodology The terms of reference provided the methodology to be applied in carrying out the assessment. They stressed the need to analyze the historical and legal background in Kosovo and in the Balkans in general. It was also required to consider relevant articles of the European Convention on Human Rights (ECHR) in assessing the process. Other requirements included conducting interviews with relevant stakeholders and reviewing cases from different regions in Kosovo.

Throughout the assignment the team has undertaken an in-depth study of documentation pertaining to the creation of the HPD and the implementation of its mandate. This includes preparatory works and studies, legal opinions of international bodies regarding the compliance of the procedural rules with human rights, monitoring reports and interim evaluation reports. The team has also studied the cases received by the Ombudsperson of Kosovo7. International standards and some relevant decisions from human rights courts and bodies on housing and property issues were also taken into consideration. Research has also extended to restitution processes and mass claims mechanisms elsewhere.

6 UNMIK Regulation 2006/10 on the resolution of claims relating to private immovable property, including agricultural and commercial property. 7 The complaints and the UNMIK responses are available at www.ombudspersonkosovo.org.


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Aware of the need to put the performance of the institution in context, the team has also reviewed documentation pertaining to the broader situation in Kosovo regarding the history of the conflict and the establishment of UNMIK.

During the evaluation period, the team has spent all together 30 days in Kosovo, distributed over three separate visits. The team has met with the executive director and staff members at head quarter and visited four out of five regional offices of the institution, plus the representation office in Belgrade. The team has observed the routinely activities of the offices including the enforcement of evictions. Interviews have been conducted with the Executive Director and the Commissioners, as well as a number of former local and international employees of the institution. In addition, talks have been held with a number of external stakeholders including the claimants, representatives of internally displaced persons, civil society, members of the judiciary, municipal administration officials, UNMIK officials, representatives of the provisional institutions of self government (PISG), representatives of the Serbian government, international agencies, etc. These interviews have been essential to understand the modus operandi of the institution, to identify problem areas and to construct an opinion about how the HPD is perceived by external actors. An attempt was made to contact previous Executive Directors but this has been unsuccessful.

The team has reviewed a number of selected cases. Through these reviews the team has gained an understanding about how a case is constructed, what kind of documentation is included in the file, what referral forms are used by the Directorate, etc. The most important outcome of this exercise is to understand the process leading to a decision by the Commission, and the content and structure of such decisions. Due to the Directorate’s security policies it was not possible to copy case files in order to carry out more thorough studies in Oslo so the files had to be examined in Pristina. Hence, the number of cases reviewed is limited but still representative.

Finally, the analysis of statistics has been problematic due to the continuously evolving figures but also to the way the different figures are labelled. A more detailed statistical analysis would be desirable to have a full understanding of the performance of the institution but the numbers, which are in fact available, are sufficient to substantiate the essential findings in the report.

The team has been received well by the institution and has enjoyed substantial logistical support throughout the evaluation period.

1.3 Criteria The criteria to be applied in carrying out the assessment can be found in the terms of reference:

Fairness;

Human rights compliance;

Effectiveness;

Efficiency.

This approach combines criteria used in evaluations of development cooperation projects (effectiveness and efficiency) with other criteria more frequently used in human rights and rule of law assessments (fairness and human rights compliance). The joint application of these criteria requires combinations of quantitative and qualitative


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indicators. An obvious problem arises from combining fairness and efficiency. The need to produce results in limited time frames, with few resources and in a difficult environment, might affect the standards of fairness negatively. On the other hand, stringent approaches to fairness might render the process inefficient, delaying the overall resolution of the disputes. This conceptual tension will be thoroughly examined in light of concrete facts.

Applying effectiveness as one of the criteria requires distinguishing between the immediate objectives and the higher goals of the mechanism. The main objective of the HPD is to reach an effective and efficient resolution of property disputes. However, according to the preparatory documents to the mandate and other reports of the HPD and UNMIK, it is obvious that it was meant to contribute to higher goals, such as facilitating the return of displaced persons and refugees, bringing law and order to the property rights arena or becoming the main research, policy and implementing body on housing and property rights in Kosovo. This report is focused on the accomplishment of the immediate objectives as stated in the terms of reference but through the process of the evaluation we attempt to give insight into the institution’s contribution to the higher goals of UNMIK`s peace building operation.

The evaluation team has interpreted “resolution of property disputes” in broad terms. Therefore, the definition of the term resolution is not limited to a decision from the Commission confirming property rights for one of the parties, but it includes the implementation of the remedies awarded by the decision. The remedy awarded must be implemented for a dispute to be resolved. An effective implementation is not a matter solely under the control of the Directorate since there are other external factors that can strongly influence the process, especially post implementation protection of the rights awarded. The assessment of the performance of the Directorate in administering properties follows the same principles. Administration of property implies more than merely issuing permits to occupants. As we will see later, it involves complex processes that have to be fully considered to conclude whether or not the objectives pertaining to the administration of properties have been achieved.

The approach chosen is to assess the institution and its procedures through a human rights lens. The ECHR has been the main reference, as prescribed by the terms of reference of the exercise. However, this has not precluded references to other human rights conventions and standards.

1.4 Structure of the report The report is divided into seven parts. Part I explains the rationale, scope, methodology and criteria of the evaluation. It also provides information on the historical, legal and human rights background. Part II describes the problems confronting UNMIK in the residential property sector and the process leading to the creation of the HPD. It presents an overview of the mandate and explores the rationale for each category of claims. Part III examines the rules -substantive and procedural- governing the resolution of property disputes and describes how they have been implemented. The process is described and assessed from the submission of a claim until the implementation of a decision. Part IV contains the evaluation of the resolution mechanism. Part V describes and evaluates the rules and processes governing the administration of properties. Part VI describes and evaluates the activities related to capacity building and exit strategies. Finally, Part VII provides general conclusions and lessons learned.


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Chapter 2: Background to the situation in Kosovo

2.1 Historical background8 The conflict between Serbs and Albanians in Kosovo goes long back in history. For Serbs, Kosovo represents the cradle of their civilization. For Albanians the focus was demographic: more and more Albanians lived in Kosovo. The area had been under Ottoman rule since the Serbs lost the battle of Kosovo Polje in 1389. Serbia did not regain independence until 1878 and Albania until 1912. Serbia regained control of Kosovo after the first Balkan war in 1912. Albania only had control of Kosovo under German protection during Second World War. After the war, Kosovo remained part of Serbia in the newly created socialist Yugoslavia and Kosovo Albanians were recognized as a national minority with rights to education in their language and certain degree of home rule.

In 1974 the Constitution of the Socialist Federal Republic of Yugoslavia granted Kosovo autonomy within the Republic of Serbia, under the name Socialist Autonomous Province of Kosovo. The other autonomous province in the Republic of Serbia was the north western area of Vojvodina. One of the main reasons to grant autonomy to these territories was that the majority of the population was not of Serbian ethnicity: Albanians in Kosovo and Hungarians in Vojvodina. The autonomy granted a large degree of self-government to the provinces.

In 1981, after Tito’s death, Kosovo Albanians demanded full republican status through mass demonstrations harshly responded by the authorities with the deployment of the federal army. Several thousands activists were arrested and some of them were sentenced to serve a long- term prison sentence up to 15 years. This period of unrest lasted for seven years.

During this period, accusations of abuses and human rights violations between the two ethnic groups increased. Kosovo Serbs have been migrating from the province since 1960. In 1986, a Memorandum of the Serbian Academy of Arts and Sciences warned about a threat of genocide against Serbs from Kosovo.

In 1987, Slobodan Milosevic delivered a nationalistic speech to the Kosovo Serbs at the grounds of the historical battle of Kosovo Polje. Milosevic used this event in his campaign to gain absolute control of the Serbian government. In 1990, the autonomy was revoked and the use of Albanian in the media and the education system was forbidden. The same year, some deputies from the dissolved assembly unsuccessfully proclaimed the independent republic of Kosovo. A parallel Kosovo Albanian administration started that year and ran its first elections in 1992. The Democratic League of Kosovo won the election. The unrest continued with the arrest of dissidents,

8 The source for this historical background until UNMIK was deployed is based upon the historical background to the OSCE report “As seen, as told- An analysis of the human rights findings of the OSCE Kosovo Verification Mission October 1998 to June 1999”.


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dismissals of Kosovo Albanians, a general strike and other protests. It was during this period when the discriminatory measures were adopted against Kosovo Albanians regarding employment and housing matters. A state of emergency was enforced in Kosovo between 1989 and 1992. In the meantime, the Socialist Federal Republic of Yugoslavia ceased to exist and civil wars ravaged Bosnia and Croatia. The republics of Serbia and Montenegro joined under a new Federal Republic of Yugoslavia (FRY).

In 1998, the irruption in the scene of the Kosovo Liberation Army (KLA) and the increased military response of the Serbian authorities transformed a peaceful protest to an armed conflict. The following year and a half witnessed an escalation of the armed conflict and serious human rights violations. Large numbers of Kosovo Albanians fled to the neighbouring countries and further away9. The international community tried to stop the armed confrontation (UN Resolution 119, the Holbrook-Milosevic agreement and the Rambouillet negotiations) but failed and the NATO Air campaign against FRY began on the 20th of March 1999. The campaign lasted until the Kumanovo Agreement was signed on the 3rd of June 1999, which marked the retreat of the Serbian forces from Kosovo.

On 10 June 1999, the UN Security Council adopted Resolution 1244 which called for the deployment of an Interim United Nations Administration Mission. K-FOR10, a NATO-led peacekeeping force, was tasked to enforce security. Kosovo Albanians started returning while Serbs started fleeing from widespread revenge attacks and intimidation.11 The different estimates on the numbers of displaced Serbs put the figure in the vicinity of 250,000 out of which, around 6,074 would have retuned to Kosovo by October 2005.12

UNMIK immediately started adopting regulations, which had the rank of law. In November 1999, the SRSG adopted, Regulation 1999/23 on the establishment of the Housing and Property Directorate and Housing Property Claims Commission. In October 2000, the SRSG adopted Regulation 2000/60 on the Rules of Procedure and Evidence.

Six years have elapsed since the deployment of UNMIK. In the autumn of 2000, Slobodan Milosevic was forced to step down from power and shortly after was handed over to the International Criminal Tribunal for Yugoslavia. The FRY is now Serbia and Montenegro. Inside Kosovo, UNMIK has been engaged in reconstructing the province. Civil administration, judiciary, law enforcement, economic reconstruction and other

9 The OSCE report (page xvii) gives a total figure of 862,979 refugees and internally displaced persons from Kosovo by 9 June 1999 and 300,700 by October 1999. The source of these figures is UNHCR. 10 "KFOR" means the specially constituted force, composed by the North Atlantic Treaty Organization, including its member States, its subsidiary bodies, its military Headquarters and national elements/units, and non-NATO contributing countries. 11 Dodson and Heiskanen "Housing and Property restitution in Kosovo” in Returning home: housing and property restitution rights of refugees and displaced persons, ed Leckie. S 12 Analysis of the situation of internally displaced persons from Kosovo in Serbia and Montenegro: Law and practice. IDP interagency working group, October 2005. UNHCR is part of this working group.


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areas have been the focus of the international community with uneven progress. The Constitutional Framework for the Provisional Government of Kosovo was passed in May 2001 and the PISG were established.

On 10 December 2003 the Standards for Kosovo were launched.13 They were agreed between the PISG and UNMIK, and approved by the United Nations Security Council. The Standards for Kosovo are a set of targets that the PISG must meet in order to start the talks about the future political status of Kosovo.

In October 2005, the Special Envoy of the Secretary General of the United Nations for the Comprehensive Review of Kosovo, Mr. Karl Eide, delivered his report. The report acknowledged that progress towards the Standards was not satisfactory but recommended the starting of the status talks. Shortly after, the Security Council opened the process for the settlement of Kosovo future status. Marti Ahtisaari was appointed UN Special Envoy with a mandate to lead the negotiations. On the 20th of February the negotiations started in Vienna.

2.2 The legislative background This section provides a brief description of the legal framework applicable in Kosovo since 10 June 1999. It focuses on regulations and provisions relevant to the mandate of the institution. First, it sketches UN Security Council Resolution 1244 and comments upon the legitimacy of the authority of UNMIK. It goes on to describe the legal system currently applied in Kosovo. It continues by enumerating other UNMIK Regulations that are relevant to the mandate of the institution. Finally, it refers to domestic laws relevant to the process of property and housing rights restitution. Regulations on the mandate and rules of procedure and evidence of the HPD are analyzed in detail later.

A. UN Security Council Resolution 1244

Resolution 1244 was adopted on the 10th of June 1999, one day after the end of the NATO military campaign against FRY. The preamble of the Resolution reaffirmed the commitments of the international community to the sovereignty and integrity of FRY, as well as the calls for substantive autonomy and meaningful self-administration of Kosovo.

The Resolution mandated the Secretary General to establish an international civil presence (UNMIK) that would provide an interim administration in Kosovo to undertake the following tasks:14

• Provide transitional administration while establishing and overseeing the development of provisional democratic self-governing institutions to ensure conditions for a peaceful and normal life for all inhabitants of Kosovo (10);

13 For more information on the Standards visit: www.UNMIKonline.org/standards/index.htm 14 UN Security Council Resolution 1244 operational paragraphs 9, 10 and 11.


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• Perform basic civilian administrative functions where and as long as required (11.b);

• Transfer, as these institutions are established, its administrative responsibilities while overseeing and supporting the consolidation of Kosovo’s local provisional institutions and other peace building activities (11.d); and

• Protecting and promoting human rights (11.j);

It also called for the deployment of an international security presence (KFOR) responsible for, inter alia:

• “Establishing a secure environment in which refuges and displaced persons can return home in safety15, the international civil presence can operate, […]” (9.c) and;

• Ensuring public safety and order until the international civil presence can take responsibility for this task. (9.d) 16

The preamble also reaffirmed the right of all refugees and displaced persons to return to their homes in safety and imposed that duty upon the international civil presence.17

The context surrounding the adoption of the Resolution and the subsequent intervention has raised questions about the legitimacy of UNMIK’s authority and the sustainability of the institution in terms of settling property disputes in Kosovo. In a report on property issues commissioned by the Council of Europe, two independent legal experts questioned the legitimacy of UNMIK’s authority and the sustainability of the Commission’s decisions18. One of them argued that a military intervention in another state requires compliance with customary international law or approval by the Security Council and that the NATO campaign resulting in the UN interim administration enjoyed neither of them. Both experts pointed out that the authority of UNMIK in Kosovo is temporary; therefore its jurisdiction and competence to permanently determine property rights are questionable. It was further indicated that the Commission risked making a series of property determinations later overturned by the legal regime of an independent Kosovo or an autonomous Kosovo within Serbia and Montenegro.19

One commentator argued that the international security presence in Kosovo (KFOR) might be against international law but the UN civilian presence is not. In his view, the Agreement on Political Principles of 3 June 1999 between FRY and the European U and

15 Given the numbers of destroyed properties (9,795) the success of KFOR in fulfilling this task is questionable and obviously affects the effective implementation of the mandate of the HPD. 16 KFOR provided security support to the Directorate in carrying out its first evictions. Gradually, the need for security support decreased and was provided by UNMIK Police first (international), and then delegated to the Kosovo Police Service (local) 17 UN Security Council Resolution paragraph 7 of the preamble and operational paragraph 11.k 18 Expert Report on Property Issues in Kosovo, Council of Europe Secretariat Office in Kosovo, February 2000 19 These opinions were issued before Regulation 2000/60 on the rules of evidence and procedure was enacted.


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Russian envoys and to the UNMIK-FRY Agreement of November 2001 render legitimacy to the civilian presence in Kosovo. However, the military presence is against article 52 of the Vienna Convention of the Law on Treaties and the illegality could only be cured by the signing of a new agreement between FRY and NATO20. If this argument is accepted as valid, the alleged lack of legitimacy of UNMIK and its bodies (including the HPD) would not carry so much weight.

This team is not in the position to express preference for any of these opinions on the legitimacy or legality of the authority of UNMIK and its effects on the sustainability of the decisions by the Directorate or the Commission. The significance of this discussion lies in the fact that the process of restoring property rights in Kosovo, as well as the legal process facilitating this, must be based on broad participation and ownership by the local population to ensure the sustainability of the institutions decisions and secure the best long term results.

B. UNMIK authority and the applicable law in Kosovo21

The principles of Resolution 1244 were reflected in Regulation 1999/1 on the Authority of the Interim Administration in Kosovo. It vested UNMIK with legislative and executive authority in Kosovo to be exercised by the SRSG. This authority included the power to appoint and remove any person from the civil administration. It also included authority to administer state owned property of FRY, of the Republic of Serbia, and of any of its organs located in the territory of Kosovo. Regulation 2000/54 expanded this authority to administer socially owned property22.

Regulation 1999/1, later amended by Regulation 1999/24, regulated the legal system in Kosovo. The system is a rather complex mix of pre 1989 Kosovo Autonomy law, FRY law, UNMIK Regulations and international human rights standards. UNMIK Regulations and their subsidiary instruments supersede all previous laws regulating the same matters. The domestic laws in force until Kosovo lost its autonomy in March 1989 are applicable insofar they regulate other matters than UNMIK regulations and their subsidiary instruments. Laws applicable in 1999 (which were the applicable legal system when UNMIK was deployed) only apply if they fulfil three conditions: 1) they regulate other matters than UNMIK regulations or pre 1989 law; 2) they are not discriminatory; and 3) they do not contradict international human right standards23. There are no clear mechanisms to determine when laws have been superseded or when they remain in force.

20 Enrico Milano, “Security Council action in the Balkans: Reviewing the legality of Kosovo’s territorial status”; European Journal of International Law (2003), Vol. 14 No. 5 999-1022 21 Regulations 2000/54 and 2000/59 amending Regulation 1999/1 and Regulation 1999/24 did not introduce any relevant provisions to the mandate of the Directorate and the Commission. 22 For an explanation on socially owned property see chapter 8 section 2 A of this report. 23 See section 2.3 on the application of human rights in Kosovo


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This structure of the legal system complicated the process of property restitution. If strictly applied, this manoeuvre to turn the “legal clock” back to March 1989 could affect the validity of property rights acquired afterwards, in particular through the privatization process. However, it was later regulated that property rights acquired during the 1990s remain valid notwithstanding the changes in the applicable law in Kosovo.24

C. Other UNMIK Regulations

UNMIK issued other Regulations with relevant aspects for restitution of property and housing rights.

Regulation No. 1999/2 on Prevention of Access by Individuals and Their Removal to Secure Public Peace and Order of 12 August 1999.

• Regulation 1999/10 on the repeal of discriminatory legislation affecting housing and property rights of 13 October 1999. This regulation was proposed by the Habitat Plan of Action. It repealed two discriminatory laws passed by the Serbian Government.

• Regulation 2000/47 on the establishment of the status, privileges and immunities of KFOR and UNMIK and their personnel in Kosovo of 18 August 2000. The Commission has passed decisions on properties occupied by KFOR officers. The implementation of the decisions has been more difficult than expected due to the immunities enjoyed by KFOR and its personnel.

• Regulation 2001/9 on a Constitutional Framework for Provisional Self -Government in Kosovo of 15 May 2001. This regulation transferred significant areas of administration to the newly created PISG but explicitly reserved the HPD under the exclusive powers of the SRSG.

• Regulation 2001/17 on the registration of contracts for the sale of real property in specific geographical areas of Kosovo, 22 August 2001. This Regulation raised controversy. It imposed controls over sales of minority-owned private property when the sales could change the ethnic balance in the area or it could affect the security situation in that area in detriment of other minority owners. The Regulation was criticized because many were reminded of the very same discriminatory laws that UNMIK had repealed through Regulation 1999/10.

D. Domestic applicable law

The HPD had to observe domestic applicable law to determine property rights in Kosovo. However, their mandate provides the basis to redress violations of property rights attributable to discriminatory laws passed after 23 March 1989. This may result in nullification of property rights validly acquired, although with the subsequent compensation. The HPD is not bound by domestic procedural laws. Some of the relevant domestic laws are:

Law on Basic Property Relations (Official Gazette of SFR Yugoslavia, No.6/80);

Law on Transfer of Real Property (Official Gazette of SAP Kosovo, No. 45/81, 29/86 and 28/88);

24 See section 2 of Regulation 2000/60.


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Law on Expropriation (Official Gazette of SAP Kosovo, No. 37 /71);

Law on Housing Relations (Official Gazette of SAP Kosovo, No. 11/83, 29/86 and 42/86);

Law on Co-ownership of an Apartment (Official Gazette of SAP Kosovo, No. 43/80 and 22/87).

Law on Regular Courts (Official Gazette of SAP Kosovo No. 21/78);

Code of Civil Procedure (Official Gazette of SFR Yugoslavia No. 4/77, 36/77, 36/80, 69/82, 58/84 and 74/87)25.

2.3 The human rights framework A. General Framework

The status of human rights in the legal system in Kosovo is peculiar. The Secretary General has interpreted the obligations under 1244 to protect and promote human rights standards as the basis of UNMIK’s authority. Regulations 1 and 24/1999 established that the domestic law is applicable insofar as it complies with international human rights standards. They also established that all persons undertaking public duties or holding public office shall observe international human rights standards as reflected in particular in:

(a) The Universal Declaration on Human Rights of 10 December 1948; (b) The European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 and the Protocols thereto; (c) The International Covenant on Civil and Political Rights of 16 December 1966 and the Protocols thereto; (d) The International Covenant on Economic, Social and Cultural Rights of 16 December 1966; (e) The Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965; (f) The Convention on Elimination of All Forms of Discrimination Against Women of 17 December 1979; (g) The Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment of 17 December 1984; and (h) The International Convention on the Rights of the Child of 20 December 1989.

Serbia and Montenegro, to which Kosovo belongs officially, is a party to most of these conventions. However, since it does not exercise effective jurisdiction over Kosovo it cannot be held accountable for violations of the conventions taking place there. UNMIK and KFOR are the entities exercising effective jurisdiction over Kosovo but they enjoy

25 After 1989 the Code of Civil Procedure has been amended in several occasions Official Gazette SFR Yugoslavia No. (57/89, 20/90, 27/90, 35/91, 27/92, 31/93, 24/94, 12/98 and 15/98).


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immunity and are not parties to these conventions. This results in a situation where no entity could be held legally accountable for human rights violations in Kosovo, despite the fact that most international human rights standards are directly applicable. The HPD is part of UNMIK and therefore is bound by the human rights conventions listed above. However, just like any other UNMIK entity or body, it cannot be held accountable if it contravenes their provisions in the exercise of its functions.

The Venice Commission of the Council of Europe identified this lack of accountability as the major human rights problem in Kosovo. The Commission proposed the creation of an ad hoc domestic institution to review human rights complaints against UNMIK and KFOR.26 The lack of legal accountability implies that there has been no authoritative review of the acts of the HPD in human rights terms. In addition, none of the international human rights courts or committees has ever examined the compliance with human rights of other mass claims restitution process operating in a post-conflict situation. Hence, there are no precedents to guide our assessment about whether or not the activities of the HPD are complying with human rights standards. B. Relevant international human rights standards

The following standards are particularly relevant to the substantial work of the Directorate and the Commission:

• right to peaceful enjoyment of possessions (Article 1 Protocol 1 of the European Convention on Human Rights);

The HPD was created by UNMIK, inter alia, to fulfil its obligation 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. The proportionality of the limitations that the restitution process imposes on the enjoyment of possession by legitimate owners will be discussed below.

• right to an effective remedy (Article 13 of the European Convention on Human Rights);

A main recommendation identified in the preparatory works for the HPD was “to provide an effective remedial procedure allowing them to have housing and property disputes adjudicated in an independent manner”27 Today the right to an effective remedy has regained

26 See Opinion on Human Rights in Kosovo: Possible establishment of review mechanisms. European Commission for Democracy through Law (Venice Commission) October 2004. This recommendation has materialized in Regulation 2006/12 on the establishment of a Human Rights Advisory Panel after a long process of consultation with the Council of Europe and other relevant actors of the international community active in the human rights field in Kosovo. It 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. The findings of the Advisory Panel, which may include recommendations, shall be of an advisory nature. The SRSG shall have exclusive authority and discretion to decide whether to act on these findings. Complaints against the new Kosovo Property Agency could be brought to the attention of the Human Rights Advisory Panel. 27 Housing and Property in Kosovo: Rights, Law and Justice. Proposals for a Comprehensive Plan of Action for the Promotion and Protection of Housing and Property Rights in Kosovo, Habitat-UNCHS prepared by Leckie, S., August 1999.


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relevance insofar there are no effective remedies for human rights violations infringed by UNMIK or their institutions.

• right to a due process (Article 6 of the European Convention on Human Rights); Article 6 provides that citizens are entitled to a due process in the determination of their civil rights and obligations. The European Court on Human Rights has determined through its jurisprudence that resolution of property disputes falls under this category. This requires that the proceedings before the HPD should comply with due process requirements such as the right to access to a court, equality of arms, length of proceedings, etc. However, mass claims processes in post conflict situations are peculiar and it is far from obvious how stringent the application of due process requirements should be.

• right to adequate housing (article 11 of the Economic Social and Cultural Rights Covenant);

The right to adequate housing has two aspects. On the one hand, imposes an obligation on the state to develop policies for the progressive realization of the right to housing. On the other hand, requires from the state to refrain actions that might render people homeless. The mandate of the Directorate clearly reflects that the institution was supposed to be a key tool in developing housing and property policies in line with the obligations set forward by the Covenant.

PART II: THE HOUSING AND PROPERTY DIRECTORATE AND THE HOUSING AND PROPERTY CLAIMS COMMISSION

Chapter 3: The mandate This chapter outlines the problems confronting UNMIK in the residential property sector at the early stages of its deployment in Kosovo. It goes on to describe the processes leading to the adoption of UNMIK Regulation 1999/23 which provided the mandate of the HPD. It continues by describing the mandate as such, including the categories of residential property claims, the rationale behind them and the respective tasks of the Directorate and the Commission.

3.1 Background A. UNMIK and residential property problems

Upon its early days of deployment in Kosovo, UNMIK faced grave problems in the residential property sector. The discriminatory legislation introduced by the Serbian Government during the 1990s resulted in forced evictions and unlawful restrictions upon the enjoyment of property rights against all ethnic groups. During the armed conflict, up


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to 50% of the housing stock had been destroyed and large numbers of Kosovo Albanians had been displaced.28 Once the NATO campaign ended and the Kosovo Albanian population started returning to Kosovo, widespread revenge and violence went off against Kosovo Serbs and other minorities29 who then were displaced to Serbia, Montenegro and elsewhere. Almost all houses abandoned by minorities were occupied by returning Albanians.30 Often the houses belonging to the returnees had been destroyed during the conflict31. UNMIK also faced a scenario of institutional vacuum with neither the judiciary nor the administrative bodies having enough capacity to start addressing housing and property disputes and to bring law and order in the property rights arena. In addition, many property records had been removed or destroyed by the outgoing authorities and parallel administrative structures administering housing were established by the KLA.

At an early stage, UNMIK lacked capacity to tackle these problems. The SRSG provided the Mission with some tools to start implementing its mandate in the property sector.32 First, Regulation 1999/2 was passed aiming, among other things, to prevent illegal occupation of housing. A Housing and Property Task Force was created within the civil administration pillar to provide guidance and conduct research. In October 1999, Regulation 1999/10 explicitly repealed discriminatory legislation.33 The SRSG also authorised UNMIK municipal administrators to allocate vacant housing on humanitarian grounds. The authorisation served two purposes: first to provide returnees with shelter for the harsh Kosovo winter and second to de-legitimise the role taken by parallel structures. Some guidelines about how to implement the authorization were drafted by the Council of Europe. None of them was adopted as a Regulation.34

B. Habitat’s Programme Proposal

Meanwhile, the Secretary General had requested the United Nations Commission for Human Settlements (Habitat) to provide technical assistance to UNMIK on housing and property matters.35 Habitat identified three main areas of concern:

1) housing and property rights;

2) the cadastre and property records; and

28 von Carlowitz, L., “Crossing the boundary from the international to the domestic legal realm: UNMIK lawmaking and property rights in Kosovo,” in Global Governance Vol. 10 no. 3, 2004 29 Kosovo is populated by a number of minority groups: Serbs, Bosniaks, Turks, Roma, Ashkalias, Egyptians and Goranis. Most of the occupied houses belonged to Serbs. 30 See supra note 11. 31 See supra note11. 32 See supra note 28. 33 The laws were repealed upon the recommendation of Habitat. 34 See supra note 28. 35 See supra note 28.


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3) municipal government and administration.36

Habitat proposed a comprehensive plan of action for the promotion and protection of housing and property rights in Kosovo. The plan included a detailed analysis of the situation as well as recommendations for legislative reform and the creation of a housing and property directorate. The proposed institution should be responsible for coordination and centralisation of UNMIK's efforts within the housing and property sector and suggested a number of particular tasks to be assigned to it. The main activities should be directed towards two central areas: settling housing and property disputes and administration and allocation of non-regularized housing. The plan described in detail what kind of disputes would fall within the jurisdiction of the settling mechanism, sketched its composition and mandate, and indicated what immediate actions should be taken. It also outlined the main tasks and priorities of the administration and allocation branch of the directorate.37 In regard to the settlement of property disputes the recommended actions were:

• to appoint a three international persons tribunal mandated to resolve exclusively housing and property disputes;

• to develop claim forms; to start claim collection and;

• to initiate a mediation programme.

In regard to the administration and allocation of properties the recommended actions were:

• administration and allocation of solidarity housing;

• identification and administration of abandoned housing, and;

• issuing temporary, humanitarian permits for abandoned housing.

The programme document to which this evaluation team has had access does not provide any information about the resources needed to implement the plan or recommends any particular funding modality38.

Habitat and the civil administration pillar of UNMIK undertook the task of drafting a regulation establishing a Housing and Property Directorate and Claims Commission. Expertise was drawn from the CRPC in Bosnia and Herzegovina. Consultations were held with all UNMIK Pillars and KFOR. According to some sources, the adoption of the regulation was delayed by Kosovo Albanian representatives who opposed the exclusive jurisdiction of the Claims Commission to adjudicate certain categories of property disputes.

36 See supra note 27. 37 See supra note 27.


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UNMIK Regulation 1999/23 On 15 November 1999, the SRSG promulgated Regulation 1999/23 by which the HPD was established. The regulation assigns responsibilities to the HPD in line with the first of the three areas identified by Habitat. The institution was given a temporary mandate: to provide overall direction on property rights until the SRSG determines that local bodies have the capacity to carry them out. Regulation 1999/23 spelled out the specific responsibilities of the HPD, which are examined in detail in the next paragraphs.

A. Settlement of property disputes

The main objective of the HPD is to achieve efficient and effective resolution of claims concerning residential property.39 The regulation mandates the Directorate to register certain categories of property claims as an exception to the jurisdiction of the local courts. When possible the Directorate should attempt to mediate among the parties and if no solution is reached, the claim should be referred to the Commission for resolution.

The regulation further mandates the Commission to settle residential non-commercial property disputes referred to it by the Directorate. The Commission has exclusive jurisdiction to settle those claims although it may refer separate parts of such claims to the local courts or administrative organs, if the adjudication of those separate parts does not raise issues pertaining to the categories of claims under its exclusive jurisdiction. The decisions issued by the Commission are binding and enforceable and not subject to review by any other body in Kosovo. The regulation requires that the rules of procedure and evidence should include provisions for reconsideration of decisions of the Commission. In addition, the Commission may issue measures of protection during the investigation or pending resolution of a claim.

The regulation identifies three categories of residential property claims falling within the jurisdiction of the institution40:

a) Claims by natural persons whose ownership, possession or occupancy rights to residential property have been revoked subsequent to 23 March 1989 on the basis of legislation which is discriminatory in its application or its intent;

b) Claims by natural persons who entered into informal transactions of residential property on the basis of the free will of the parties subsequent to 23 March 1989;

c) Claims by natural persons who were the owners, possessors or occupancy right holders of residential property prior to 24 March 1999 and who do not now enjoy possession of the property, and where the property has not voluntarily been transferred.”

The rationale behind the design of the categories of claims is found in the plan of action provided by Habitat.41

39 Third paragraph of the preamble of Regulation 1999/23 40 Section 1.2 of Regulation 1999/23


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The first category, also known as category A, aims to remedy the discriminatory application of housing and property legislation. The plan of action described a number of laws and programmes of the Serbian Government, which had the intention of repressing the majority Albanian population and consolidate Serb dominance. In particular, the Law Concerning the Functioning of Republican Government Bodies under Special Circumstances from June 1990 provided the basis for dismissal of Kosovo Albanians from their jobs. Since access to occupancy tenancy rights to socially owned housing was linked to one’s employment, the dismissal of many Kosovo Albanians from their jobs allegedly resulted in the loss of occupancy tenancy rights, eviction and the subsequent loss of the right to buy the apartment under the privatization laws that were passed in the 1990s. Habitat’s plan of action advanced the difficulties of solving disputes where a Kosovo Albanian would have lost his occupancy tenancy rights to an apartment and a Kosovo Serb (or any other individual) would have purchased it later.

The plan of action estimated that around 135,000 Kosovo Albanians were dismissed from their jobs during the 1990s. This initial assessment raised the expected numbers of claims to tens of thousands. In April 2000, the explanatory report to the rules of procedure and evidence which had been commissioned by the Directorate to the European Stability Initiative42, lowered the number of expected A claims between two and six thousand. The final number of A claims registered by the Directorate is 1,212.43

Several explanations for such a low number have been raised. It has been argued that the dismissal from employment was only followed by an eviction in certain prominent cases. There is also available evidence that many Kosovo Albanians were able to purchase their apartments in the privatization process. The plan of action also pointed out that administrative evictions would be illegal under Serbian law without a hearing in a civil court. It is also argued that forces within the Kosovo Albanian society profit from illegal occupation and coerce fellow citizens from bringing their claims forward to rule of institutions. This stems from the inherent lack of trust in public institutions, since the clan and private connections are considered as a more effective mechanism. However, it is commonly agreed that no matter the volume of claims filed under this category the discrimination suffered by these claimants and the potential property disputes stemming from them had to be remedied. This was perceived as a contribution to rule of law and to reconciliation among ethnic groups.

The second category, also known as category B, aims to regularize informal transactions that took place during the 1990s as a result of the Law on Changes and Supplements on the Limitations of Real Estate Transactions of 1991 and other discriminatory measures against Kosovo Albanians. Habitat’s plan of action identified

41 See supra note 26 42 Resolving Residential Property: Principles of Law, Evidence and Procedure for the Housing and Property Directorate and Claims Commission prepared by Cox, M., European Stability Initiative, April 2000. 43 The figures pertaining to the final numbers of claims that appear in this page were received from the Directorate on 4 May 2006.


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the law as being clearly discriminatory against all ethnic groups and recommended UNMIK to repeal it immediately. The law made contracts for purchase, lease and sale of real estate contingent on an official determination by the State-the Ministry of Finance- that the transaction did not contribute to the alteration of the ethnic composition of Kosovo or to the migration of members of an ethnic group. In practice this meant that sales of property from Serbs to Albanians were in most cases forbidden. If this procedure was circumvented, the law punished the buyer with 60 days imprisonment. The application of the law resulted in individuals resorting to middlemen or to signing unofficial contracts within the parties. These contracts were never notarised by court officials and therefore never registered in the cadastre. Habitat recommended the establishment of a policy to regularize these transactions. Again the expected number of Category B claims was much higher and a number of reasons have been argued to explain the low numbers of such claims, namely the desire to avoid paying taxes. The Directorate registered a total of 765 of this type of claims.

The third category of claims, also referred to as category C, was also identified in the Habitat plan of action. The plan warned the widely forced evictions and illegal occupation of minority housing that was taking place after 10 June 1999 and the need to address the problem. The beneficiaries of this category would be refugees and internally displaced persons. The plan gave no estimates on the amount of claims to be expected under this category but the ESI report of April 2000, refers to an estimate of 50 to 70,000 claims falling within this category.44 The Directorate finally registered 27,177 claims, most of them filed by Kosovo Serbs.

The Habitat’s plan of action recommended that the body in charge of settling property disputes should also receive and process claims other than the ones finally included in Regulation 1999/23 such as claims for compensation of damaged property or reconstruction assistance, or claims for protection of illegal evictions. Finally these categories were not included since reconstruction of housing was falling under the responsibility of other agencies. Regarding illegal evictions, it was probably understood that with UNMIK Police and the courts slowly gaining capacity, these problems would find solution elsewhere.

Regulation 23 confers the HPD with exclusive jurisdiction to register and resolve residential property claims until the SRSG determines that local courts are able to carry out these functions.45 This superseded the provisions of the domestic applicable law. The main reasons behind reserving jurisdiction to an international body were the sensitive nature of these disputes and the difficulties to trust its fair resolution to local courts in a climate of acute ethnic tension. In addition, it was obvious that local court lacked capacity to deal with these disputes. The SRSG issued a clarification of the exclusive

44 See supra note 42. 45 Section 1.2 and 2.5 of Regulation 1999/23.


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jurisdiction and competence of the Directorate and the Commission to assist the courts in their interpretation of these provisions.46

Habitat’s plan of action already recommended the restriction of the Commission’s mandate to housing and property disputes. The plan offers no explicit explanation of why the mandate should not be extended to non-residential property disputes. However, in the midst of a humanitarian crisis, with a large proportion of the housing stock destroyed, large population displacement (some returning and some leaving) and the legacy of discriminatory laws affecting housing rights it is reasonable to think that residential property should become the first priority for UNMIK. It is also important to note that the civil administration pillar of UNMIK, being tasked for immediate reconstruction of local institutions, had advocated for the mandate. On the other hand, commercial and agricultural property fell naturally within the mandate of the EU-Pillar which was not fully operational. Also, solving disputes governing commercial and agricultural properties required further research and planning in the context of a broader economic reform. Another source commented that UNMIK understood that this area needed the input of domestic authorities once legitimate institutions were established. Furthermore, Habitat is specialized in residential property issues and not in economic development so it makes sense that their recommendations were limited to that sector. However, most of the stakeholders interviewed in this exercise agreed that a comprehensive mandate including commercial and agricultural property would have been a better option.

B. Other functions of the institution

Apart from resolving property disputes, the regulation confers upon the institution additional responsibilities. Section 1.1 explicitly lists the following tasks to be performed by the Directorate:

a) “Conduct an inventory of abandoned private, state and socially owned housing;”

b) “Supervise the utilization or rental scheme of such abandoned property on a temporary basis for humanitarian purposes; rental monies of abandoned private and socially owned property shall be recorded in a separate account in trust of the of the rightful owner, subject to deduction of relevant expenses;”

c) Provide guidance to UNMIK, including CIVPOL and UNHCR, as well as KFOR on specific issues related to property rights, and

d) Conduct research leading to recommended policies and legislation concerning property rights.

Litra a) specifically authorizes the institution to conduct an inventory of abandoned private, state and socially owned housing. The purpose of such an inventory was to

46 Clarification by the Special Representative of the Secretary General of UNMIK Regulation 2000/60 of April 2001


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acquire reliable information about the existing housing stock in Kosovo, and identify properties available for allocation to persons in need of humanitarian housing. Conducting the survey, and initiating ex officio administration would enable the institution to take control over abandoned properties, and provide a minimum of protection against looting, destruction and illegal occupation.

Litra b) authorizes the institution to develop an administration scheme, and tasks it to supervise the utilization or rental of abandoned properties on a temporary basis for humanitarian purposes. The provision stipulates that rental monies shall be recorded in a separate account in trust of the rightful owner, and allows the institution to charge expenses related to its administrative services.

The functions stipulated in litra c) and d) aim at providing overall direction and guidance to housing and property actions in Kosovo through continuing and expanding existing legal research and analysis on property rights. By developing expertise and accumulating information on property and housing instruments, it should enable the Directorate to answer queries and provide guidance when sought by institutions such as UNMIK regional and municipal administrators, as well as other international organisations in the field.

Chapter 4 Administrative Framework As the title of Regulation 1999/23 suggests, the institution is composed of two distinct organs. The Claims Commission is responsible for adjudicating claims pertaining to property disputes, while the Directorate, in addition to serve as the secretariat for the Claims Commission, is responsible for carrying out the other parts of the mandate. This chapter presents the institution in terms of its organisational and administrative structure and composition, the two organs internal relationship and the relationship with external stakeholders. It ends by describing the funding arrangement of the institution.

4.1 The Directorate The regulation has hardly any provisions pertaining to the Directorate. Apart from the fact that the SRSG shall appoint the Executive Director, the implementing agency (Habitat) was left with the task of designing an organisation that could carry out the mandate efficiently.47

Initially, the administrative set-up reflected the Directorate’s responsibility for implementing all the various parts of the mandate. During its operational period the Directorate has however had to adjust its structure to meet the shifting demands on the organization. A significant example is the decentralization and recentralization of claim processing activities according to the needs of the dispute settlement process. Since the organisation today is basically dealing with the settlement of disputes, and to a lesser

47 Section 3 of Regulation 1999/23


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extent administration of property, the current administrative structure must be seen as a reflection of these priorities.

By the end of 2005 the administrative set-up consisted of two main components. (1) The Executive Office is tasked with performing particular services pertaining to recruitment, procurement, accounting, logistics including IT support, and public relations and is divided into corresponding units. (2) The Department of Operations provides coordination of all operational activities going on in the field. The department is divided into two sub-components. One component consists of five regional offices, which basically count for the Directorate's field structure. The other component consists of several units, which are centralised at the operational head quarter.

The five regional offices are based in Pristina, Gnjilane, Mitrovica, Peja and Prizren. These offices are tasked with responsibilities for notifications of parties to the claims process and others affected by the Commissions decisions. They also conduct verification of documents and, in the past, processed claims. They are also tasked to liaise and cooperate with local authorities, in particular in relation to the administration of properties. The units at head quarter are the following; the Central Case Processing Unit (CCPU) which is responsible for legal review of claims; File Services which keeps records of all files and is responsible for updating the database with all incoming information in regards to the claims processing; the Outreach Unit which is responsible for updating parties on the status of their claims as well at contacting claimants after the Commission has made their decisions, and the Enforcement Unit which is responsible for carrying out evictions.

A third component is the Office of the Registry. The Registry is under the exclusive control of the Commission, but is administratively organised under the Directorate. The Registry represents the link between the Directorate and the Commission and shall provide administrative, technical and legal support to the Commission. The office is composed of two registrars and additional staff, which correspond to their different responsibilities. Registrar adjudication is responsible for assisting the Commission in the period leading up to decision making, including drafting of the decisions, while registrar implementation is responsible for issuing eviction warrants leading to the implementation of the decisions. Lately the office has also been staffed with a third registrar who is responsible for closing all cases and preparing hand over to the designated local institutions when the mandate of the HPD is brought to an end.

The Executive Director provides overall management of the Directorate. In particular he deals with policy and funding issues and reports to central UNMIK structures, the PISG and the donor community. He also has a specific responsibility for the institution’s representation office in Belgrade. Since its inception, the institution has had four persons functioning in the position, three of them formally appointed as executive directors.

Total staff of the Secretariat stands currently at 220. Given the fact that the Directorate is an internationally supervised body, the policy has been to ensure international staff in


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key positions of the organisation. Lately however, local staff has been assigned to positions with supervisory functions. Efforts have also been made to employ staff belonging to ethnic minorities and particularly Serbs.48

4.2 The Commission Unlike the Directorate, Regulation No. 1999/23 has several provisions pertaining to the Commission.49 The Regulation prescribes that the Commission initially shall be composed of one Panel of two international and one local member, all of whom shall be experts in the field of housing and property law and competent to hold judicial office. Additional panels may be established but this has never happened. The members shall be appointed by the SRSG.

Its members, who shall be appointed for an initial term of one year and may be reappointed, can only be removed from office on the recommendation of a majority of its members. This gives the Commission partial autonomy, and signifies their independence within UNMIK.

The Commission conducts its work in bi-monthly sessions. Sessions usually take place in Pristina and last for approximately 3-5 days. The Commissioners are expected to do preparatory and ancillary work at their home base, if and as required.

One of its two international members shall be appointed as Chairperson. The Chairperson is assigned with additional tasks of directing the work of the Commission, hereunder determining the number and date of sessions, the order in which claims will be considered, preside at its sessions and represent the Commission in high-level official meetings.

The official languages of the Commission are Albanian, English and Serbian.

Throughout its functioning period, discussions have been held concerning the establishment of additional Panels. This has not happened, and the Panel has maintained the original members since the inception. The two international members have extensive experience in property restitution and mass claims processing. The local member, an Albanian, has expertise within the field of property law and served as a member to the Supreme Court of Kosovo prior to the loss of its autonomy in 1989. Upon the increase in the number of claims submitted, the Commission decided in the fall of 2002 to put in place an arrangement for its local member to be available between sessions to assist the Office of the Registry. The arrangement consisted in delegation of certain review functions to him.

48 The composition of the staff in terms of international and local staff has changed throughout the operational period. In 2005 the following figures were presented in the annual report for 2004 of the institution: 10% international, 90% local. Of the local staff working inside Kosovo, 15% are non-Albanian. Of these; 61% Serbian, 23’% Roma, Askhali and Egyptian, 8% Turkish, and 8% Bosnian and Gorani. 49 Section 2 of Regulation 1999/23


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4.3 Their Internal Relationship While the Directorate has been mandated to provide overall direction on property rights in Kosovo, the Commissions mandate is solely to resolve property disputes brought before it. Thus, their relationship is based on the interaction in relation to the settlement of disputes.

Through its decision-making the Commission provides the ultimate checks and balances to the claims process. This may be exerted through two distinct procedures. One is by referring back specific claims to the Directorate for the purpose of obtaining more information or conduct additional investigations. The other is to provide the Directorate with additional rules of procedure and evidence consistent with the regulation.

Given the modus operandi of the Commissions, its plenary session has been made use of as an important forum for exchange of information between the two organs. At the beginning of each session, the members of the Commission and the Executive Director and other representatives from the Directorate discuss the state of affairs of the institution. Issues discussed include reporting on overall progress on the processing and implementation of claims, the various challenges the institution is facing and the specific activities undertaken to resolve them.

After each session additional rules and specific reasons for referring back cases are worked out and included in the minutes from the session. The minutes also specify which decisions the Commission considers to be setting precedence. The minutes are distributed throughout the organisation, and the Office of the Registry has a key role in making sure that the rules and guiding principles are followed.

A. The HPD and UNMIK

The HPD is a concrete result of the unique legislative powers that were given to UNMIK to facilitate the international administration of Kosovo. The promulgation of Regulation 1999/23 means that the institution was established through a legislative act. At an early stage of the international presence in the province, UNMIK lacked the necessary managerial resources. Thus, the institution was organised under the auspices of Habitat, which was assigned to implement the framework and to oversee the management of its operations.

Through a Memorandum of Understanding of 2 July 2002 between UNMIK and Habitat, the responsibilities for operations in Kosovo were transferred to UNMIK. This change came into effect on 4 November 2002, and HPD was from that point on part of UNMIK`s institutional structures. However, this only applied to the institution’s activities inside Kosovo. The fact that Serbia does not recognize the international presence in the province resulted in an arrangement where the formal responsibilities for HPD operations within Serbia and Montenegro remained with Habitat. This was only a temporary solution, and in August 2004 resulted in a formal hand over to the United Nations Office in Belgrade.


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From that point on, the HPD formed a distinct component within the UNMIK structure. The fact that the Commission has adjudicative powers gives the institution a degree of independence and autonomy. On the other hand the Directorate has reporting obligations. The Directorate, through its Executive Director, reports to the Deputy SRSG for Civil Administration (former Pillar II). Through an administrative direction the SRSG established an Advisory Board of the HPD on 25 March 2004.50 The Board shall be composed of representatives from UNMIK Civil Administration, Habitat, members of the donor community and the Executive Director of the institution. Its responsibility is to advise the SRSG on matters relating to the functioning of the institution, including implementation of its mandate, development of policy initiatives and administrative, operational and funding requirements and arrangements. The Board shall convene every three months.51

The regulation foresees that the HPD shall be a temporary transitional body. Whenever the SRSG determines that local governmental institutions are able to carry out the functions entrusted to the HPD, the institution may be closed down.52 This has not yet happened, and the HPD was subsumed by the Kosovo Property Agency in April this year.

B. The HPD and Local Institutions

Regulation 2001/9 sets out the "Constitutional Framework for Provisional Self-Government". Under that framework, responsibility for significant areas of administration was to be gradually transferred to local institutions. The powers of these institutions are still subject to the ultimate authority of the SRSG. Powers specifically reserved include amongst others the "authority to administer public, state and socially-owned property" and maintain "control and authority over the Housing and Property Directorate, including the Housing and Property Claims Commission".

The fact that formal authority and responsibility for the HPD has remained within UNMIK, does not however mean that the institution should refrain from cooperation with local institutions. On the contrary, additional rules explicitly provide for the Directorate’s delegation of authority to municipal authorities. Thus, this represents an entry point for cooperation, for instance in regards to the administration of properties.

4.5 Funding The distinctiveness of the HPD within the UNMIK structure partly originates in its funding arrangement. The institution do only to a limited extent rely on funding from UNMIK`s core budget. The rest has to be extracted from the donor community and the

50 Administrative Direction No. 2004/5 51 The Advisory Board has in fact met three times per year, once every fourth month, until March 2006 52 Section 1.1 and 2.1 of Regulation 1999/23


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Kosovo Consolidated Budget (KCB). The financial structure of the HPD is illustrated below.

Throughout its period of functioning, the HPD has received contributions from a number of countries. Some donors have continuously supported the institution from its inception while others have given support from time to time. Donor contribution throughout the period is illustrated below. Various countries have used different ways of channelling funds to the organisation. Some of the contribution has been made available through Habitat, others through the KCB. Some contributions have been unspecified and made available to the running budget of HPD while others have been earmarked, for instance through secondment of international staff. All figures below are in US dollars.

Donors Total

Kosovo Consolidated Budget 6.330.000

UNMIK Secondment 1.834.000

Norway Grants 2.565.000

Norway Secondments 1.241.000

Switzerland 3.380.000

European Agency for Reconstruction 2.975.000

Netherlands 2.660.000

USA 1.730.000

Canada 1.577.000

Finland 860.000

Germany 630.000

Ireland 417.000

Total 26.199.000

Year of Commitm. 2000 2001 2002 2003 2004 2005 2006

Total 2.187.000 2.640.000 5.506.000 5.065.000 4.515.000 5.286.000 1.000.000

As part of the UNMIK structure, the HPD needs to obtain financial clearance before donor funds can be made available to the organisation. The procedure by which this clearance is given may take up to 6months.


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PART III: THE MECHANISM FOR RESOLUTION OF PROPERTY DISPUTES

Chapter 5: Introduction The main objective behind the establishment of the HPD was to resolve certain categories of residential property claims. Regulation 1999/23 does however not prescribe the procedures the institution should follow to implement this responsibility. It only states that the SRSG shall establish by regulation further rules upon the recommendation of the Commission. These rules should guarantee fair and impartial proceedings in accordance with international recognized human rights standards.53

Regulation 2000/60 on Residential Property Claims and the Rules of Procedure and Evidence of the Housing and Property Directorate and the Housing and Property Claims Commission was promulgated on 31 October 2000, and contained detailed provisions on substantial and procedural matters related to the resolution of property disputes. The regulation was a result of the efforts of UNMIK in consultation with local authorities through and JAC and IAC54 and was subjected to extensive international legal review before it was finally adopted, almost a year after the HPD was created.

The legal framework is highly influenced by the experience drawn from Bosnia and Herzegovina where a similar restitution process had been carried out during the latter part of the 1990`s: the Commission for Real Property Claims of Displaced Persons and Refugees. Certain key elements of the process in Bosnia were incorporated in Regulation 2000/60. For instance, both frameworks have provisions which confer responsibilities upon the dispute settlement bodies to collect claims, to verify documents and carry out investigations with the purpose of gathering additional evidence. These responsibilities distinguish the dispute settlement mechanism from that of ordinary courts, where the disputing parties themselves are responsible for carrying out these tasks. However, the regulation in Kosovo also introduces new elements. While the model used in Bosnia was purely administrative in nature, the model provided in Kosovo has significant judicial elements. The most important one is perhaps that the process is largely adversarial. The regulation thus has procedural rules to ensure notification and participation through the exchange of written submissions and documentary evidence. Another significant element is that the dispute settlement body in Kosovo is responsible for the implementation, or enforcement, of its decisions. These features, as well as several other elements where incorporated in the regulation to meet the requirements generated from

53 Section 2.6 of Regulation 1999/23 54 JAC is the Joint Advisory Council in Legislative matters and IAC is the Interim Administrative Council. These bodies were set up to represent the local community until legitimate institutions were in place.


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the particular circumstances of the Kosovo society, as well as in an attempt to learn from the failures experienced in Bosnia.

The overall purpose behind the regulation was to put in place a legal framework that could provide an effective remedy to the claimants involved in the process, while at the same time guarantee fair proceedings in line with human rights standards. The notion of effectiveness and fairness tend to contradict each other, and Regulation 2000/60 must be seen as an attempt to strike a proper balance between the concepts, in light of the particular circumstances in Kosovo. On the one hand, the framework authorizes the use of mass claims processing techniques to facilitate a speedy resolution of the claims. Such techniques include the use of summary procedures in cases where the claims are uncontested, and the use of cover decisions to facilitate the resolution of a high number of claims together. On the other hand, the framework provided the parties with significant procedural rights to ensure a fair process. These rights relate to the requirements of due process and ensure proper participation in cases of a genuine legal dispute.

Regulation 2000/60 filled the vacuum left by Regulation 1999/23 in terms of the division of responsibilities between the two organs of the institution. The division of responsibilities is best described by one of Habitat former advisers in Kosovo: “the property claims process is administered by an administrative body, the Directorate, which is responsible for claims registration and mediation efforts, and a quasi-judicial body, the Commission, which has exclusive jurisdiction to adjudicate the property claims referred to it by the Directorate.”55

Regulation 1999/23 advanced a few rules about how the Commission should carry out its work but it was silent about the procedures to be followed by the Directorate. Regulation 2000/60 adopted almost a year later provided these procedures. The Directorate was mandated to register claims, solve them through mediation and if unsuccessful refer them to the Commission for adjudication. Although the regulation distributes responsibilities between them, the organs are intertwined and dependent of each other. The Directorate must during the preparatory stages carefully observe the standards set through the Commission’s jurisprudence and instructions in relation to procedural and evidentiary issues. On the other hand, it also plays a very important role in the decision making process. For instance, the parties to a claim are, as a general rule, prevented from having direct access to the Commission. Any communication in regards to the claim must be made through the Directorate. The Directorate thus controls what information is being made available to the Commission, and may thereby greatly influence its decisions. A close cooperation between the two organs is therefore of paramount importance.

Finally, the regulation includes a number of substantial provisions to be used when deciding on the claims. The research undertaken while the regulation was drafted called

55 “Restoring property rights in the aftermath of war” Hans Das; International and Comparative Law Quarterly. April 2004 (53 ICLQ 42)


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for certain amendments to the definitions of the various categories of claims. It further led to the inclusion of several legal principles and rules on evidence, and added detailed provisions on the various remedies provided for by the mechanism.

This introduction gives a general overview of the main features of the process of resolving property disputes in Kosovo. In the following chapters of part III, the process will be described and examined further. As pointed out previously in this report, the process is quite complex. A proper understanding of how the mechanism works requires a certain level of detail in the presentation. Regulation 2000/60 will be used as the reference document, while the main objective will be to describe and assess how the framework has been implemented.

Chapter 6: Administration of the claim process by the Directorate This chapter describes how the Directorate has processed claims in practice. It is structured following the different stages of the process: claim in-take, notification, verification, rejection, mediation and, last, referral of cases to the Commission. A reading of the regulation may give the impression that processing of claims should take place in chronological order starting with the submission of a claim, following with notification and investigation, and finishing with a referral to the Commission. In fact, this is not the case and a claim could go through the different stages of the proceedings several times before being referred to the Commission and even then, the Commission could refer it back to the Directorate for further investigation or verification. At any time the Directorate can recommend that the Commission issues measures of protection or any other directive or order to secure the orderly and expeditious resolution of a claim.

It is important to draw attention to the fact that the Directorate never adopted additional rules regulating in further detail how the process should be implemented. Although Regulation 2000/60 is quite specific when it comes to submission and notification, the rules for resolving claims are concentrated within five paragraphs in section 10 and are quite general. This vacuum is filled by instructions and jurisprudence of the Commission. However, the Commission is only bound by its own precedents and the instructions can be amended at any time.

6.1 In-take of claims Registration of claims and their content is regulated in section 7 and 8. In short, the claim had to be submitted personally by the claimant, a member of the family household56 or an authorized person.57 The claim shall be made in a form provided by the Directorate

56 Members of family households of a property right holder are determined in accordance with article 9 of the Law on Housing Relations. 57 Section 7.3 of Regulation 2000/60 authorizes the Directorate to certify alternative documents authorizing representation of a claimant where the provision of a power of attorney is problematic. This provision is included because according to the applicable laws in Kosovo a power of attorney has to be issued by the interested parties in a


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and signed in the presence of a staff member of the Directorate. The claimant must submit all relevant documentation in his possession, whether original or copies that he or she possesses or can reasonably obtain from a public record. Category C claimants can seek an order restoring possession or placing the property under the administration of the Directorate when they submit the claim.58

The officer of the Directorate would interview the claimant and then fill out the form manually. The officer was supposed to help the claimant so all relevant information would be stated in the claim. Both would sign the claim form. Copies of all relevant documents would be attached and listed, while the originals would remain with the claimant. The claimant received a copy of the claim.

The Directorate did not start in-take of claims until the summer of 2000 more than six months after Regulation 1999/23 was passed and before the approval of Regulation 2000/60 by the SRSG. 59 First, claims were collected at locations where the Directorate had established an office. The requirement to submit the claim personally has obvious practical implications in a situation where freedom of movement is very restricted to members of certain minority groups. In order to serve potential claimants deprived from freedom of movement the Directorate sent mobile teams to enclaves. The next challenge was to reach those potential claimants residing outside Kosovo, namely in the countries of the Former Yugoslavia. Given the political climate, it required lengthy negotiations with the authorities in Belgrade before the Directorate could start its operations in Serbia proper. In November 2001, Habitat signed an agreement with the Yugoslav government which provided for the deployment of the Directorate in Serbia and Montenegro. By January 2002 the Directorate had opened offices in Belgrade, Nis and Kraljevo and was running satellite offices in Novi Pazar, Kursumlija and Vranje.60 In May 2002 an office was opened in Podgorica. The operations in Macedonia were run from the Gjilane regional office until March 2003 when a satellite office was opened in Skopje targeting claimants of Roma ethnicity.

Since claims had to be signed in the presence of an officer of the Directorate, claimants living in countries where the Directorate had no presence could not file claims. To provide such claimants with a possibility to file claims an agreement was reached with the Norwegian Refugee Council whereby the Directorate would accept powers of attorney issued to this organization to file claims.61 Reportedly, individual staff members of the Directorate also tried to collect claims in their countries of origin in a private effort.

court with jurisdiction over the matter. Obviously, it was impossible for many displaced persons to travel back to their towns of origin so with this provision the Directorate could register claims submitted by authorized persons through powers of attorney issued in Serbia or elsewhere. 58 For a detailed description of the regime governing administration of property see Part IV of this report. 59 Approximately 800 60 HPD Periodic report January-March 2002 61 HPD Periodic report April-June 2002


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To motivate and inform potential claimants to submit claims, the Directorate ran an awareness campaign in Serbia and Montenegro including TV spots, radio jingles, announcements in newspapers, distribution of pamphlets and posters, press conferences, and interventions in talk shows. A spot was broadcasted in Kosovo Television (RTK) targeting the Diaspora. This potential group of claimants also received information in the mail.

Regulation 2000/60 imposed a deadline to submit claims with the Directorate. The SRSG could choose to extend it only for certain categories of claims or to impose different deadlines for each category. The initial deadline to submit a claim with the Directorate was 1 December 2001. Given the expected number of claims, the lack of resources available to the institution and its late deployment outside Kosovo the deadline was extended in several occasions with the last extension expiring on 31 July 2003. Since the adoption of Regulation 2000/60 until the deadline expired, the Directorate registered a total of 29,154 claims. The Regulation is silent about what remedies are available to a potential claimant who missed the deadline.

The claim in-take phase was marked by the shortage of resources available to the Directorate. In February 2002, the Directorate started implementing a “Contingency Plan” to collect as many claims as possible before the deadline and to implement claims already decided. The implementation of the Plan implied that other activities of the Directorate, namely administration of property and case processing, stopped almost entirely as all resources were dedicated to collect claims. The situation was so critical that the institution reported that unless resources were made available, it would close down all its operations by December.62 The secondment of Norwegian lawyers in September alleviated the crisis and enabled the Directorate to resume case processing. 63 Later that same year the operational management was handed over to UNMIK and the major donors resumed their support to the institution.

The Directorate faced a significant problem when the numbers of collected claims increased to several thousands and no proper file system had been established. Reportedly, the Directorate did not have its first database until December 2002. Until that date, claims were registered in an excel spreadsheet and kept in file cabinets and shelves. The spread sheet did not allow for geographical searches, supervision of the process, etc. According to some sources, as of September 2002 the data in the spread sheets could be easily modified by the many staff members that could access them when lodging information about a new claim and several thousands claims were piling up in the headquarters of the Directorate. As soon as resources were made available a secure and user-friendly database system was established. By September 2002, the Commission had already issued around 400 decisions.

62 HPD Periodic report January-March 2002 63 NORDEM seconded five lawyers to the HPD in September 2002.


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6.2 Notification and participation Under the heading “The Rights of Parties to the Claim”, section 9 provides the rules for notification and participation in the process. The Directorate must make reasonable efforts to notify other persons with a legal interest in the property, for example by announcing it in an official publication. Other than the claimant itself, the parties to a claim are the occupant and any other party with a legal interest who expresses their wish to participate. The occupant must also submit a “reply to claim” form. Section 9 imposes upon the Directorate 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. The parties must fulfil the deadlines set by the regulation. However, the Directorate might waive any of these procedural rules where there are good reasons and this would not materially prejudice the rights of parties.

The Directorate had to deliver information and evidence among the parties so all of them had an opportunity to participate in the process. Since the proceedings before the Commission are written, notification is essential to ensure due process. Adversarial proceedings and equality of arms require that all parties are aware of, and have an opportunity to respond to, the allegations that other parties put forward.

During the first two years after Regulation 2000/60 was passed, notification was centralized and notices were delivered chronologically as claims were being filed, disregarding where the property was located. This proved to be inefficient, and in 2002, in line with the decentralization arrangements, the regional offices undertook processing and notification was carried out in accordance with geographical criteria. Notices are served by notification officers under the supervision of the Head of the Regional Office.

The logistics required to deliver notices for such an elevated number of claims in a conflict environment like Kosovo64 and with few resources, proved to be complicated. For instance, many occupants who were in fact unlawful occupants were often not willing to be notified and would not open the door to receive the notification. The Regulation did not specify when a notice could be considered delivered and the Directorate had to interpret the rules under the Commission’s guidance. The Directorate opted to notify the property -and not the occupant- and collected statements of neighbours testifying that the notice had been delivered. Still, this required resources since the same location had to be visited several times before posting the notice.

In order to fulfil the duty to notify persons with a legal interest by all reasonable means, the Directorate published all claims in an official bulletin, which was also uploaded to its web site. Hard copies of the bulletin were distributed to municipalities, consular offices, courts, enclaves, NGOs, etc.

64 In ordinary circumstances notification is done through the regular mail or through specialized bailiffs’ services of the ministry of justice. Although the possibility of using the police or the judicial administration was contemplated it was soon disregarded and the Directorate carried out the notification process with its own means.


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To become a party to the proceedings occupants and others needed to give notice of participation and submit a reply to claim within certain deadlines. In general, the Directorate has applied a very lenient policy towards missed deadlines and usually parties who did not meet the deadlines have been allowed to become parties to the proceedings and to submit new evidence at all stage of proceedings, before the Commission issued a final decision. This of course has implications for the efficiency of the process but the approach of the Directorate, following the guidelines of the Commission, has been to favour substantive justice over procedural rigidity.

6.3 Verification and translation of documents Section 10 states that the Directorate can investigate claims and has access to any record in order to obtain evidence relevant to settlements of claims or any other verification purposes. As part of its duties to investigate a claim the Directorate had to assess the validity of documents submitted as evidence of a property right by the parties to a claim. The Directorate could decide that a document is valid on its face or by comparison with originals or copies in institutional records i.e. the cadastre or the municipal court. Documents verified by the Directorate constitute important evidence for the Commission in reaching a decision. If documents cannot be verified (or simply are not available) the chances of obtaining a positive decision are slimmer. Verification may be conducted at any stage of the proceedings if new evidence is produced.

During the first two years of implementation, the verification team was centralised in head quarter. After the decentralization process that took place in autumn 2002, verification teams were also deployed in the regional offices except a core verification team for category A and B claims which remained in Pristina.

The Directorate also needed to verify documents in institutions located in Serbia proper due to the removal of archives by Serb authorities when they withdrew from Kosovo.65 At the end of the NATO campaign the Yugoslav Army had removed all its archives from Kosovo, the police had removed approximately 50 % and it is unknown how much documentation was removed from enterprises and municipalities. The cadastre was removed to Krusevac and the Serb authorities decided not to modify its content. A few municipal cadastre offices were left 100 % intact while others were only partly relocated. Reportedly, it is one of the most reliable sources for verification purposes. At first, the institutions in Serbia refused the Directorate access to their archives but later this resistance was overcome and the Directorate was granted access to the records. Around 9000 documents (between 5 and 6 per day) have been verified by the Belgrade office alone. The resistance to allow access to records in Kosovo was soon overcome and no further problems were reported.

The Commission provided guidance to the Directorate on how to carry out verification of documents through its instructions and jurisprudence. Instructions were delivered specifying when verification prima facie would be sufficient or when it should be

65 For background on the deployment of the Directorate in Serbia proper see section 6.1 of this report.


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conducted more thoroughly.66 In short, prima facie verification was enough in C claims where the respondent did not allege any rights to the property. However, verification should be conducted thoroughly by checking public records, etc in any other circumstances, especially in unusual scenarios. The Commission formally issued further additional rules determining what would be accepted as a certified copy.67 The instructions extended to what information should be included in the verification reports, especially what kind of verification had been undertaken or if it had been unnecessary.

Translation of documents was done systematically at the beginning. As the understanding of the different legal issues progressed and more procedures were put in place the need for translation decreased. However, the Directorate always had the possibility to translate documents if needed. In order to speed the process, the Commission applied section 19.5 of Regulation 2000/60 and delegated the review of evidence to the local Commissioner.

The Directorate and the Commission often found cases of forged documents although in the vast majority of cases documents were genuine. According to one source, this slowed down the process since verification had to be stricter. It was discussed whether or not this should be brought to the attention of the law enforcement authorities but this evaluation team has no information on whether this action was taken.

The activities of the Directorate regarding verification are beyond the requirements in regular civil procedure where it is up to the parties to produce evidence before the Court. The Directorate would have to look for evidence in cases where the claimant is not able to produce documentary evidence. Also, the Directorate would undertake verification of documents in cases of uncontested claims which would not be necessary in regular courts proceedings. Obviously this is an extremely demanding task in terms of resources but it probably pays off in terms of certainty and perception of fairness.

6.4 Mediation Section 10 imposes upon the Directorate the duty to try to settle claims amicably, including solving housing needs, developing standardized agreements and certifying settlements. There is not much information available about how the Directorate approached its mediation tasks. From the information available the attempts to mediate were abandoned quite early in order to spare resources to other activities. There are no publicly available statistics about successful cases of mediation. In June 2005, the Directorate reported 2,325 claims as settled (withdrawn) and 1,146 closed on request. These statistics do not reflect how many disputes the Directorate mediated actively. However, different sources within the Directorate indicated that mediation only occurred in a handful of cases.

66 A verification prima facie means that the document is valid on its face because dates, serial numbers, signatures, etc, are consistent and further verification is not needed. It is a judgment call of the verification officer, which will be subject to later control. 67 Rule 8 of the Additional Rules of the Housing and Property Claims Commission


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6.5 Referral of claims to the Commission According to section 10, a claim is referred to the Commission for adjudication if it has not been settled through mediation or the claimant challenges the rejection by the Directorate due to lack of jurisdiction. The Directorate will prepare summaries of submissions and evidence, translations of evidence and recommendations for the consideration of the Commission. Investigation of the claim, including verification, can still take place at this stage. Although this is a crucial stage in the process, Regulation 2000/60 does not provide further guidance about how it should be conducted. The Directorate receives direct instructions from the Commission about how to carry it out.

The Directorate had to adapt the structures in charge of processing claims to the evolving needs of the process. Until the fall of 2002, case processing was centralized at head quarter in Pristina. By the end of 2002, case processing had been decentralized to the regional offices. Due to their inherent complexity, processing of category A and B claims remained with the head quarter. In 2004, when the priorities evolved from adjudication to implementation, case processing was recentralized again and the CCPU was created. This unit consolidated the processing teams in a single body in charge of processing all categories of claims.

The local legal officers review each individual claim. If necessary they would carry out further investigations, including verification of documents and contacting the parties to obtain further information about the claim. If one party provides new information, in principle, it would be notified to the other parties. The findings and recommendations would then be elaborated in a referral report. Referral reports have been standardized over the years of practice under the instructions of the Commission. The referral report contains the basic information the Commission needs in order to decide a claim as well as a conclusion and recommendation standardized for each sub-category type of claim.

The Commission should be able to assess from the referral report whether notification has been done in accordance with Regulation 2000/60, what documents have been provided by the parties and by the Directorate and the kind of verification the documents have been submitted to (prima facie, verified by official, by comparison, by record, verification unnecessary, etc), whether other claims have been filed over the same property and the date of acquisition of the property right, of lawful possession (if applicable). When possible the legal officer should classify the claim according to the cover decisions used by the Commission. The process of identifying cover decisions will be explained below.

Once the referral report is finished, it will be reviewed by the case manager or the head of the CCPU and forwarded to the Registrar Adjudication. The Registrar Adjudication will again review that the case is processed in line with the recommendations and instructions of the Commission and, if satisfied, would submit the claim to the Commission. The Registrar Adjudication drafts individual and cover decisions for batches of claims and classifies the claims accordingly. Drafts of these decisions are circulated electronically in advance to the international members of the Commission and made available in Albanian and Serbian to the local commissioner. The Commission may send claims back to processing if the Directorate does not adequately prepare the claim referral. It is estimated that the Commission sent back 3,5% of claims for reprocessing.


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Chapter 7: Adjudication of disputes by the Commission This chapter describes essential issues to the decision making process by the Commission. The reconsideration mechanism is addressed in a section of its own due to its importance and complexity. Chapter III of Regulation 2000/60 contains the rules of procedure of the Commission. Section 26 granted the Commission the possibility of adopting additional rules. The Commission adopted a set of additional rules regulating how to process reconsideration requests, certification of documents and other matters not covered by the Regulation. The additional rules are not public but reference will be made to them when needed.

7.1 Hearings The proceedings of the Commission are regulated in section 19. As a general rule the Commission decides on the basis of written submissions. Oral hearings are exceptional and will take place when the Commission considers them necessary to reach a decision. If they are held, oral hearings are public.

As mentioned in the introduction to Part III, the process before the Commission is essentially adversarial. This means that parties submit their evidence and arguments and have the right to know the submissions of other parties and to counter argue. However, the proceedings before the Commission are written and only exceptionally hearings take place. This means that parties cannot argue before the Commission and their only chance to present their case is through the Directorate, which must ensure that parties have an opportunity to present their views and to examine evidences and the arguments of other parties. As a result the Commission has to rely in the case file referred by the Directorate. The file does not only include the evidence submitted by parties but also the evidence gathered by the Directorate, the results of the investigation and a legal recommendation. The Commission often invited legal staff from the Directorate to present cases. This modus operandi is crucial to a situation where many (most) claimants do not enjoy freedom of movement. They could not present their cases before the adjudicating body if oral hearings where the norm rather than the exception. The lack of freedom of movement implies that minority claimants did not have the same means to gather and provide evidence.

7.2 Delegation of authority According to section 19, the Commission may appoint one of its members to carry out any of its functions. It can also delegate to the Registrar and the staff members of the Directorate certain claims’ review and evidentiary functions, subject to its supervision.

At an early stage in the process, the Commission delegated to the local commissioner the authority to review evidence and to carry out hearings. The local commissioner would review the evidence in all cases where the Directorate has proposed to dismiss category


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C cases and in all category A claims. He would also review 80% of the evidence in so called simple contested cases.68

The Commission has delegated certain claim and evidentiary review functions to the Registrar Adjudication. This has happened gradually as capacity and knowledge about legal issues improved. Only recently it could draft decisions on certain claims.69

The Registrar Adjudication forwards to the local Commissioner around 100 to 150 claims per week. If he has comments they will be referred to the full Commission. The Commission will control the process through sampling, meaning reviewing randomly between 10 and 20% of the cases. Sampling is a methodology often used in mass claims process. The Commission will not review the rest of the claims.

7.3 Expedite resolution of claims Section 19 provides tools to decide claims expeditiously. The Commission may use databases and programmes and other electronic tools. It can consider claims raising common issues together and it can issue interim orders.

The use of information technology is fundamental to mass claims processes. Developing a functional database has been an issue for the institution since it started working in the year 2000. First a simple excel sheet was put in place for registering claims and decisions. This proved neither efficient nor secure and efforts were put into having a secured and reliable database. A first rudimentary version was operational by the end of 2002 but it still took quite some time to develop it up to its current functionality. A functioning database is particularly important in a mass claims property processes since it offers the possibility of easily searching for claims over the same property. It also provides a quick overview of the procedural events related to a claim, for example when parties were notified, when verification had been undertaken or when a claim had been referred back to the Directorate by the Commission for reprocessing. However, at a very advanced stage the Commission still needed to remind the staff of the Directorate to search for connected claims before referring a claim. Other useful application of information technology was the possibility of sending electronic versions of the referral reports and draft decisions to the Commissioners before a session. The use of information technology enabled the Commission to hold three electronic/remote sessions until December 2005.

In mass claims process, it is assumed that disputes often derive from a single event affecting a large number of parties in a similar way. Therefore the legal issues are similar

68 Simple contested claims are those where the respondent has brought forward allegations but they are not enough to legally challenge the rights of the claimant. A typical example is respondents that allege to have right to stay in the property because UNMIK, KFOR, KLA or any other entity exercising authority issued them with a temporary permit to stay in the property. 69 C destroyed declaratory order; uncontested category C claims (summary procedure); clear category A1 (dismissed) cases; category C simple contested cases (caretaking agreements or housing permission from KLA, KFOR, etc); claims where the claimant only requests a revision of the prize of a purchase contract; claims where the claimant has failed to submit a valid Power of Attorney; and on reconsideration requests manifestly without merit.


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and can be decided at once. The Commission developed cover decisions for claims raising similar legal issues. The cover decisions were progressively distilled through jurisprudence. Instructions on how to classify cases accordingly, were distributed to the Registry, case managers and to each legal officer reviewing a claim.70 In fact, it took the Commission and the Directorate several years to identify all legal issues in order to develop all cover decisions. According to the information available, a total of 17 different cover decisions had been used by December 2005. Some of them apply to a large number of cases, like those issued when the property in question is destroyed (9,795) which are known as “Category C declaratory order” or to a very few and specific cases, like the so called “Category A1 dismissed”.71 The Chairperson of the Commission signed the cover decision and the Registrar Adjudication certifies the individual decisions.

7.4 Summary procedure The summary procedure of section 23 is the most obvious among the tools available to make speedy decisions. The Commission can grant repossession to C claimants if there is evidence that they were in uncontested possession of the property before March 1989. The Commission can apply the summary procedure to any other uncontested claim.

The definition of “uncontested” was a crucial challenge for the Commission (and the Directorate) in order to resolve claims quickly through the application of the summary procedure.72 According to the information available, a category C claim would be uncontested if:

• the respondent fails to submit a reply to the claim;

• if he or she only refers to his own housing needs for the basis of occupying the disputed property; or

• if his allegations are so vague or ambiguous that cannot be verified or are legally irrelevant.

The Commission required a much lower standard of proof in the summary procedure than in the normal procedure. In practice, when a claim is uncontested and the claimant argues coherently and presents documentary evidence valid prima facie, the Commission would grant an order for repossession without further verification. However, it appears that the Commission has issued further guidelines to deal with verification of evidences in peculiar situations, such as documents proving enjoyment of property rights before 1989 or after 1999. Another example is when the only available evidence of possession is an ID card

70 See section 7.4 on legal processing and referral of claims to the Commission 71 In these cases, the claimant satisfied all the requirements of a successful A claimant but missed one formal requirement to acquire occupancy rights in accordance with the Law on Housing relations. These claimants may be compensated by the Kosovo Trust Agency. These cases created dissatisfaction among the Albanian population with the Commissions performance. 72 Commission Session October 2001.


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issued to that particular address, hence proving possession of the property located in that address by the holder of the ID card. The general principle is that the Directorate should always verify evidence in unusual situations.

By 6 June 2006, 24,706 (84.7%) claims were uncontested and 2,252 (7.7%) contested out of a total of decided 26,958 claims.

7.5 Decisions of the Commission. Procedural aspects Section 22 provides detailed rules about substantial and procedural elements of the decisions of the Commission.

The Commission is bound by its own decisions (…) unless compelling reasons exist for deviating from those principles. This means that the Commission has to be consistent in applying the law to claims raising similar legal and evidentiary issues. A number of mechanisms were put in place to ensure consistency of the Commission decisions with its precedents. First, a decision index searchable by keyword was created. In addition, the review mechanisms described earlier (case manager, head of CCPU, Registrar Adjudication and the Commission itself) should ensure that referral reports and decisions are issued in accordance with the Commissions decisions.

The Commission had decided claims before the claim intake had finalised and a user-friendly database allowing for an efficient search of competing claims was in place. This obviously entailed a risk of subsequent competing claims being brought forward for adjudication. In these circumstances the Commission would reverse its decision by formal resolution and the competing claims would be decided upon together (if necessary after being reprocessed by the Directorate).

According to section 22 the decisions must be reasoned, including the material facts and property rights found by the Commission. The Commission was able at an early stage to define standards reasons. The standard reasons to be included in a decision for a category A claimant to be successful are the following:

• The claimant had a property right (occupancy right) to a residential home or apartment between 23 March 1989 and 24 March 1999;73

• The right is capable of restitution;

• The right was revoked or lost between March 23 1989 and March 24 1999;

• The property right was lost as a result of discrimination.

The standard reasons in a decision for a Category C claimant to be successful are the following:

73 In order to acquire an occupancy tenancy right, the law on Housing Relations imposed three requirements, namely: 1. a decision by the allocation right holder to allocate the apartment; 2. the conclusion of a “contract on use” with the Public Housing Enterprise in respect of the apartment: and 3. occupation of the apartment.” See supra note 11.


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• that he had a property right, that is a right of ownership of, lawful possession of, right of use of or occupancy right to, residential property on March 24, 1999;

• has lost possession of the property;74

• has not voluntarily disposed of the property.75

According to section 22, the Registrar will make the decisions of the Commission or their summaries public. The decisions are published in the internet once parties are notified. If a reconsideration request is filed publication will be stayed until the request is decided upon and parties are notified. The reason for this is to avoid potential misuse of the decision.

7.6 Notification of decisions The decision of the Commission will be delivered to the parties to a claim as provided in section 13.1 of Regulation 2000/60. The decision will be effective from the date of the delivery to the last party, unless the decision or order provides otherwise. Regulation 2000/60 does not impose any deadlines upon the Directorate to deliver decisions. At an early stage the decision was not notified to the respondent until it had been delivered to the claimant and he/she would have either submitted a reconsideration request if the claim had been refused or had chosen to request administration, repossession or closure. Currently, the decision is delivered to both parties immediately. This change contributed to speed up the adjudication and implementation of claims considerably.

The process of delivering the decisions has proven to be more complicated than what initially was expected. For instance, by December 2005 the Directorate had not been able to deliver the decision to a large number of claimants because of the difficult conditions for displaced persons in Serbia who often are forced to change addresses and have no permanent access to a phone. Others are not interested anymore in receiving the decision but are not willing to close the case formally, and simply refuse to receive the decision. When the Commission increased its decision production, the fact that the decisions could not be delivered hindered the ability of the Directorate to implement decisions and put at risk the pace of the Commission decision making process since it became difficult to foresee the rate of reconsideration requests. By December 2005 the numbers of undelivered decisions were:76

74 “The Commission has interpreted that the loss of possession must be in connection with the circumstances preceding, during and following the NATO air campaign. Claimants loosing possession for other reasons must use the local courts”. See supra note 11. 75 Claimants parting with possession voluntarily would be rejected. Claimants handing over possession for care taking and then fleeing would not be considered as being relinquishing voluntarily of their property”. See supra note 11. 76 The Directorate provided this figures on 24 February 2006. On 6 June 2006 an update on these figures was provided: total number of undelivered decisions 3,388 Decisions; Total number of missing claimants 1,091 claimants; total number of claimants reached but idle 2,151. The balance of 146 decisions are within the statutory timeline to be requested implemented i.e. not delivered and the claimant is not counted as missing or idle.


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Undelivered decisions (total) 5.697

Missing claimants 1.697

Claimants reached but idle or unwilling to collect 3.663

To facilitate this task the Directorate created in October 2003 the Call Centre. This unit is responsible for contacting the claimants, informing them of the options arising from the decision and making an appointment with them for decision collection. The decision can be collected in any office of the Directorate in- and outside Kosovo. This unit is also in charge of answering claimants’ queries regarding the status of their case which is also available at the website of the institution.

7.7 Reconsideration Requests Sections 14 and 25 of Regulation 2000/60 provides for the submission of reconsideration requests. Rule 5 of the additional rules of the Commission fills the vacuum of the Regulation and provides further rules as to how the Directorate should process reconsideration requests.

According to section 25, following the establishment of two or more panels in the Commission any reconsideration should be carried out by a different panel than the one that decided the claim or by the plenary of the Commission. The panel will examine all evidence submitted previously and any new evidence and representations with respect to the reconsideration request. According to section 14, a party can submit a reconsideration request to the Commission through the Directorate within 30 days of being notified:77

a) upon the presentation of legally relevant evidence not considered by the Commission in deciding the claim; or

b)on the ground that there was a material error in the application of the Regulation.

When a reconsideration request is submitted, eviction orders will be stayed until the Commission has decided upon it, unless the Commission decides otherwise.

The Commission has only been composed of one panel. As it has been explained earlier, the number of expected claims was much higher so presumably more panels would have been needed. In fact only one panel has sufficed to deal with the caseload. This affects

77 It is interesting that the conditions to file a reconsideration request are regulated in section 14 which is located in the chapter devoted to the rules of procedure of the Directorate. It implies that the Directorate had authority to filter which requests to process depending whether or not they fulfilled the criteria in section 14. The practice, imposed by the Commission has been that the Commission should examine all reconsideration requests, until authority was delegated to the Registrar.


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the reconsideration request process since the same panel that decides upon the claim also decides upon the reconsideration request. A different legal officer than the one who processed the claim in first instance would always process reconsideration requests.

As mentioned before, the Regulation did not regulate in detail how to process reconsideration requests. For example there is no official form to file reconsideration requests, is not clear under what circumstances should the parties be notified, etc. This normative vacuum was filled by the additional rules.

The Directorate must acknowledge the receipt of a request in writing. All submissions titled “reconsideration” or “appeal” or whose content challenges a decision of the Commission should be forwarded to the Registry Adjudication. If the Registry determined that the decision has merits, the request is sent to the Directorate for investigation. In light of the investigation, the Directorate must refer the request to the Commission accompanied by a referral report, additional documents found and a recommendation for granting or rejecting the request. If the Registry determined the claim is without merits it forwards it directly to the Commission for rejection. In this case the parties will not be notified, only informed. In February 2005, the Commission delegated authority to the Registry to review reconsideration requests manifestly without merit. Prior to that date the Commission reviewed all reconsideration requests. Like in first instance decisions, the Registry will draft a decision, which will be signed by the Chairperson of the Commission. If the number of such decisions is high the Chairperson can issue a cover decision.

Section 14.1 determines that the deadline for filing reconsideration requests expires within 30 days of being notified. It appears that the Commission, exercising its discretionary powers under section 19.6, consistently accepts reconsideration requests when filed after the deadline. It seems that the Commission would even review reconsideration requests of respondents that having lost their case before the Commission had applied for housing assistance and received a temporary permit from the Directorate.78 When the successful claimant requests a repossession (which implies termination of the permit) and an eviction order is delivered to the occupant/respondent, then he files a reconsideration request. Obviously, this delays the implementation of the decision and therefore the occupant is able to prolong the use of the property. By December 2005 1.796 reconsideration requests were pending before the Commission but more may have been filed since then. 96 claims were still pending to be decided in “first instance”.

Until 2004, the time elapsed between the moment when a decision over a claim is issued and the reconsideration request is decided upon could be up to seven months or more. Since February 2005, when the Commission delegated authority to the Registry and

78 For details about the issuance of temporary permits for properties under the administration of the Directorate see part V of this report.


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changes where introduced in the system of notification of decisions, the rate has gone down to approximately 2 months.

Chapter 8: Decisions The Commission decides on the claims. Its decisions are final and binding and not subject to review by any other judicial or administrative body in Kosovo. The Regulation however authorizes the Directorate powers to issue decisions in some specific cases, which can be challenged before the Commission. This chapter explains what rights fall within the jurisdiction of the Commission. It provides an overview of the remedies that can be granted and describes how the remedies have been implemented.

8.1 Decisions of the Directorate According to section 10, the Directorate can reject claims if they fall manifestly outside the Commissions jurisdiction. A rejection means that the claim is resolved without being decided on its merits. If rejected on these grounds the claimant might pursue his claim before the regular courts. Claims may be rejected at any stage of the proceedings before the Directorate. Rejections may be challenged by the claimant, and shall then be referred to the Commission for adjudication in line with normal procedures.

According to precedents of the Commission, a claim falls outside its jurisdiction when the property is not located in Kosovo (ratione loci), the property right would have been lost outside the time frame established by the Regulation (rationae temporis) or the property is not residential. A rejection on grounds of lack of jurisdiction is decided formally by the Executive Director. The claimant can challenge that decision and the claim would be processed as any other claim.

The statistics up to December 2005: 79

Claims rejected due to lack of jurisdiction 120

Claims challenging the rejection 34

Section 11 authorizes the Directorate to grant a category B claim by issuing an order for registration in the appropriate records. Such a decision presupposes that the claim is uncontested, and that the Directorate is satisfied that there is sufficient evidence to prove the claimants property right. However, such an order does not affect the right of any other person to make further claims to the property in question.

79 These statistics do not reflect 4000 claims, which were rejected in 2003 because the property was destroyed. The claims were finally processed.


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8.2 Decisions of the Commission The decisions of the Commission determine property rights and grant remedies.

A. Rights

Section 1 of Regulation 2000/60 defines property rights as “any right of ownership of, lawful possession of, right of use or occupancy right to, property”. Most of these rights are familiar to the ordinary reader, and require no further definition. An occupancy right is however a unique concept derived from the legislative tradition of the socialist regime of former Yugoslavia.

An occupancy right is a complex quasi-ownership right, stronger than a regular tenancy right but less than full ownership.80 It is granted for life, and may be inherited by family members but cannot be sold. 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. According to the Law on Housing Relations the occupancy right was acquired in three steps. First, a decision was made by the company to allocate the apartment to the employee. Second, a contract on use had to be concluded with the so-called Public Housing Enterprise. The final step consisted in a lawful occupation of the designated apartment. Other employees according to internal procedures of the company could challenge allocation of an apartment. An occupancy right included an obligation to pay rent for the apartments, but had also to contribute to a housing fund.

Although the occupancy right is awarded for life, the employer could terminate the contract on use. According 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. After 10 years of employment with the company, or 20 years of work in total, the occupancy right could not be revoked under any circumstances. In the former Yugoslav system, involuntary dismissals from employment were extremely uncommon, and this provision of the law was rarely if ever used.81

While ordinary ownership was the most common right in rural areas, the occupancy right was dominant in urban areas. In Kosovo in 1989, there were approximately 30,000 socially owned apartments.82 During the nineties, the Serb authorities initiated a privatisation process, which affected these apartments. Any person holding occupancy right was given the opportunity to buy his apartment and become proper owners.

B. Remedies

By resolving property disputes, the Commission remedies property rights violations. Category A and B reflect property right violations resulting from a discriminatory policy

80 Van Houtte, H., “Mass property claim resolution in a post-war society: the Commission for Real Property Claims in Bosnia and Herzegovina,” in 481 International Comparative Law Quarterly, 625, 1999. 81 See supra note 42 82 See supra note 42


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followed by the authorities in FRY until 1999. Category C claims, reflect the violations of rights by private actors following the 1999 NATO campaign. The categories reflect an involuntary lost of possession and in some cases the negation of the possibility to acquire ownership. The principles to understand the circumstances in which rights were lost and the remedies awarded are regulated in Chapter I of Regulation 2000/60.

According to section 22, a decision of the Commission can be limited to rights of possession over the claimed property if this constitutes an effective remedy. This means that the Commission can settle a claim based on a right to possession, although the claimant in fact alleges a right of ownership to the property in question. The reason for this provision may be sought in the difficulties in determining ownership rights, due to the dire conditions of public records in Kosovo. Section 22.3 states that the Commission may only award such remedies as provided for in the regulation: restitution in kind, compensation or registration of ownership in the appropriate record. Otherwise the Commission must reject the claim or forward it to the domestic courts. The conditions for granting a remedy vary for each category of claims.

A successful category A claimant will be awarded restitution in kind, if:

- the apartment was never privatized.83

- the current owner “first owner” purchased the socially owned apartment when it was privatized during the 1990`s. Such restitution must however fulfil one condition: that he purchases the apartment and becomes an owner. The purchasing price shall be determined by the Directorate, and consist of the following elements; the price concluded by the current owner, or the price he would have been entitled to purchase the apartment under the privatizations process, plus a percentage of the apartments current market value, and the costs of any improvements made by the current owner.84 The successful claimant must exercise his right to purchase within 120 days of the decision granting him restitution in kind.

If the current owner of the apartment purchased the apartment from the “first owner” through a valid transaction, the claimant will receive fair compensation upon enactment of legislation regulating the establishment of a fund, and the amounts and modalities of payment.85

Regarding Category B claims, a transaction taking place between 23 March 1989 and 13 October 1999, that was unlawful under the discriminatory legislation and that otherwise would have been lawful, is valid. If the parties agreed to the transaction in goodwill, the acquiring party would be entitled to an order of the Commission for registration of his/her ownership title in the appropriate public record.

83 Section 3.3 of Regulation 2000/60 84 Section 4.2 of Regulation 2000/60 85 Section 4.4 of Regulation 2000/60


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A successful category C claimant will be awarded restitution in kind, (in terms of repossession or administration) if there are no conflicting rights over the property, namely successful A claims. Where there is a conflicting right which precludes restitution in kind, the claimant will be entitled to compensation in line with the conditions set forth above. Claims for compensation or damage are excluded.86

Chapter 9: Implementation The process of implementation is often equalled with the enforcement of decisions granting repossession through execution of evictions. Implementation, however also refers to other remedies, such as compensation (or registration of title in the appropriate registry).87

9.1 Evictions The actual implementation process commences when the Commission issues an eviction order. The order is executable 30 days after delivery to the current occupant.88 Execution of a pending order shall however be stayed if a party to the claim decides to lodge a reconsideration request.89

The Directorate may, at its discretion, further delay execution of the eviction order for up to 6 months, pending resolution of the housing needs of the current occupant, or under circumstances that the Directorate deems fit.90 This discretion makes it possible for the Directorate in appropriate cases to identify alternative accommodation for the current occupant. There is a range of choices available to the Directorate in exercising this discretion. It may serve the eviction order immediately if the current occupants do not qualify for humanitarian housing. If it determines that the current occupants` own home is damaged but repairable, it may give them notice that they have a limited period of time to repair their home. If it is clear that the current occupant have no other place to go, it may choose not to serve the order until it is able to find alternative accommodation for them. The provision strikes a balance between conflicting rights - the claimant’s right to property and the occupant’s right to adequate housing. If the claimant’s humanitarian need is as strong as those of the current occupant, then it should proceed with the eviction.

If the processed is not stayed or delayed as described above, the process continues with the issuance of a warrant by the Registrar.91 The warrant authorizes the Directorate to

86 Sections 4.4 and 4.5 of Regulation 2000/60 87 Implementation by way of administration will however be dealt with in a separate chapter of this report. 88 Section 13.3 of Regulation 2000/60 89 Section 14.3 of Regulation 2000/60 90 Section 13.2 of Regulation 2000/60 91 Section 13.4a) of Regulation 2000/60


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carry out the eviction. The execution is assigned to the Enforcement Unit (EU) according to the Directorates standard operational procedures

The EU, which currently exist of two sub-units (Pristina and Prizren) schedules evictions and executes them with support of local law enforcement authorities.92 Normally the support consist of one international UN Civilian Police and one or two local officers of the Kosovo Police Service. The cooperation takes place on the regional level. In case the security situation so requires, the Enforcement Unit may request assistance from KFOR.

The EU shall notify the claimant of the exact date of the eviction, and make arrangements for handing over keys.93 The duty to inform the property right holder during the process serves the purpose of confirming the request and willingness to carry it through, as well as preventing any misunderstandings regarding the handover. A decision for repossession is implemented on the agreed date for handover of keys. Any person, who, without lawful excuse, enters the property by breaking the seal of the HPD, may be subject to removal from the property. This is however not the responsibility of the HPD, but the responsibility of the local law enforcement authorities.94

The standard operational procedures of the Directorate provide further guidelines for how the process shall be carried out. The overall responsibility lies with the Executive Director. This responsibility is however delegated to the head of the Enforcement Unit. Evictions shall normally take place between 09.00 and 17.00 any day throughout the working week. No evictions shall be executed on public holidays. The EU shall screen the file, and seek confirmation from the property right holder that no agreement has been made with the current occupant outside the claims process, and no temporary permits have been issued by the HPD. The unit shall schedule all evictions one week in advance, and request for assistance must be made no later than 72 hours prior to the scheduled time. The process may be aborted or postponed for a variety of reasons. This may be the case if there are serious security concerns related to the eviction, or if the property is judged inhabitable. If the eviction involves sensitive political issues, the EU shall postpone the eviction and notify the Registrar or the Executive Director. An eviction may further be aborted or postponed if the current occupant provides new documents proving his right to stay in the property. If the unit decides to proceed with the execution, the occupant shall be allowed a short period of time to make arrangements for the immediate removal of personal belongings. The process continues with the removal of the occupant and his belongings, followed by change of locks and sealing off the entrances. When the property is vacated, the unit shall take all necessary steps to secure the premises and prevent damage, such as disconnecting water and power supplies and recording of their meters. Post-eviction inspections shall routinely be carried out and findings documented in the case file. For the handover, the claimant shall provide a valid ID-card, or a power of attorney to his representative. If the property right

92 Section 13.4 of Regulation 2000/60 93 Section 13.6 of Regulation 2000/60 94 Section 13.6 of Regulation 2000/60


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holder fails to approach the HPD at the agreed time for handover, the unit must contact the party and inform him that the case will be closed and that the HPD has no further liability for the property.

In cases related to destroyed properties, and if illegal activities such as construction work are being carried out, the HPD shall inform the proper authorities and request verification of any building permits.

9.2 Other forms of implementation The Directorate issues certificates for registration, which are forwarded to the Kosovo Cadastral Agency (KCA). It also informs by letter the successful B claimant that registration with the KCA requires his personal request for the registration to take place. Some problems have been reported about the dynamics of this, in principle, simple operation. It appears that the KCA cannot register properties unless the owner or legitimate possessors files a request to do so. The Directorate sends all decisions to the Cadastre to avoid fraudulent registration. However, until the successful claimants themselves come forward, the title cannot be entered in the registry. Another problem is that the Cadastre still does not register apartments, only houses. It is also reported that sometimes the information coming from the Directorate is not precise in terms of the location and identification of the property.

There is very little information available regarding progress in the implementation of the purchase and compensation schemes. These schemes are necessary for:

• successful A claimants to purchase properties from so-called first owners.

• successful A claimants who cannot purchase their properties because the current owner validly purchased the property form the so-called first owner and a right to compensation arise for the successful A claimant; and

• successful C claimants that had validly purchased the property during the 1990s but are entitled to compensation and not restitution in kind because there is also successful A claimant.

Regulation 2000/60 imposes obligations upon the Directorate to issue certificates stating what should be the purchase prize. It also refers to legislation that will be further elaborated to determine the amounts and fashion of compensation. None of this has happened yet. The regulation imposes a deadline of 120 days on successful claimants to exercise their right to purchase. This deadline has expired in many cases but successful claimants affected by it had no chance of actually purchasing the property. The Directorate has forwarded draft legislation to the SRSG in August 2005 but there is no further information about the status of implementation of these remedies.


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PART IV: EVALUATION OF THE RESOLUTION MECHANISM

Chapter 10: Introduction Disputes over property rights will under normal circumstances fall within the responsibility of the ordinary judicial system. According to international human rights standards everyone is entitled access to a court in the determination of civil rights and obligations. To remove jurisdiction away from the regular court system needs to have compelling reasons

At the time when UNMIK deployed in Kosovo, no functional court system existed. Civil courts started only to be operational in the spring of 2000. With limited resources at hand and with an existing backlog of cases, serious doubts could be raised as to what extent the regular court system had the ability to handle new claims stemming from the recent historic event. The establishment of an ad hoc international dispute settlement body was thus intended to provide affected parties with a remedy, which could effectively adjudicate their claims.

An alternative to the establishment of the HPD would of course be to let the regular courts keep its jurisdiction over the disputes, and redirect the funds needed by the new institution to the judiciary. To what extent this was seriously considered is unknown. No sources consulted in this report have suggested that the decision to establish the HPD at the time was ill founded.

More than six years later there is an opportunity to reflect on that decision, and to evaluate the success of the intervention. A minimum requirement for a positive conclusion would have to be that the HPD has managed to resolve these disputes more adequately than what the regular court system would be able to. Unless this can be established, the whole rationale behind its establishment would be flawed.

The assessment uses the criteria of fairness and efficiency, which basically means that the report will focus on two issues. Efficiency means that the disputes must be resolved within a reasonable time. Fairness means that the process used to determine the outcome of the claims must comply with minimum procedural standards and that the final results are conceived to be just.

It is questionable whether or not the decision to establish a restitution process as described above follows from any obligation under international law. It was rather a political decision made by the SRSG which was based upon the recognition of the importance of providing protection of property rights for the individuals concerned, as well as the fundamental role such rights play in rebuilding peaceful and viable societies in the aftermath of war. As stated previously part of the overall objectives of the institution’s activities was to facilitate the return of refugees and displaced persons to the territory and to contribute to the rule of law in the province. To assess the institution’s impact in this regard falls outside the scope of the report. However, we hope that despite the limited scope, the assessment should be able to shed some light on these issues, given its importance for the overall picture.

Resolving property disputes in the aftermath of war is a new endeavour in international peace building operations. This poses certain challenges for the evaluation because it


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makes it somewhat difficult to put the process into the right perspective through comparing it with other examples. Even if similar processes can be found, the context and the models used vary so much that a comparative analysis has limited value in regards to the criteria used in this evaluation. To the extent it is deemed relevant, references will however be made to the restitution process undertaken by the Commission for Real Property Claims in Bosnia and Herzegovina.

Throughout the restitution process, the institution has received substantial criticism for its performance by a number of stakeholders, such as the donor community and the people of Kosovo at large. The assessment will attempt to deal with the criticism and put it in to the proper perspective.

The post-war situation in Kosovo has been far from ideal to operate in. The ethnic tensions in the province have been present throughout the whole operational period. Despite considerable efforts by the international community, insignificant progress has been made in terms of rebuilding a multi-ethnic society. Although Kosovo today is fairly stable, it is widely recognized that the security situation for the minority population still is far from being satisfactory. Their freedom of movement is severely restricted, and most of them are displaced to Serbia proper and Montenegro, while others remain confined to enclaves within the territory of Kosovo. These circumstances have had particular implications for the work of the institution, which will become evident throughout this assessment.

The institution has further worked in an atmosphere of resentment and distrust. The Albanian population has opposed the overall objective of bringing the minority population back to their communities. The Serbians, on the other hand, has felt that to engage in the process would legitimise the international presence in the province, and thus contribute to the preservation of Albanian dominance. This general attitude towards the institution has also played a significant part in its ability to carry out the process. Any conclusions pertaining to the institution’s performance cannot be accurate without taking this into account.

The assessment must further be based on the regulatory framework of the institution. It is this framework, which sets the standards by which the process has to be carried out. If the process is carried out accordingly, the institution must be considered to have achieved its purpose of resolving property disputes in a fair manner.

Regulation 2000/60 has detailed provisions on how the property disputes involved in the process should be settled. As already explained in the introduction to this part of the report, the regulation was subject to careful scrutiny before it was finally adopted. An assessment of the framework as such falls outside the scope of this report. However, it should be pointed out that the regulation has the necessary qualities needed to resolve property disputes in a fair and efficient manner. On the one hand it includes comprehensive procedural rights, adapted to the particular circumstances in Kosovo, which comply with minimum standards of fairness set for a dispute settlement body. On the other hand it includes flexible procedures, which enable the institution to resolve disputes efficiently.

The existence of a sound legal framework alone, is however not sufficient for the realization of the objectives of the institution. The institution must be put in place at a scale adequate to implement that framework. This requirement has not been met. The Directorate and the Commission has not been adequately resourced. This is a direct consequence of inadequate levels of funding from the international community.


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Throughout the operational period, the institution has been severely understaffed. During the first few years, the institution’s activities were further hampered by the absence of a functional IT-system, which is essential to the processing of mass claims.

In terms of the assessment, the most interesting issue is thus to what extent the institution has managed to implement the framework in light of the resources made available throughout the period of operations, as well as in light of the conditions presented in Kosovo. Throughout the assessment we will try to introduce issues pertaining to the institution’s activities, which are relevant in terms of the criteria applied.

Chapter 11: In-take of claims

11.1 Production/Statistics The claims intake period lasted from 15 November 1999 until 1 July 2003. By the end of that period the Directorate could present the following registered numbers of claims:

Year Total A B C

2000 1.029 257 59 728

2001 6.346 384 231 5.745

2002 17.684 288 202 17.217

2003 4.005 285 261 3.469

Total 29.133 1.214 760 27.159

11.2 Efficiency These numbers are far lower than what was expected. Initial estimates done during the planning stage suggested that the total numbers of claims could be over a hundred thousand. Thus, a question that needs to be answered is to what extent the discrepancy may be attributed to bad performance by the institution.

It seems to be a well-documented fact that Habitat as the implementing agency from the outset had difficulties in establishing an organization that could carry out the mandate of the institution. Delays in providing resources affected the hiring of staff, procurement of vehicles and the necessary office support. This seems to have been a result of lengthy bureaucratic and administrative procedures, as well as lack of coordination between the institution and its partners.

This obviously had an impact on the claims intake process. The actual claims intake did not start until June 2000. It further impeded on the ability of the institution to establish a proper presence in the field. For a considerable time period, claims intake only took place in Pristina and the surrounding areas. It was only later, that the institution gradually managed to establish field offices throughout the province.

The initial deadline for claims intake envisaged in the regulatory framework was set for 1 December 2001. The slow progress however caused the deadline to be extended several times. Throughout this period, the institution was subjected to heavy criticism, and its reputation was badly stained for a considerable time to come.


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This criticism may partly be justified. On the other hand it seems fair to say that the criticism was partly based on unrealistic expectations and incorrect assumptions by the various stakeholders. First of all, the complexity of the institution’s mandate should be recalled. Besides carrying out the task of collecting claims, it also had to attend to other responsibilities stemming from the mandate. The survey related to the administration of properties was envisaged to be a priority. Further, extensive research had to be carried out to prepare for the processing of incoming claims. The efforts put into this in the early phase tend to be forgotten.

Secondly, the institution was for a considerable period prevented from initiating claims collection in Serbia and Montenegro. The agreement between Habitat and the Serbian authorities was not in place until November 2001. The delay experienced in this regard cannot be attributed to the institution itself. This was a sensitive issue, which rather had to be resolved at the highest political level. A quick glance at the table above indicates that the access to Serbia and Montenegro was the single most important precondition for achieving progress in the claims intake process.

Finally, some remarks related to the actual number of collected claims should be made. It has been mentioned that the outreach campaigns initially carried out by the institution to inform about the dispute settlement mechanism was inadequate. The campaign failed to reach members of the Roma and Bosnian communities, as well as members of the Albanian and Serb Diaspora, and its members were thus prevented from submitting claims to the institution.95

However, the general impression is that most claimants have been given the opportunity to file their claims. This have been confirmed by several sources, and is supported by the fact that the deadline for filing claims was extended several times backed by subsequent information campaigns, and thus lasted for more than three and a half years all together.

The explanation for the discrepancy between the initial estimates and the actual number of claims must be found elsewhere. Available information clearly point to at least two separate circumstances outside the control of the institution. First of all, the estimated numbers seem to have been based on wrong assumptions in regard to claims filed by Serbs. These numbers were based on information retrieved from UNHCR`s records of internally displaced persons in the region. This proved however to be inaccurate, due to the fact that a significant number of displaced persons had been registered more than once.

While this may account for some of the discrepancy in regards to the category C claims, explanations for the low numbers of the other categories of claims must be sought elsewhere.96 First of all it seems likely that the estimates were based on wrong assumptions from the outset. During the year of 1990 more than 150.000 Albanians were

95 See OSCE Mission in Kosovo Report, Property Rights in Kosovo 2002-2003. 96 The main sources for anticipating such an elevated number of A and B claims were the interviews conducted by Habitat during the initial research.


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dismissed from their work as a result of the discriminatory policies applied by the Serbian authorities. Although housing rights under the Serbian regime were closely related to employment, dismissals did not automatically result in a loss of their apartment. A closer examination of the events showed that a proportion of those affected, did in fact keep their apartment, while others successfully applied to the court for reinstatement of their occupancy right.

Another plausible explanation may be found within the Kosovo Albanian community. For historical reasons there is great reluctance among Albanians to address claims to government authorities due to a general lack of trust. The communities often prefer to resolve matters within their own rules, traditions and networks. It has further been suggested that the fact that legalizing property rights can also mean registering with the tax authorities may have dissuaded potential claimants. Lastly, it is also possible that threats and coercion by groups of criminals may have impacted on the Albanians will to submit claims to the institution.

11.3 Access to Court The settlement of property disputes within the context of the HPD involves the claimants civil rights and obligation, as spelled out in article 6 of the ECHR. One of the rights guaranteed by this provision is that the concerned individual shall have access to a tribunal in the determination of such rights.

The decision to give the HPD exclusive jurisdiction over certain categories of claims implied that the individuals concerned were denied the possibility to have his claim adjudicated by the regular courts in Kosovo.

In terms of access to a court this appears at first instance to raise human right concerns. However, what may seem to be a denial of the right to access a court, in fact turned out to be an essential part of complying with those requirements.

This relates to the security situation in the province. At that time, and even to some extent today, the freedom of movement for the ethnic minorities has been severely restricted. If they would have to approach a regular court in Kosovo to file a claim, they could be exposed to a security risk, which effectively would have prevented them from initiating any proceedings what so ever. Through its claims collection, the HPD has in fact played a vital role in securing these claimants right to access a dispute settlement body.

By pro actively approach the displaced minority population, they have not just overcome the security issue. It has also managed to reach claimants who would have to face other and less dramatic obstacles in the pursuit of their rights, such as financial issues, lack of legal counselling, long distances of travelling and so forth.

The claims collection undertaken by the institution would not be possible under the ordinary judicial system and has thus, without a doubt been an essential part of bringing justice to the minority population of Kosovo.

11.4 Conclusion 1. The claims intake period lasted much longer than what was intended. Lack of progress in collecting claims may partially be attributed to the institution’s difficulties in establishing a functioning organization, as well as conducting a sufficiently comprehensive information campaign. Partly it relates to other factors outside the control


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of the institution. Perhaps most importantly so is the wrong assumption on the total number of claims, and the difficulties in gaining access to displaced claimants in the regions outside Kosovo.

The lack of progress in the early phase of claims intake has however not affected the total number of claims. The long intake period has rather served to ensure that anyone who had a claim over properties was given an opportunity to submit their claim.

It is however likely that the extended period of claims intake has affected the institution’s ability to resolve the claims as speedily as possible, since it delayed the redirection of focus and resources to other parts of the claims processing.

2. The collection of claims has played an important part in providing concerned parties access to a dispute settlement mechanism. If the disputes were to be adjudicated by the regular judicial system it would have reduced substantially the numbers of claims made by the ethnic minority population.

Chapter 12: Resolution of disputes

12.1 Production/Statistics By the end of 2005 the institution had decided claims as follows:

Year Total A B C

2001 228 8 1 219

2002 1.204 6 1 1.197

2003 8.294 164 17 8.113

2004 9.766 364 470 8.932

2005 9.564 645 270 8.649

Total 29.056 1.187 759 27.110

The fact that the total number of claims amounted to 29.133, left a total of 77 claims still to be decided.97

12.2 Efficiency Mass claims processing

Article 6 of the ECHR requires that court proceedings shall take place within reasonable time. Delay in legal proceedings is a general problem in many legal systems throughout Europe, and has been subject to much scrutiny by the European Court of Human Rights.

97 According to statistics received from the institution the number should be 96 claims pending; 28 category A, 6 category B and 62 category C.


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Judging from its jurisprudence, what constitutes reasonable time depends on the specific circumstances of the case. One factor that has been taken into account is the complexity of the case. Another factor is whether the parties themselves have contributed to the delays. However, the Court has defined what time span is relevant when it considers the requirement. Accordingly, the starting point should be when the claim is received by the court, and continues until a final judgment is made. This includes the time it takes to process an appeal. Further the court has been inclined to take into consideration the amount of time it takes to implement the decision.98 The reasoning for this has been that it is only when the decision is implemented that the rights become effective.

Perhaps the biggest criticism the institution has had to face over the years has been the lengthy proceedings related to the determination of the claims. This criticism has been made by various stakeholders, and has been particularly strongly voiced by the Ombudsperson on behalf of many of the claimants. The Ombudsperson has alleged that the institution in many cases has violated international human rights standards, by pointing to instances were it has taken up to five years to decide on a claim.

Although the criticism is understandable, the allegations seem to be based on a slight misconception. While article 6 in general relates to processing of individual claims under ordinary circumstances, the process used in Kosovo must relate to a situation of mass claims. The concept of mass claims processing can broadly be understood as a process designed to deal with a high number of claims that arise out of the same extraordinary situation or event, and are filed with the decision making body within a limited period of time. The claimants in a mass claims process are generally in the same situation, having suffered the same or similar losses within the same period of time. The fact that the HPD has received some 29,000 claims pertaining to the crisis clearly indicates that the situation qualifies for a mass claims process.

This has significant implications for processing of the claims because the overall objective of the process becomes to provide a fair and efficient remedy for all claimants, rather than for the individual claimant as such. In these circumstances, processing claims according to a chronological order cannot be used as the overriding criterion in determining which claims should be processed first. Focusing on individual claims based on dates of filing would encumber and slow down the process and thus adversely affect the legitimate interests of the great majority of the claimant population.

During the operational period the institution seems to have made one fundamental priority related to the processing of claims. In 2002 the Commission decided on a strategy for processing which meant that the institution first should focus on the category C claims. It seems like the decision was motivated by several factors. The demand on the institution to produce high numbers of claims was highly present at the time. The only way to achieve this was to start with those claims, which constituted the most significant part of the institution’s portfolio of claims. These claims were best suited for mass claims processing, and the institution put much efforts into establishing procedures,

98 ECHR, Martins Moreira vs. Portugal, Scollo vs. Italy


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which later generated a considerable increase in production numbers. These claims were easier to resolve. A considerable proportion of the category C claims were undisputed. Without giving rise to genuine legal disputes, these claims could be subjected to summary procedures, which basically required little more than rubber-stamping to be resolved. Available information also suggests that the priority was a response to politically motivated calls from UNMIK.

This decision had first and foremost an impact on Albanian claimants, which had been able to submit their claims (category A claims) at an early stage in the process. Many of these claimants have thus had to wait for a considerable time for their decisions. This is of course unfortunate. To deviate from a chronological order of processing claims requires good reasons. Available information suggests that the decision made by the Commission was well founded given the circumstances surrounding the processing. The institution significantly managed to respond to the demands for higher production and was able to reduce the time span required to resolve the simple cases, corresponding to principles set by the European Court of Human Rights in their jurisprudence.

Resource implications There are of course other factors which impacted on the institution’s ability to process claims rapidly. The overall financial situation of the institution has had obvious implications. If the Directorate had more staff available, and the Commission could have established another Panel, it would clearly have contributed to a more speedy resolution of the institution’s portfolio of claims. The institution’s performance was further hampered by a lack of a functional IT-system. Although the significance of a proper IT-system to facilitate mass processing of claims was pointed out at a very early stage, the institution was not able to put in place a functional system until 2003. There may have been various reasons for this, but an important part of this was the fact that funding was not forthcoming. Such a system would facilitate better coordination of the Directorate's claims processing in terms of information and documentation, and would greatly affect the institution’s ability to handle more claims.

As explained earlier on, the limited resources forced the institution at one point to make priorities related to the implementation of its mandate. Not just by narrowing down the mandate, but also in terms of carrying out the restitution process. Instead of being able to do the various operations simultaneously, the institution had to focus its attention on the process, step by step. This may explain why the institution itself roughly speaks about three main phases of operations; claims-intake, processing and implementation. The lack of progress in collecting claims, as describes above, thus may have impacted on the institution’s ability to start resolving great numbers of claims at an earlier stage.

With limited resources at hand the question arises as to what extent the management could have made better priority of the available resources. A significant issue in this regard is that of centralization versus decentralization. During the first few years of operations, the Directorate had a centralized structure. Processing of claims, including verification was undertaken from the head quarter in Pristina. During the fall of 2002 the institution gradually started to decentralize its activities to the regional offices. This generated an obvious advantage in terms of efficiency. This decision, together with additional secondment of international lawyers made it possible to drastically increase the numbers of claims referred to the Commission. It may be argued that the decision should have been made at an earlier stage. However, this presupposes that the institution already had a coordinated approach to the activities. This is usually most effectively


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established from the head quarter, in close interaction between management and the Commission.

Judicial procedures

This further illustrates a general aspect of the restitution model used in Kosovo. A court driven mechanism is by nature not the best model in terms of achieving efficiency. A court decides on individual cases, and only through its jurisprudence does it provide directions and guidelines for other cases. Disputing parties do not know in advance what the court will base its decision on which may affect their preparation of the case. A similar situation is found here, although the Directorate carries out the preparation, rather than the parties involved in the dispute. Although the Commission has had the option of providing guidelines in terms of additional rules, it seems as if it has been reluctant to do so. This has left the Directorate with little guidance in preparing claims. This seems particularly evident during the early phase, and may have caused the Directorate to undertake processes such as notification and verification without proper guidelines. This in turn may have affected its use of resources pertaining to each claim.

It should further be pointed out that the institution depended on a regulatory framework before starting to process claims. Regulation 2000/60 was adopted in October 2000, almost one year after the establishment of the institution. This by itself prevented the institution from starting the processing at an earlier stage. Per haps more importantly though, is the fact that the institution had to divert much of its resources to the preparation of this regulation.

Lastly, the issue of notification should be highlighted. The regulatory framework provides for an adversarial process, which meant that the institution had to undertake a comprehensive process of notifying parties of the claims. Compliance with the regulatory requirements was a precondition for referring claims to the Commission. This presented a number of challenges to the institution. Finding the right property to serve the notification was difficult due to change of addresses and names on streets and neighbourhoods. Once the property was located, many respondents failed to cooperate. Occupants made sure they were not home when the notificator approached the property, refused to open the door or simply did not acknowledge receipt of the notification.

During the early phase of processing, the notification of claims, like much of the other activities related to the processing took place randomly, or at best by chronological order. This impeded on the ability of the Directorate to serve the notifications efficiently and bring the preparatory phase one step further. In the late fall of 2002, the Directorate decided on a new approach by serving notifications based on the geographical location of the properties. This coordinated effort resulted in a significant increase in the number of notifications per day. Even if the internal information system necessary to achieve maximum effect was crippled due to lack of a proper IT system, it seems fair to say that the Directorate should have implemented this approach at an earlier stage.

The European Court of Human Rights has never had to consider the particular requirements of article 6 in terms of "reasonable time" in a quasi-judicial body created to conduct mass claims processing. It seems quite obvious that even if the ECHR would be applicable, there has to be a wide margin of appreciation in how to carry out such a process, and that the notion of speedy resolutions of claims would have to be interpreted more lenient than under normal circumstances. Although the arguments made by the institution in response to the criticism by the Ombudsperson are valid, the question remains how far they may be applied. It cannot be ruled out that the European Court of


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Human Rights would be inclined to enforce an absolute deadline, and thus at some point state that the rights of the individual claimants would have to be given precedence. The exceptional circumstances confronting the HPD in the aftermath of the armed conflict in Kosovo, and the particular factors pointed out above however suggests that it is difficult to pay merits to the allegations of violations of the rights of individual claimants voiced in this regard.

The HPD and the CRPC

The overall performance of the institution in terms of efficiency is as described above difficult to assess, given the lack of pertinent examples to compare with.

Even if the restitution process undertaken in Bosnia has many similarities with the one undertaken by the HPD in Kosovo, there are important differences. First of all, the complexity of the legal issues in Kosovo has been higher than in Bosnia. While the CRPC basically handled uncontested claims, the HPD has also processed claims that present genuine legal disputes. Although the HPD received far less contested claims than expected, they still constitute a greater proportion of the overall portfolio of claims than what seems to be the case in Bosnia. Secondly, the regulatory framework used in Kosovo is based on an adversarial process, which was not the case in Bosnia. The adversarial requirements caused the HPD to undertake a process of notification of the parties involved in the disputes that proved to consume considerable resources. Thirdly, the HPD was deprived from using presumptions and inferences. This meant that the HPD would have to put more effort into resolving each individual claim. Fourth, the property rights registers in Kosovo were in poor condition, and complicated the assessments of evidence and the institution’s verification process. Finally, the mandate of the two institutions differed in the sense that while CRPC did not have responsibilities regarding the implementation of its decisions, the HPD was given responsibilities for enforcing its own decisions.

The CRPC closed down operations and completed its mandate by the end of 2003. The institution experienced many of the same problems encountered by the HPD in Kosovo. Most notably, both institutions had difficulties in establishing a functional organization from the outset. It was only after a certain time period subsequent to its creation that they managed to become efficient in dealing with the claims. Both institutions further had to tackle security concerns affecting the freedom of movement, and encountered (initial) problems related to the funding of its operations.

The scale of the two operations, both in terms of numbers of claims and available resources, vary greatly. One way of assessing the HPD in terms of efficiency would be to compare data from the two institutions pertaining to the costs involved in solving each individual dispute. Such data has unfortunately not been accessed. For reasons mentioned above it would however still not be able to give an accurate description of performance.

The HPD and the Courts

Without possibilities to conclude on the HPD’s performance in terms of efficiency by comparing it to other restitution mechanisms, the ultimate test would have to be sought elsewhere. As explained in the introduction to this assessment the whole operation would loose a vital part of its purpose if the regular court system in Kosovo would be capable of processing the same portfolio of claims as rapidly as the HPD. This is of course a hypothetical situation and can only give grounds for speculation. We have


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however reasons to believe that the court system would not have been able to achieve the same results.

The dire state of the court system has been voiced as a great concern throughout the operational period of the HPD, and there have been little sign of improvements.

The courts have been and still are seriously under-resourced and under-staffed. There is a lack of adequate court facilities, archives, etc. There are concerns about the lack of sufficiently adequate trained personnel. There is a large backlog in processing the caseload, not to mention enforcing judgments.99 A court survey arranged in 2004 estimated that it could take as long as three years to decide a case.100 The Department for Justice Administration assessed the same year that the current backlog would not be cleared for the next 5 to 10 years. The Department for Justice Administration, in spite of the backlog, has had little flexibility to increase the budgets.101

Even if the courts would benefit from additional funding, they would be bound by regular court procedures. These procedures are not designed to facilitate speedy resolution of mass claims. Each case would have to be processed chronologically, be subjected to an oral hearing, an appeals mechanism and a number of other procedural guarantees that consequently are time consuming.

Although it may be concluded that the dispute settlement process provided for by the institution has been the best option available in terms of providing an effective remedy and, given all the circumstances, may be said to have carried out its mandate reasonably efficient this is of little consolidation to the involved claimants. Having to wait for three years or more for a decision is a considerable time period, judged by most standards. It seems quite evident that the length of the proceedings has generated a sense of apathy and disinterest towards the restitution process among most claimants.

12.3 Impartiality A fundamental requirement to a fair process is that the decision making body must be impartial. This is perhaps obvious, but the jurisprudence of the European Court of Human Rights relating to article 6 of the ECHR suggests otherwise. The concept requires the dispute settlement body to act objectively and not be influenced by irrelevant circumstances. More specifically it aims at preventing bias inside the court. It shall in fact adjudicate impartially, and it shall be perceived by the public to do so.

The decision to establish the HPD was, in addition to achieve speedy resolution of the claims, intended to provide the claimants with a settlement body, which could adjudicate

99 OSCE Mission in Kosovo Reports on Property Rights 2001 and 2002-2003. 100 Moratti, M., Philpott C. and Wicklin B., Feasibility study to assess the scope and nature of work for an alternative dispute resolution mechanism for land and private commercial disputes in Kosovo: Final Report, Prepared by ECO for the European Agency for Reconstruction, December 2004. 101 Judges interview in the course of this evaluation commented on the lack of resources in the judiciary and expressed satisfaction with the exclusiveness of the HPD`s jurisdiction.


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the claims in an impartial manner. The situation at the time was marked by great tensions between the ethnic groups. The Albanian population had gained control over the judiciary by appointing Albanian judges to the courts. Their impartiality could thus be questioned. To establish an internationally supervised dispute settlement body was seen as the only option to meet the requirement of impartiality.

Impartiality is, first and foremost ensured by the Commission. According to the regulatory framework the majority of its members shall be international judges. Thus, any claim submitted to the HPD will ultimately be subject to scrutiny by a body without ethnic preferences. The regulatory framework is however silent about the ethnic composition of the local commissioners. The CRPC in Bosnia had two commissioners from each ethnic group. In Kosovo the local commissioner has been an Albanian. The Serb authorities and claimants have criticized this fact. It is likely that having a minority commissioner would have improved the perception of the Commission as an impartial body during the initial phase. As the process has moved along, the criticism has silenced.

Impartiality is further ensured through the international supervision established in the Directorate. The regulatory framework does not explicitly require this. In recognition of the important role played by the Directorate in resolving the disputes, international lawyers and other personnel have been employed in key positions of the institution throughout its operational period.

During the operational period the Directorate has mainly been composed of local employees of Albanian ethnicity. This is unfortunate, but seems to reflect the realities in Kosovo. The institution has been aware of this and made considerable efforts to recruit staff from the ethnic minority population.

Although attempts has been made by both ethnic groups to label the HPD as an institution benefiting one side in the ethnic conflict, this does no longer seem to be an issue. The institution has gradually gained acceptance by the parties, and is today perceived as a largely impartial dispute settlement body. The international supervision must be seen as the greatest single reason for this. However, credit should also be given to Habitat for its design of the mandate. The proposal to include claims associated with both ethnic groups seems to be an important contributing factor for the overall perception of the institution.

It is also worth mentioning that the regulatory framework does not open up for use of presumptions and inference in regards to the assessment of evidence. During the drafting of the regulatory framework, considerable time was spent to debate whether to incorporate a presumption on discrimination in regards to the category A and B claims. The use of presumptions has clear benefits from an efficiency point of view and is often used in mass claims processes. The decision not to include such rules in determining whether discrimination had taken place was based on considerations related to impartiality and may have benefited the institution in this regard.


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A particular issue of importance is that of qualifications for handling individual claims. Case law from ECHR shows that a number of circumstances pertaining to a case can render a person disqualified from taking part in the proceedings. Although most of the case law relates to criminal cases, it is quite clear that the principle is applicable in civil actions as well. The regulation has a particular provision, which relates to the members of the Commission.102 The provision sets forth that no member shall take part in any proceedings on a claim if they have a personal interest, if they have been consulted by or are associated with a party to the claim, if they have been involved in any legal proceedings on the claim other than in relation to the HPD, or if there are other circumstances which may affect their impartiality. The provision is far reaching and seems to cover those circumstances, which have been dealt with by the European Court of Human Rights. Available information indicates that the provision has come into effect on several occasions. No information suggests that individual complaints have been made about how it has been practiced.

Similar provisions do however not exist in regards to the staff of the Directorate. As already pointed out the written procedures used to process claims for adjudication implies that the preparatory stage becomes more important than under ordinary proceedings, where the parties have immediate access to the judges. This should have triggered the Directorate to adopt additional rules on the matter to prevent bias at the preparatory stage of the claims processing. The Directorate relies heavily on local staff. Such rules would be able to provide guidance to the local staff on how to act if such a situation should arise. This in turn would raise awareness of the issue within the Directorate and could possibly contribute to the HPD’s overall reputation as an impartial institution.

12.4 Procedural fairness Adversarial proceedings

A minimum requirement for procedural fairness is that the disputing parties are afforded equality of arms. The parties shall have equal rights to argue their case before the court. 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 at substantial disadvantage vis-a-vis his opponent.103 The European Court of Human Rights 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.104

Under ordinary court proceedings these requirements are provided for through a public hearing were the parties meet and argue their case directly before the judges. This was

102 Section 17.12 of Regulation 2000/60 103 ECHR,Kaufman vs. Belgium 104 ECHR, Ruiz-Mateos vs. Spain


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for obvious reasons already mentioned not possible to achieve to any extent in Kosovo. Thus, the regulatory framework offers a process in which the parties have to argue their case through written submissions and provision of documentary evidence.105

This has a significant implication because it deprives the parties the possibility of immediate access to the adjudicating body. Instead of being able to present the case directly to the members of the Commission, all information will be subjected to a process undertaken by the Directorate, which then becomes a filter. The Directorate thus has been given a significant role in connection with the resolution of the disputes because it controls much of the information and facts, which the Commission will have to adjudicate upon. Correspondingly it becomes of paramount importance for the Directorate to implement its responsibilities diligently, impartially and strictly in accordance with the regulatory framework.

General concerns related to the claims processing

The ability of the Directorate to implement the framework properly depends on a variety of factors. Per haps the most important one is to have sufficient resources to handle the incoming caseload. This has been mentioned earlier in connection with the institution’s ability to perform efficiently, but is similarly important in terms of conducting fair proceedings. The discrepancy between the high production rates and the low numbers of staff members of the Directorate has perhaps been most prominent during the latter part of the operation. This has resulted in a situation where the staff member of the institution has been placed under severe pressure to produce substantial number of claims per week to meet their targets.106 It goes without a saying that the risk of making mistakes is highly present under such conditions. The situation lowers the threshold for the staff to attempt to cut corners and take short cuts to comply with the set targets.

It is further of great importance to have internal procedures in place, which are capable of providing necessary guidance to all staff members involved, as well as to facilitate the international supervision of the process. Our findings suggest that the Directorate during the first few years of the operation struggled to establish procedures related to essential areas of the processing. It was, for instance not until 2003 that it managed to install a secure system for information handling, as well as developing a coordinated system for the processing order. The findings also suggest difficulties in establishing a proper system for communicating information and instructions received during the sessions of the Commission. It is likely that this has caused a considerable amount of uncertainty for the staff members of the Directorate in carrying out its tasks. It has further been suggested that individual employees may have taken the opportunity to exploit the system for personal benefits.

105 Section 19.1 of Regulation 200/60 106 According to information from the Executive Director, the latest numbers are as follows; 25 uncontested C-claims , 40 claims involving destroyed properties, 15 contested A and C-claims.


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In general, in-depth legal cooperation between international legal experts and member of the local legal community is extremely challenging.107 Besides the problematic communication gap, it appears to have been difficult to recruit local staff with the necessary professional skills and flexibility. This may partly be a direct consequence of the discriminatory policies prior to the armed conflict. Many Kosovo Albanian professionals had not practiced their professions since 1989, due to their expulsion from public institutions. In addition, potential qualified staff from both major ethnic groups had been drained out of the province due to these events, as well as to the armed conflict that followed. Moreover, it is likely that the low salaries offered to local employees of the institution, in comparison to other UNMIK institutions and the private sector has failed to attract young professionals.108 We do believe that this has been a factor affecting the HPD, given the complex legal and procedural issues dealt with, as well as the institution’s dependence on local staff.

Cooperation has also been made difficult by factors lying in the international sphere. A vital part of ensuring fair proceedings has been the international supervision of the process. The Directorate has throughout its operational period had international lawyers employed in key positions of the institution and their primary task has been to provide necessary checks and balances to the case processing.

Exercising effective supervision is undoubtedly a challenging task. It requires a high level of understanding of the legal and procedural issues involved, as well as knowledge of particularities of the Kosovo society. Supervision also depends on the ability of the internationals to establish good frameworks for cooperation with local staff. Familiarisation with the organisation and colleagues is a necessity for building trust and confidence. This can only be achieved over time. Thus experience becomes of paramount importance. The institution has however had to struggle with a high turn over ratio of international staff from the outset, which most likely has had an impact on the process.

It is further important to bear in mind that international staff themselves are just “another wheel in the machinery”. Their performance is also measured in terms of production numbers.109 Thus, they have been subjected to the same kind of demands as anyone else, which in turn has affected their ability to provide effective supervision

On top of this, the limited resources of the institution have resulted in a demand for flexibility among all staff members. Ad hoc solutions have in turn had to be adopted and shifts in responsibilities have at times resulted in a lack of continuity.

107 See supra note 28. 108 Local employees have received their salaries over the KCB budget. The reason given for this has been that the salaries should be sustainable, once UNMIK withdraws from Kosovo. 109 Several sources spoken with during the evaluation has stated that they would have to go through up to 50-60 cases per week to meet the production targets, which in their view has been unsatisfactory.


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These circumstances have all been highlighted in the interviews conducted throughout the evaluation period. Interestingly, while the international staff members has almost without exception stressed the importance of conducting close supervision of the local staff, the latter have expressed frustration in having to relate to the constant outflow of international staff.

Although we find that all of these factors have impacted on the ability of the Directorate to implement the regulatory framework, it is important to stress that the overall impression is that the Directorate has been able to implement the framework in a diligent and fair manner. Given the circumstances in which the staff has had to operate, their considerable contribution to the outcome should be noted.

Concrete impact

To illustrate the direct impact of the concerns mentioned above, the following issues might be highlighted.

One general problem throughout the processing has been the poor quality of the statements obtained by the parties. The statements have at times been limited to a few lines and the little information obtained has not necessarily been relevant for the determination of the claim. Keeping in mind that the HPD operates with written procedures and that the interviews with the claimants is the only possibility for the claimant to argue his claim this is of great concern.

The institution uses three different languages, and the statements must further be translated. This is in itself a huge task, and the quality of the translations may at times be questioned. In a legal setting, the importance of accurate translation should not be underestimated.

Sources used in this report further suggest irregularities in connection for instance with the process of serving notifications of claims. It has been suggested that in instances notifications has not been served at all, and that there are several ways to cover this up. Similar irregularities relates to the processing of claims. One operation in particular is the search for conflicting claims to the same property. Before the IT-system was fully operational this could be a time consuming operation. Even so, the processing team in one of the regional offices responded to the Central Processing Unit at head quarter by claiming that they had completed remaining searches of more than 300 cases in one single day.

Although it is the claimants who have the primary responsibility for gathering evidence, the Directorate is given additional responsibilities to investigate the claims and verify documents. The poor state of public records in Kosovo has made this process a huge challenge. Each case processor has to make judgement calls pertaining to the evidence in the individual case. Further investigation and verification is time consuming and has likely affected their judgements on what should be counted as sufficient/insufficient evidence in regards to the review of the claim. For instance, if a document is verified in the local Albanian court to be a forgery; should you, even if information pertaining to the case suggests so, bother to attempt additional verification in a dislocated court in Serbia, which would prolong the preparation of the claim?

Lastly it should be mentioned that reports suggests that instances of manipulation of data related to case files has occurred. Such instances seems to have been detected during the initial phase of operations before the Directorate managed to get in place a secure system for information handling.


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Allocation of resources

Due to its difficult financial situation, the management of the Directorate has constantly been confronted with the challenge of distributing the available resources in a manner that would meet the various interests inherent in the institution’s mandate. The prominent issue in regards to the claims processing has been to balance the demand for speed up against the requirements for fair proceedings. This has been no easy task.

The Office of the Registry (Adjudication) is perhaps the unit within the institution, which most explicitly has been affected by this issue. According to the regulatory framework of the institution, the office has been given a key role in providing fairness to the case processing. The office constitutes the link between the Commission and the Directorate and shall prepare all claims for adjudication by the Commission, batch together cases with similar legal and evidentiary content and draft decisions. All claims submitted to the Commission shall pass through the office, and at times is the only provider of international supervision within the Directorate. It is further tasked to make sure that the guidelines and directives of the Commission is understood properly and disseminated throughout the organisation.

Given its huge responsibilities, it is quite surprising that the office appears to have been given insufficient priority throughout the operational period.

During its first years of operations, the Directorate struggled to recruit an international staff member to head the office. Staff members of the Directorate had to on an ad hoc basis function in the position, often combining several roles at the same time. The difficulties experienced in the office may further have left the Commission with no other option than to assign to its local member certain review functions to remedy the situation. Switching back and forth between positions within the Directorate/the Commission and the office may be difficult to defend from a strict structural point of view. The HPD is conceived as an institution with two distinct organs. It may seem that such a practice from time to time has resulted in a blurred relationship between the two organs, which in turn may have impacted on the independence of the Commission.

During the latter part of operations, the office has had to struggle with a heavy workload. At times it has had to handle thousands of claims within short time periods. With little additional resources this has caused the staff members of the office, and in particular the various Registrars, to work ridiculously long hours, which obviously is not ideal.

The difficulties experienced in the office may be reflected in the strikingly high turn over of Registrars. Altogether seven persons have throughout the operation functioned in this position. This lack of continuity is unfortunate, given the office vital role in the dispute settlement process.

The huge responsibilities entrusted to the office should have been matched with corresponding resources during the operational period. This is perhaps particularly the case, during the last few years of operations, when the production rate peaked and the claims became more complex.

Failure to allocate sufficient resources has likely affected the office ability to provide necessary checks and balances to the claims processing, and appears to be the result of questionable priorities made by the management of the institution.


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Modus operandi of the Commission

The modus operandi of the Commission has basically been to gather in Pristina for bi-monthly sessions lasting for four to five days at the time. During the first few years of its functioning, the Commission put much effort into establishing guidelines and set important precedents used amongst others to facilitate mass claims processing of category C claims.

The Commission seems to have been able to handle most claims referred to it in each session and has frequently used its authority to send back cases to the Directorate for additional steps of processing.110 Our impression from examining the minutes from the various sessions of the Commission leaves an impression that they have been very much hands on in terms of providing checks and balances to the process. There is however no denying that there are limits to their supervisory functions within the structure of the system, and members of the Commission admits that the risks of making mistakes are present.

The minutes further highlights a concern related to the communication between the Commission and the Directorate. It appears as if the bi-monthly sessions have been the main forum used to disseminate its instructions and advice to the Directorate on how to prepare the claims. This has however proven to be insufficient. Many of the mistakes pinpointed by the Commission seem to have repeated it self over and over again. It is likely that the communication would have improved if sessions were held more frequently, or even if the members had been based permanently in Pristina. This is particularly so, given the difficulties of the office of the Registry to provide guidance, due to its limited resources.111

12.5 Mediation According to the institution’s mandate, the Directorate was tasked to mediate claims submitted to the institution.112 The purpose of seeking mediation between parties is to find practical ways of solving claims. Amicable solutions may be reached at any stage throughout the process, and has an obvious advantage to the parties in the sense that it is capable of bringing flexible solutions quickly, without having to wait for a decision by the Commission. In addition, it increases the chance for compliance by both parties when they in fact have agreed to the terms set forth. It also has clear benefits from the institution’s point of view. If amicable solutions could be found, considerable efforts related to the claims processing and implementation would be saved.

110 An unofficial survey based on the minutes from the Commission sessions (up until summer of 2005) sets the numbers to approximately 3.5% of claims referred back to the Directorate. 111 The evaluators are well aware of the resource implications (for UNMIK) related to such a working modality. Thus, we believe that added resources to the office of the Registry would be the most efficient way to deal with this. 112 Section 1.2 of Regulation 1999/23


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From the outset, the HPD allocated resources to the process of mediation. The efforts however did not result in significant results, and the institution at some point found that with limited resources available, efforts should be diverted to processing the claims for adjudication. Whether this decision was taken prematurely is difficult to assess.

It should however be pointed out that mediation in a post-conflict environment like Kosovo present particular challenges. The atrocities committed by the parties in a conflict constituted an atmosphere of tension and hatred, which obviously was not conducive to mediation with a view to find amicable solutions. In a society lacking strong public institutions and necessary means to enforce the rule of law, there may further be no reason for a party to enter into such negotiations.

Another factor, which further may have impacted on the decision of the HPD to end mediation, is the possibility that the outcome could run counter to the missions overall objective to promote the return of refugees and displaced persons. This would be the case if an amicable solution would involve a purchase of the property in question, which in turn would mean one Serb less returning to the province.

12.6 Fair outcome Although the concept of fairness in a legal context basically relates to how a decision is reached, it further applies to the content of the decisions as well. In this regard, there are three general issues that may be worth mentioning.

One issue related to the determination of property rights in Kosovo has been the possibility given by the regulation to limit decisions to rights of possession. The issue raises the overall question of the sustainability of the institution’s decisions. The provision indicates the nature of the HPD`s mandate as an extraordinary international tribunal tasked with the restoration of property rights lost as a result of a particular historic event. However, it seems to run counter to the general perception of the institution as a body, which settles property disputes in final and viable decisions. Granting ownership rights in a situation where the conditions of public records are less than reliable may be both difficult and time-consuming. This however does not necessarily render it impossible. The fact that the Commission has used this opportunity extensively in relation to the category C claims by limiting its decisions to rights of possession has been subject to considerable criticism. Many claimants feel that their property rights have not been fully recognized and are afraid what long-term consequences it will have. In principle, the property in question may be subject to further disputes over rights of ownership. If Kosovo eventually becomes a mono-ethnic society dominated by the Albanians, the concerns of Serbian owners are understandable.

It can further make transfer of the property more complicated. As many claimants have little chance of physically repossessing their property for security reasons, such decisions have limited value. Of course transfers of the property can, and do, take place using the


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decisions as evidence. One source has suggested that the market price is diminished, which in turn affects the claimants ability to begin a sustainable existence elsewhere.113

Whether this gives cause for great concern may however be doubtful. Experience drawn from Bosnia, suggest that in reality decisions on possession by the CRPC for all practical purposes serves as valid document proving the ownership of the properties in question.

The decision to award repossession rather than ownership has had particular implications in respect to the destroyed properties. Until April 2004, the Directorate rejected claims involving destroyed properties.114 The reason given to the claimants was that the HPD could not implement something (repossession of a house), which no longer existed. Two main complaints arose with respect to this practice. First of all a decision was useful in securing funds for reconstruction, since many donors required clear proof of ownership before funds or reconstruction material were being granted. And secondly in some cases claims were allegedly refused on the basis that the buildings were destroyed, while in fact they were intact. This criticism caused the institution to alter its practice, and the Commission has since issued so called declaratory orders granting possession to all the affected claimants.

The third issue relates to category A claims mostly submitted by Albanians (A1). These claims were dismissed even though it was proved that the claimants had been victims of the discriminatory policies of the Serb authorities. The reason for this was that the claimants had not complied with all the conditions set forth in the Law on Housing for acquiring an occupancy tenancy right. This could be so, for instance if they had not lawfully moved in to the apartment due to the fact that the building was under construction or that they had not yet managed to obtain a contract on use with the Public Housing Enterprise.

This was being perceived as highly unfair and caused a great deal of criticism backed by the office of the Ombudsperson. How unfortunate this may be, the criticism seems to have been based on a misconception of the institution’s mandate and the regulatory framework. The criticism afforded the institution in this regard is therefore unjustified. However, the criticism later resulted in an arrangement involving the Kosovo Trust Agency (KTA).115 The KTA accepted legal responsibility for the potential wrongdoings committed by socially and publicly owned enterprises as allocation right holders during the 1990`s as it defined the unsuccessful A1 claimants as legal creditors to the respective companies.

113 See supra note 98, p. 51 114 See section 8.1 of this report. 115 The issue seems to have been settled in a meeting on 21 June 2005 between KTA, the Office of the Ombudsperson and the HPD.


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12.7 Reconsideration requests The decisions issued by the Commission are final and binding. Thus, the regulatory framework does not provide for an appeals mechanism. A right to an appeal exists in most legal systems and was also afforded to claimants involved in the restitution process in Bosnia. Contrary to what some may believe, no provisions under the ECHR do however guarantee the right to an appeal. The issue was debated during the drafting of the institution’s mandate. When the decision was made not to include such a right, it was motivated by the desire to achieve speedy and final resolution of the claims.

The regulatory framework does, as described previously, however provide a right for the parties to request the Commission to reconsider its initial decision. By the end of 2005, the following statistics shows how the mechanism has been utilized:

Total A B C

Filed 3.179 4.596 62 2.658

Decided 1.383 128 4 1.241

Granted 80 11 0 69

A considerable proportion of these requests has been submitted towards the end of the mandate, and relates mostly to contested claims. The deadline for submitting a request is according to the regulation within 30 days of being notified of the decision. The Commission has however taken a lenient approach towards this deadline, and has allowed for reconsideration requests, which have been filed later. We believe this is an expression of the emphasis the Commissions puts on the reconsideration mechanism in terms of ensuring a fair resolution of the claims. High production numbers and limited resources is a combination that increases the risk of making mistakes. Under such conditions, the review of reconsideration requests becomes the ultimate safety mechanism.

There is however at least two issues which may be raised in terms of the effectiveness of this mechanism. One relates to the composition of the Commission. The regulatory framework envisages that additional Panels of the Commission should be established during the operational period of the HPD. Such an arrangement has particular importance in this regard. It would make it possible to redirect the reconsideration requests to another Panel, and prevent the same members of the Commission from reviewing their own decisions. Whether such an arrangement in fact would generate a higher number of requests or another outcome in terms of grants or dismissals is perhaps


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doubtful. It seems however fair to suggest that it could improve the overall perception of the institution in terms of providing an additional review mechanism.116

The Commission has throughout the operational period been fully aware of this, and discussion on establishing an additional Panel has surfaced from time to time. This would however require additional funding which has been difficult to attain. The fact that the Commission has been able to handle most of the claims referred to it by the Directorate proves that it has not been the "bottleneck" in terms of achieving efficient results, thereby removing an important argument for establishing a second Panel.

The other issue, and perhaps more importantly so, relates to the structure and reasoning of the decisions of the Commission. To be able to effectively utilize the option of submitting a reconsideration request, one needs to know why the Commission has reached their decision. Unless the claimants receive information on the basis for the decision, they would not be able to effectively argue against it. Feedback from various sources suggests that this has presented a real problem for many claimants.117

The use of cover decisions facilitates speedy resolution of up to hundreds of claims at the same time. For a person unfamiliar with the structure of such decisions it becomes confusing. For the sake of resolving high numbers of claims, the reasoning is further limited to what is strictly necessary from a legal perspective. Although the cover decisions are linked to individual decision, the information given in these documents is not adequate. The same applies to the actual notification. Even if the decisions may be handed over in person, both the employees’ ability to understand the reasoning as well as the time available to each individual claimant presents limitations in this regard.

As already indicated, there are of course weighty reasons for this approach. It should also be kept in mind that the substantial number of the cover decisions issued by the Commission has been simple and uncontested. As such it becomes an exercise in balancing various interests for the purpose of achieving the overall objective of the institution. Based on our impression it may however be questioned whether the reasoning of the decisions could have been elaborated further. By exposing the reasoning, it would enhance the possibility of the claimant to present new information and evidence in support of their requests. On the other hand it could also bring about greater acceptance of the outcome, by convincing the claimant that all facts have been reviewed.

The lenient approach to accept reconsideration requests to be filed after the deadline implies that the overall resolution of claims will be slowed down. The small rate of grants suggests that most of the requests were unsubstantiated and probably filed to gain time.

116 The Directorate has instead installed procedures which shall guarantee that the reconsideration request is prepared by another staff member than the one who initially prepared the claim for adjudication 117 Praxis and Civil Rights Project Kosovo


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12.8 Transparency Transparency implies openness in terms of information and is of great importance to any democratic organisation. An institution should be accessible and must further be able to disseminate information about its own activities. It serves the purpose of facilitating public scrutiny and debate. This is ensured in a regular judicial system by procedures, which provide for oral and public hearings and requires its decisions to be published.

Due to the particular circumstances surrounding the activities of the HPD, as well as the nature of its mandate makes the issue of transparency a delicate matter. As a new an unfamiliar institution it would need publicity to achieve its intended purposes of collecting claims for resolution. Information would further bring about better understanding of its mandate and contribute to its legitimacy and reputation amongst the public as well as the claimants. On the other hand, the sensitivity of the issues involved requires the institution to handle information carefully. Otherwise it could expose claimants to security risks and undue pressure, and facilitate exploitation by individuals who would wrongfully seek to benefit from the institution’s activities. The situation thus highlights yet another challenge for the institution in terms of striking a proper balance between different interests.

During the intake phase it was important to raise awareness of the institution and its ability to resolve property disputes. The institution’s ability to disseminate such information has been criticized by several sources. The initial information campaign and other outreach activities were deemed inadequate, due to lack of available resources.

Throughout the processing stage, the institution has continued to struggle. As the processing time of claims increased, the demand for information grew correspondingly. The use of written procedures, as compared to oral hearings in courts is exclusive and lacks the same ability to inform the public about the processes used. The possibility to conduct oral hearings envisaged in the regulation has to a very limited extent been utilized due to various reasons. The Directorate’s capacity to respond to inquiries made by claimants was severely hampered by a lack of a functional IT-system, and a feasible website was only established at a later stage. The publication of the decisions of the institution started even later. The management of the Directorate may not have responded sufficiently swift to this challenge. The institution’s outreach unit, which later has played an important role in its communication with claimants, was established as late as in 2003. At that point in time the institution’s reputation in terms of transparency had already taken a serious blow.

Some members of the donor community have complained about limited reporting on activities and utilization of funds.

Signs of improvements has however been detected over the last few years in some of these areas. The establishment of the Advisory Board has hopefully been able to give the donor community more information on the activities of the institution. In terms of information to the claimants the establishment of the outreach unit has already been mentioned. The website has further become more informative, and the decisions seem to be published on a regular basis. In addition, the institution did in 2005 employ a person with specific tasks related to public relations, which according to available information now liaise with relevant actors on a regular basis. Unfortunately however, these improvements came too late for many claimants who had become alienated.


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12.9 Conclusions 1. Much of the criticism afforded to the institution, in terms of inefficiency, was based on wrong assumptions and unrealistic expectations by the various stakeholders. After six years of operations the institution has managed to resolve a considerable number of claims, considering the comprehensive requirements of the regulatory framework and the limited resources made available throughout. The same results could not have been achieved by the regular court system.

Certain strategic decisions could have been taken at earlier stages of the process to achieve a higher degree of efficiency. The considerable length of the proceedings has left many claimants disinterested and alienated. Their criticism is easy to sympathize with. To blame the institution for this, underscores the fact that the significant reasons behind this must be attributed to circumstances outside the control of the institution. The fact that the HPD has experienced many of the same problems encountered in Bosnia confirms the fact that to conduct a property restitution process in the aftermath of an armed conflict presents huge challenges which evidently makes the process time consuming.

2. The HPD has gradually earned a reputation of being an impartial institution. International supervision and the mandate of the institution, which includes claims concerned with both the majority and the minority population has been the vital factors contributing to this.

3. The HPD has in general managed to implement the regulatory framework in a fair and consistent manner. The substantial pressure put upon the institution to solve the claims in an efficient manner, however is a cause of concern. There are limitations to the international supervision in terms of providing the necessary checks and balances to the process. The failure to give the office of the Registry (adjudication) additional resources during the latter part of the institution’s operational period when the production rates peaked may be questioned.

4. The decision to award possession instead of ownership has been heavily criticized. Experience drawn from Bosnia suggests that the concerns expressed in this criticism may be exaggerated. The criticism surrounding the decision to dismiss a proportion of the category A claims was based on a misconception of the institution’s mandate.

5. The institution seems to have relied heavily on the reconsideration mechanism to correct mistakes related to the processing of claims. In light of this, the limited reasoning and the use of cover decisions coupled with the fact that the requests are review by the same Panel who issued the first decision may have impeded on the effectiveness of the mechanism.

6. The HPD has had difficulties in achieving transparency. The problems experienced by claimants in accessing information about their claims may be attributed to the institution’s inability to establish proper tools for information handling. A general misconception of the mandate of the institution has generated unjustified criticism, which could have been prevented if the institution had developed its ability to communicate with the public, as well as other stakeholders.


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Chapter 13 Implementation of decisions

13.1 Statistics and Comments The HPD presents the following official statistics on production in terms of implementations of claims:118

All claims dismissed HPCC

A/C-Claims B - Claims

Total Withdr. Rej. HDP

No juris.

No merits

Closed Claimant Request

Dest. Property

Reposs. Under Admin

w/o Phy. Imp.

Gran. Own

26.935 2.300 86 115 2.460 2.114 10.251 2.377 3.537 2.368 311

The total number of implemented claims is divided into different categories. These categories give information on various ways in which the claims have been settled, and as such equals closure codes used by the institution to classify their portfolio of resolved claims. The evaluators acknowledged that there is work related to the closure of the various categories of claims, such as the notification/publication of decisions, as well as any activities undertaken in regards to the closure of the case files. As such, the statistics may reflect the various processes undertaken by the Directorate post-decision making. However we do find it misleading to label these activities as part of the implementation.

In our view the term “implementation” signifies a distinct process undertaken by the Directorate for the sole purpose of giving effect to the decisions of the Commission. As such, only a few of the categories in the matrix qualify. In addition the statistics do not inform whether the successful claimants in fact have been receiving compensation.

The following categories of claims have thus for various reasons not involved implementation:

The category figuring as "Withdrawals" has not been subjected to any decision making by the institution what so ever. The claims have, at some point during the processing been withdrawn by the claimant, probably because it has been possible to reach an amicable solution with the current occupant. The most likely outcome is that the property has been sold. In this case, there is nothing for the Directorate to implement.

The category labelled "Rejections HPD" has been rejected by the Directorate, due to the institution’s lack of jurisdiction. This could for instance be the case if the property in question is not a residential property. A rejected claim means that the claimant has been unsuccessful, and the decision leaves nothing to be implemented.

118 Statistics extracted from HPD Website, May 2006


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The "Dismissed HPCC" category of claims has been adjudicated by the Commission, but has been dismissed due to no merits or on the grounds that the HPD lack jurisdiction. The claimant has been unsuccessful in obtaining a remedy. Consequently, the decisions leave nothing to be implemented.

The "Ownership" category of claims requires registration in the immovable property right register and is not subject to regulation within the framework of the institution. Responsibility for implementation by way of registration of ownership in public registers is conferred upon the Kosovo Cadastre Agency.

The category of claims labelled "Closed on Claimants Request" has been decided by the Commission, and has been awarded a remedy, most likely a right to repossess the property. However, the successful claimant has, pursuant to the decision, declined assistance from the Directorate to implement the decision. The claimant has most likely been able to reach an agreement on sale with the occupant.

The "Destroyed Properties" is in fact what it is and could possibly have taken place at any stage during the processing. The Commission, with or without such knowledge, has decided upon the claims. If the property has been destroyed there can be no repossession, and consequently the decisions do not require implementation by the Directorate.

The “w.o/Phy.Impl.” refers to two different situations related to a decision issued by the Commission. The first is the situation where the claimant has been notified about the decision but has not approached the institution with any request whatsoever. The second is the situation whereby the institution has not been able to reach the claimant, and thus has not been notified of the decision (missing claimants). Obviously, no implementation has n fact taken place in these cases.

Only the last two categories figuring in the statistics involve a process of implementation intended to give effect to the decisions of the institution:

The category labelled "Repossession" has been decided upon by the Commission, and the successful claimant has been awarded one out of the available remedies. The process of implementation thus consists of enforcement of the decision for the purpose of repossession.

The category termed "Under Administration" means that the Commission has issued a decision awarding the claimant repossession (and administration). Pursuant to the decision, the claimant has however opted for administration, given the difficulties experienced in repossessing the property. Implementation consists of the Directorate’s temporary administration of the property.

13.2 General Remarks One of the lessons learned from the experience in resolving property disputes in Bosnia and Herzegovina was that a property right is of limited value if there is no procedure to enforce it. The restitution process provided for in Bosnia did not include a mechanism for implementation. It was rather left for the local authorities to enforce the decisions and thereby give effect to the rights granted by the international dispute settlement body. This proved to be a major impediment. The local authorities, for a number of reasons, obstructed or delayed the implementation process, leaving thousands of claimants without the possibility to move back to their properties. Thus, the regulatory framework of the HPD provides for an implementation mechanism in which the Directorate is conferred the responsibility to give effect to decisions taken by the Commission. By


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including an implementation mechanism, the framework seems to be in line with the requirements set forth in the ECHR. A general principle under the Convention is that the rights enshrined shall give real and effective, not merely formal, protection. This has, as mentioned previously in this report also implications in relation to requirements for a speedy process envisaged in the convention. The European Court of Human Rights has held that the amount of time it takes to implement decisions is relevant when determining whether the requirement of “reasonable time” has been violated in relation to Article 6.119

If the institution, in terms of focus can be said to have evolved through different phases, the last two years has been devoted to implementation. The institution has put much effort in working out standard operational procedures for the eviction process. Efforts have further been devoted to operationalize the compensation scheme envisaged in section 4 of the regulation. And the statistics seemingly show a drastic increase in terms of cases actually being implemented. However, as pointed out above, these numbers in our view are not accurate when describing the HPD`s performance in relation to the process of implementation. In the following, the evaluation will focus on the institution’s implementation in terms of carrying out evictions. It will further comment on the process of compensation. Administration will be dealt with in a separate part of the report. The last two sections of this chapter will attempt to look at the outcome of the restitution process in light of the return issue.

13.3 Evictions Evictions are a sensitive undertaking. It involves the use of force and may easily stir up tensions and cause violent incidents to happen. The initial phase of implementation was thus marked by high security concerns. In several areas, implementations had to be postponed due to the overall situation. At times, evictions were undertaken with heavy presence of KFOR troops. Executions required thorough preparations and were evidently slow.

Another factor, which has continued to slow down the process, is the need for input from the claimant to move the process along. When such input is missing, the process grinds to a halt. In 2004, the institution had approximately 4,000 claims pending implementation, due to the fact that the claimants could not be reached, or had not decided what to do. Although the call centre during the last year has managed to track down a substantial number of claimants, there are still more than 1,300 claimants who have not been reached. The number of claimants who has not decided what to do with their decision has further continued to increase and amounts to approximately 2.200.

Yet another factor, which tends to impede on the flow of evictions is related to the reconsideration procedures. The occupant may easily exploit the opportunity to delay the process by filing a reconsideration request. The fact that most of these requests are

119 ECHR, Silva Pontes vs. Portugal and Scollo vs. Italy


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unsubstantiated supports the impression that this in fact may be the purpose. The fact that the Commission has been lenient in exercising the dead lines for filing such requests further tends to complicate the process.

As noted previously, the regulation provides for flexibility in executing evictions.120 The framework thus confers upon the Directorate the duty to take humanitarian considerations into account when carrying out the process. For a limited time period, the claimant’s right to repossess his property is suspended, for the purpose of securing the occupant's right to adequate housing, in accordance with the internationally recognized human right standards.

There is little available information, which shows to what extent the Directorate actually has used its discretionary powers. The institution seems to have adapted a policy in which the property right supersedes any humanitarian need for housing. If this implies that evictions has been carried out without any assessment what so ever of the housing needs of the occupants in question, this policy seems to run counter to the duties conferred upon the institution by the regulatory framework. It has been indicated by the institution that exceptions may be made when life-threatening circumstances are present. Such circumstances include only instances directly related to the ongoing ethnic conflict. This means that an Albanian with rights to a property located in a Serb dominated area will not be evicted and vice versa. Other circumstances i.e. rendering a family with sick small children homeless in the middle of winter in Kosovo, would not trigger the Directorate to exercise its discretionary powers and delay the eviction until the housing needs/rights of the occupants can be addressed. The usual reason argued by the institution not to delay evictions under such conditions is that social cases fall within the responsibility of the municipalities according to Regulation 2000/45. Yet, only recently serious coordination with the social services of some municipalities has been started.

According to the regulatory framework, the Directorate is given a wide discretion to determine what circumstances are relevant when balancing the interests of the property right holder and the occupant. Although, in general there are good reasons for favouring the interests of the former the policy adopted by the institution may be questioned in terms of weighing the conflicting interests in a fair manner.

There have been other difficulties related to communication with claimants. Many have complained that notification of evictions have been served too close to the scheduled date, giving the claimants little time to prepare for takeover. A number of post-eviction incidents has occurred, such as re-occupation, looting and outright destruction of properties. These incidents have caused a great deal of criticism towards the HPD. When the occupant is evicted the property becomes vacant and remains unprotected. The destruction is then perceived to be a direct consequence of the Directorate’s actions. The criticism is partially justified, because the regulatory framework gives the institution

120 Section 13.2 of Regulation 2000/60


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authority to place such properties under its administration, if the claimant fails to repossess.121

While the security situation during the initial phase of the implementation had a significant impact on the institution’s ability to implement its decisions efficiently, it no longer seems to be a major factor in terms of executing the evictions.122 To our knowledge there has been no reporting of serious security incidents related to the process. The institution has further developed and refined its implementing procedures and is presently conducting evictions from two different offices, in Pristina and in Prizren. Evictions are thus running at a steady pace of about 200 each month.

However, the eviction process still has flaws. Although the standard operational procedures provide comprehensive checks and balances, there are from time to time still incidents of wrongful evictions, usually caused by wrong addresses or poor descriptions of the properties. There is however no available information, which suggests the extent of these problems.

13.4 Compensation There has not yet been established a mechanism for implementation in terms of compensation. Due to the delay in implementing a framework, no compensation has thus far been given. This is of course very unfortunate for those claimants who already have a decision. The Directorate has worked out a proposal for operationalizing section 4 of the regulatory framework, but this was done as late as in the summer of 2005. There seems to be no reason why this could not have been done at an earlier stage. The proposal is now pending a decision by the SRSG, and will probably consume more time before it will come into effect.

13.5 Repossession and return After close to seven years, the peace building operation undertaken by the international community has still not been able to establish conditions in Kosovo, which are conducive to the return of refugees and displaced persons of the ethnical minority population of the province. The resentment towards the Serb population still harboured by the Albanian majority, poses a continued security risk This situation has consequently impeded on UNMIK`s efforts to rebuild Kosovo as a multi-ethnic society.

Given these circumstances, it should perhaps not come as a surprise that the restitution process undertaken by the HPD has not managed to facilitate return of any significance. The statistic presented in the introduction of this chapter should clearly prove this. Of the ten categories used to classify the resolution of the claims, it is only the category involving repossession, which includes possible return. And even within this category

121 Section 12.2 (c) of Regulation 2000/60 122 The Directorate, through some high-profile evictions with wide media coverage (e.g., the Velika Reka case) managed to show publicly that external pressure would not stop the implementation of decisions, and likely paved way for a smoother process.


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there are reasons to believe that only a limited number of claimants in fact have returned and repossessed their properties. A substantial proportion of the 2.377 properties have likely been repossessed for the purpose of selling it to individuals who already live in Kosovo.

Although the attitude of the Albanian population towards return largely is to blame for this, some critics have further questioned the commitment of UNMIK and the international community in regards to the return issue.

The issue of land and commercial property is perhaps most telling in this regard. During the whole period, this has not been dealt with, although it may seem quite obvious that it is of relevance to the return issue. Land and commercial property is of vital importance for providing a livelihood for the returning population. Still it is only this year that the mission has managed to establish a mechanism to resolve disputes over such property.

Within the context of this report it may further be questioned whether the restitution process undertaken by the HPD could have been conducted differently to achieve greater return. One issue of particular relevance relates to the method used by the Directorate to implement its decisions.

Discussions as to how to approach the order in which evictions are carried out seems to have surfaced from time to time. In particular, it has been voiced that evictions should be more coordinated to achieve the intended purpose of repossession and return. Conducting evictions on a case by case basis has as indicated above clearly proven to be inadequate, because the security concerns involved for the individual then becomes too great. Mass implementation of decisions related to specific areas, and closely coordinated with all the involved property right holders, would likely decrease the risks involved and could possibly persuade more claimants to move back and repossess their properties. This would of course change the whole modality for implementation of the decisions used by the institution and would require strategic planning and coordination with UNMIK and KFOR.

Mass implementation of claims would most likely have a positive effect on the return process. Still, this modality has throughout the operational period hardly been applied. This is highly regrettable. The failure to put in place such a scheme must be attributed to all stakeholders involved in the issue.

Despite the fact that the HPD clearly has a mandate, which includes promotion of the right to return, it seems as if the institution for a considerable time period has been reluctant to engage in the return issue. When the HPD, during the last few years of operations, finally advocated for mass implementation of decisions, the various stakeholders within UNMIK was not able to respond adequately.

13.6 Destroyed properties The classifications presented above disclose another disturbing fact in regards to the outcome of the claims involved in the restitution process in Kosovo. The number of destroyed properties amounts to more than 1/3 of the total claims submitted to the institution. This partly explains the difficulties experienced in connection with the return issue, and further highlights the challenges associated with conducting a restitution process in the aftermath of an armed conflict.

It seems as if the vast majority of these properties were destroyed during the summer/fall of 1999, following the withdrawal of the Serbian authorities from the province and the


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subsequent flux of the Serb population. The destruction thus took place prior to the establishment of the HPD. A proportion of these properties were destroyed at a later stage, during the operational period of the institution.123

These criminal acts are first and foremost a matter for KFOR and other security and law enforcement agencies. When the HPD was established it was clearly not designed to deal with such acts. However the issue may be raised whether the HPD to any extent could have prevented such acts through better use of the tools available in the regulatory framework.

One of these tools lay in the institution’s administrative mandate. Part of the objective behind the administration scheme was to cease control of abandoned housing and prevent further destruction and illegal occupation.124 In principle, properties involved in the dispute settlement process could have been placed under the administration of the Directorate if the resident was considered to be an illegal occupant.125

As has been evident for a long period of time many respondents did not contest the claimants` alleged property rights over the properties. If these occupants had been issued with temporary permits from the outset, this could have facilitated the regularised utilization of a proportion of these properties, while the claim was pending a resolution. The evaluators can see no provisions in the regulatory framework, which would prohibit such a practice. Whether this would have been effective in reducing the numbers of destroyed properties is perhaps doubtful, but should not be excluded altogether as a possibility. The regularised use could possibly have either committed the occupants from the outset and helped to reduce the number of houses left empty throughout the period, or deterred them from committing such acts since pressing criminal charges would have been easier.

Another tool available, relates to the authority of the Commissions to issue provisional measures. According to the regulatory framework the Commission, upon the recommendation of the Directorate, has been givens such authority.126 The authority is similar to that being granted the Human Rights Chamber in Bosnia. It was however mainly applied in circumstances where a claimant was facing unlawful eviction, and it is questionable whether it was meant for instances where properties were being destroyed. Although the wording of the provision allows for application in such instances, it would likely be insufficient to prevent destruction. There is no available information that the institution has initiated such provisional measures.

Although the HPD hardly can be blamed for not exercising the powers inherent in the regulatory framework, the importance of the issue of destroyed properties deserves to be

123 There is no available information on the accurate numbers of properties destroyed during this period. However some 606 claims relate to properties destroyed in the period between notifications of the claim and the decision. 124 See part V. 125 See sections 1 and 12.1 of Regulation 2000/60 126 See sections 2.5 of Regulation 1999/23, 10.5 and 24.1 of Regulation 2000/60


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highlighted. The disturbingly high numbers of properties involved shows the importance of the rule of law as a prerequisite for conducting an effective restitution process capable of providing an effective remedy and facilitate return of the affected parties.

13.7 Conclusion 1. While the process of determining property rights largely can take place undisturbed, the enforcement process needs to take into account the situation on the ground. The use of force is a sensitive issue. Wrongful evictions are a serious problem, first and foremost for the individuals affected, but also for the reputation of the institution. It may further expose the individuals responsible for carrying out evictions to situations, which contain high security risks, and may provoke criminal acts in terms of looting and outright destruction of the properties. Consequently, it requires thorough planning and proper coordination with other law enforcement agencies. Evictions further require proper communication with the successful claimants.

2. A mechanism for implementing decisions awarding compensation has yet to be established. No compensation has thus reached the involved claimants.

3. The modality used in Kosovo to implement decisions has largely failed to achieve the intended purpose of the operation. To facilitate return of refugees and displaced person and to achieve actual repossession by the property right holders require use of other methods. Instead of approaching implementation individually on a case-by-case basis, mass implementation to designated geographical areas should have been attempted. The right to return is just that. If the claimant, due to the overall circumstances in Kosovo find it impossible to repossess, it is pertinent to question to what extent the restitution process has been capable of providing property right holders with an effective remedy.

4. The total numbers of destroyed properties are disturbingly high. Although the HPD cannot be blamed for this, it seriously puts into question the ability of such a restitution process to provide property right holders with an effective remedy.

Chapter 14: Overall Conclusions Resolution of property disputes in Kosovo has proven to be a difficult undertaking. Although equipped with a largely sound legal framework, the HPD has experienced difficulties in executing its mandate. The institution has faced serious resource implications throughout its whole operational period. The levels of funding needed to put in place an institution at a scale adequate to implement the framework has not been forthcoming. Limited information technology facilities and shortage of staff has likely impeded on the ability of the institution to provide an effective remedy to the affected property right holders

Considering these circumstances, it must be concluded that the HPD has managed to perform its tasks as well as could have realistically been expected. Although the institution encountered various problems, which delayed the intake phase, the operation has effectively managed to collect most of the claims. It has further been able to resolve the large proportion of claims in a fair and efficient manner. The decision to establish an internationally supervised resolution mechanism has proven to be a better option than to use the ordinary court system. They would not be able to comply with the standards for impartiality. They could not have provided the same services pertaining to claims collection and verification and would not have at its disposal procedural tools to facilitate speedy resolution of the claims.


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Implementation is ongoing, and has proved to be particularly difficult. This relates to a number of factors, some of them outside the control of the HPD It is fair to suggest that the institution should have initiated steps at an earlier stage to facilitate compensation, as well as attempted to use a different modality for carrying out evictions such as mass implementation.

The greatest impediment to the successful outcome of the restitution process lies however elsewhere. The right to return and the right to repossess is just that. If the situation is not conducive in those terms and the claimants decide not to repossess, the whole process threatens to become irrelevant. The inability of UNMIK, as well as the Albanian population, to rebuild Kosovo as a multi-ethnic society represents perhaps the greatest failure of the whole peace building process. The wide spread destruction of properties involved in the process, and the security risks still involved leaves the claimants with few options. When the substantial proportion of claimants finds it impossible to return, it requires little imagination to contemplate the effects of a restitution process, which is designed to award repossession as the remedy.

Part V: Administration of properties

Chapter 15: Administration and allocation of properties

15.1 Background During the initial deployment to Kosovo, UNMIK faced numerous problems in the housing and property sector, which urgently needed to be addressed to avoid a destabilization of the peace building process. The mission’s administrative capacity was at the time extremely limited. Enforcement of law and order had to be executed by KFOR over which the SRSG had no control. The Kosovo Liberation Army established parallel structures, the Serbian population continued to leave the province in high numbers, and ethnically motivated fighting flared up at strategically important places. With a view to address the lack of law and order, UNMIK adopted Regulation No. 1999/2 on Prevention of Access by Individuals and Their Removal to Secure Public Peace and Order on August 12, 1999.

The regulation provided a legal basis for several enforcement actions against individuals in case of threat to the public peace, which could be posed by any act that jeopardized public and private property. Although the regulation proved useful in regaining control of public buildings, it had little effect with respect to private housing. The lack of further specifications caused confusion and presented difficulties for the international police


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forces, who were to apply the provisions in practice and who encountered an increasing number of illegal occupations.127

The crisis in the property sector was further enhanced by the fact that large proportions of Albanian refugees returned to Kosovo, only to find themselves homeless due to the massive destructions of properties committed by the Serbian authorities during the conflict. The urgency of providing housing for these people triggered efforts to allocate them with temporary housing permits. The Housing and Property Task Force, consisting of representatives from different UNMIK offices, Habitat, KFOR and some local human right lawyers, submitted for legal review a draft regulation that addressed housing matters more distinctly. The draft Regulation on Temporary Use of Vacant Residential Property was a rapid response to the dire situation in the housing sector. It was to provide a provisional legal basis for the temporary allocation of abandoned housing and for the anticipated evictions of illegal occupants. The regulation was however never adopted. Doubts prevailed regarding the capacity of the newly established mission to effectively and consistently administer and enforce the proposed scheme. Another main argument against the draft concerned the potential liability of the UN in determining property disputes that would normally require court adjudication.

In light of the pressing need to address the deteriorating housing situation, the SRSG authorised UNMIK`s twenty-nine municipal administrators in October 1999 to temporarily allocate vacant housing to homeless people on humanitarian grounds. The authorization was a measure aimed at regularizing occupation of housing during the harsh winter months. It was not implemented consistently and was inefficient. UN Habitat’s plan of action had recommended back in August 1999 that UNMIK should centralize its housing and property activities (including administration of residential property) in a single institution. The recommendation materialized in Regulation 1999/23, which mandated the Directorate to administer housing for humanitarian purposes.128

15.2 Legal Framework The mandate is further elaborated on in Regulation No. 2000/60, which includes operational rules related to the administration scheme. First, it states a claimant’s right to request his property to be placed under the administration of the Directorate on a temporary basis.129 In terms of settlement of property disputes, administration may thus be provided for as a temporary remedy awarded by the Commission. Second, it includes substantial and procedural rules for granting and terminating administration. And third, it contains provisions on allocation and utilization of properties under administration.130

127 See supra note 27. 128 See section 3.2 B of this report 129 Section 8.3 (b) of Regulation 2000/60 130 Section 12 of Regulation 2000/60


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Section 12.1 authorizes the Directorate to administer abandoned housing. The term "abandoned" is in section 1 defined as any property, which the owner or lawful possessor and the member of his/her family household have permanently or temporarily ceased to use and which is either vacant or illegally occupied. Administration of such property is intended to protect the owner’s right to his/her property in line with internationally recognized human rights standards.131

The following provision stipulates the circumstances under which the Directorate may make an order to place a property under its administration. The different circumstances reflect the two ways by which a property is placed under its authority.

Alternative (a), (b,) and (c) involves administration of claimed properties. The first alternative mentioned pertains to the situation before a decision of the claim has been made by the Commission, thus indicating the Directorates responsibility for seeking to settle claims amicably. Alternative two and three pertains to the post-decision making situation, but differs in the sense that while (b) relates to a specific request by the property right holder, (c) refers to a situation where eviction has taken place on the request of the successful claimant but for some reason fails to repossess the property.

Alternative (d) refers to the situation where properties are placed under administration ex officio following the survey mentioned in the institution’s mandate. Alternative (e) refers to a situation whereby the right holder explicitly requests administration.132 Both alternatives pertains to situations were there is no claim to the property in question.

This last alternative has however a significant implication. Unless a property is placed under administration ex officio, any request for administration must be made by the property right holder. If a request should be granted, the Directorate has in fact (although indirectly) decided a property claim, which otherwise falls under the jurisdiction of the Commission.

Administration of properties means that the rights of the owner are suspended temporarily.133 While under administration, the Directorate is authorized to freely utilize the property in line with the principles governing the allocation scheme. Article 1.1 (b) of Regulation 1999/23 sets forth that utilization shall serve humanitarian purposes.134 The principle hereby recognizes the individual’s human right to adequate housing and

131 Article 1 Protocol 1 of the European Convention on Human Rights 132 It is unclear why not more claimants have used the “back door” instead of filing a claim with the Commission given the large numbers of uncontested claims. By December 2005, only 47 requests for administration by owners or occupancy right holders who have not claimed their properties had been received, 6 of which were received after the end of claims intake. There have been 3 cases of repossession. On the other hand, out of 2,745 properties under administration ex officio, 427 have been requested repossession. 133 Section 12.3 of Regulation 2000/60 134 Note that the municipalities have been given the primary responsibility to provide social housing according to Regulation 2000/45, but this does not preclude the responsibilities assigned to the HPD according to the mandate.


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confers upon the HPD as representative of the authorities the duty to fulfil that obligation.135

Section 12.4-12.6 regulates further how such utilization shall take place. It shall be based on issuance of temporary permits. Permits may be renewed, or withdrawn depending on the conditions set by the Directorate. The Directorate is given wide discretion in determining the principles and criteria, as long as they are compatible with the overall purpose to provide humanitarian housing.

The property right holder is given the right, at any time to repossess his property, and hereby terminate the administration.136 The provision hereby indicates the overall conditions under which public use of properties may take place. If the owner decides to repossess his property, his right overrides that of the public interest in providing adequate housing for humanitarian purposes. His right to repossess may however be suspended for 90 days following the eviction procedure set forth in the provision.

Throughout the period in which the property is placed under administration, the Directorate shall make reasonable efforts to minimize the risk of damage.137

15.3 Standard Operational Procedures The Directorate’s standard operational procedures (SOP) for the administration scheme are a comprehensive set of rules developing the legal framework with separate chapters for administration and allocation. The SOP is internal guidelines and not publicly available. They have been amended several times to meet the changing realities.

A. Administration

According to chapter 3 of the current SOP, the responsibility for receiving and processing applications for, and initiating administration ex officio, is assigned to the regional offices, under supervision of its head. The minimum criterion for granting administration is that the property is residential, and thus falls within the overall jurisdiction of the HPD. In addition, the property must be abandoned and inhabitable. The term "inhabitable" refers to properties that have not been completely or partially destroyed, rendering it uninhabitable. The criteria thus reflect the purpose of providing humanitarian housing.

Section 6-8 provides the procedural rules for determining whether the eligibility criteria are fulfilled. The procedures differ according to how the property is placed under the administration scheme. If a property is placed under administration ex officio, a full investigation needs to be undertaken to ensure that all the criteria are met. The property

135 Article 11 (1) of UN Covenant on Economic, Social and Cultural Rights, UNGA Res. 2200A(XXI), 16 December 1966. The content of the article is further specified in General comment No. 4 by the UN Committee on Economic, Social and Cultural Rights, on 12 December 1991. 136 Section 12.7 of Regulation 2000/60 137 Section 12.8 of Regulation 2000/60


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must be physically scrutinized, and all relevant information pertaining to it shall be noted down. The current occupant shall be notified about the request, and asked to produce documentation to prove his lawful occupancy.

If the property falls outside the HPD`s jurisdiction (not a residential property), the head of office will decline to grant administration and close the file. If the property meets the eligibility criteria, the case is sent to the head quarter, whereby the coordinator of all administrated properties under the institution grants administration. The occupant shall be informed about the decision.

If a property is placed under administration following a resolution of a claim, the jurisdictional issue is solved. Only a limited investigation is then necessary. Investigation will consist of verifying whether the residential property is abandoned and inhabitable. If a decision on the claim is final (reconsideration request taken into consideration), the head of regional office is authorised to grant administration of the property.

Rules for the termination of administration are provided for in section 10. The authority to terminate administration is formally vested in the Executive Director, but is delegated to the administrative coordinator at head quarter. Termination may only be granted upon request from the property right holder. If the property has been placed under administration ex officio, proof of the property right must be produced. The HPD may investigate any request for the purpose of verifying the right. If sufficient proof is produced, the request shall be granted, through the execution of an eviction order issued by the Executive Director.

Section 11 provides for a complaint mechanism, in which affected parties may challenge any decision made pertaining to the administration process. The appeal may be brought before a Panel, composed of the administrative coordinator at head quarter, heads of all regional offices, and the head of the Operational Department. The Panel may uphold the decision or make a recommendation to the Executive Director to grant the appeal.

B. Allocation

Chapter 4 contains rules on the eligibility criteria for housing assistance, as well as guidelines for processing such applications.

The criteria have been amended several times during the period in question, to reflect both developments in the housing sector, as well as the priorities of the HPD. The current criteria are quite comprehensive, and the following may be seen as summing up the main conditions: To be eligible, the individual must; 1) live in a property involved in the scheme at the time of submission of the application, 2) have submitted a formal application, and 3) be at least 16 years of age, have no physical access or means to alternative accommodation and demonstrate a connection with the local area. As a consequence of section 13.2 of Reg. No. 2000/60 the Directorate has added another criterion in the situation where the property right holder has requested repossession. Under such circumstances temporary permits for housing assistance may only be granted if the applicant is facing a serious security concern at the place of origin.

Finally, the Directorate has made priorities between the eligible applicants according to the security issues involved, the likelihood of immediate homelessness, the applicant’s age and the number of members in the household.

An application is usually submitted by the current occupant when being notified about the decision of a claim. Section 7 provides the procedural rules to be followed. The head of the regional office where the property is situated shall receive, process and decide


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applications for housing assistance. The process involves an investigation as to what extent the eligibility criteria described above are met and whether they have ceased to exist over time in case of applications for renewed permits. Affected parties are given a right to file complaints. The authority to decide on a complaint is ultimately vested in the Panel mentioned above and rules for processing the appeal is similar.

15.4 Implementing the Framework To achieve the purpose of providing protection of the owner’s property rights and provide a basis for the allocation scheme, the Directorate through its field structure embarked on the task of conducting the inventory.138 By the end of 2002, approximately 2,000 properties had been registered. However, about that time the preconditions for starting to process large numbers of claims were put in place. With this change in focus, work related to the inventory ceased. However, a new project called “the Survey of Abandoned Properties” was initiated in 2003. The project was limited in time and extent, and involved only socially owned properties. The project was later closed down. By the end of 2003 the HPD had approximately 3,000 properties under administration ex officio. Since 2003, only a very limited number of properties have been added ex officio to the list.

As the processing and decision making of claims picked up in 2003, it soon became evident that a substantial amount of successful claimants, rather than repossessing their properties preferred to request the HPD to administrate their properties. Throughout 2004 and 2005 approximately 60% of the successful claimants requesting implementation chose this option. Thus, by the end of 2005 the total number of properties under administration had risen to 5.468.139

There is no available information to break down further the numbers relating to the circumstances by which requests for administration were made. A substantial proportion seems to have been made pursuant to a decision by the Commission. It is further indicated that only an insignificant number of requests were received specifically due to the expiry of the dead line for claims intake. 140 The remaining requests relates to properties, which initially figured in the inventory.

Little information pertains to how and to what extent allocation of temporary housing has been carried out within the framework. 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 making real priorities between the individuals applying for housing assistance, in line with the internal procedures of the institution.141 This may be the case particularly in regards to the ex

138 See Section 1.1.a) of Regulation 1999/23 139 2.723 HPCC-decided claims based on request and 2.745 from the inventory (ex officio) 140 47 cases by December 2005 141 OSCE Mission in Kosovo, Property Rights in Kosovo 2002, 2003.


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officio administrated properties, as well as in regards to applications for renewal of permits. There is further reason to believe that the authority to allocate housing has been exercised differently between the regional offices.

In 2005, the HPD`s regional office in Pejë/Pec initiated an allocation scheme based on a more pro-active approach. The approach is designed to bring in more stakeholders into the process, hereunder the various municipal authorities, and the purpose is to make the best use of the existing housing stock by allocating abandoned properties to those with genuine humanitarian needs. The scheme has lately been expanded to the other regional offices of the institution.

As mentioned in the mandate, the administration of properties includes the development of a rental scheme, enabling the property right holder to receive payment for any use of the property. The issue seems to have surfaced within the HPD at several points in time since it started its operations. In June 2004 a US-based consultancy company drafted a report that included two different methods to implement such a scheme. The methods differ basically in respect as to who would be responsible for administration of the mechanism. According to the report it could either be assigned to a private company following a tender, or to a public institution. 142 Based on the report, the institution worked out a concept paper, which was submitted to UNMIK in November the same year. Throughout the following year the rental scheme was subject to discussions within UNMIK, and gained renewed interest in the discussions surrounding a possible new mandate for the institution. Thus, the HPD on request by UNMIK central authorities submitted a memorandum on November 17, 2005 outlining a proposal based on the second alternative mentioned in the consultancy report.

The basic principles were as follows: Identification of properties and tenants should be based on the criteria already provided for in the regulations and operational procedures of the HPD. The tenant will be charged market rent and be responsible for payment to the property right holder. Given the fact that most tenants will be social cases with no resources, a funding arrangement will have to be established. Funds would have to be made available through the PISG (the KCB), through UNMIK, or donors. The collection of rent and transfer of rental monies to the property right holder should be undertaken by a designated centralized institution under the authority of the PISG. The services pertaining to the administration would be financed by the property right holders, limited to 5 percent of gross payments. The extent of involvement and supervision by the HPD would depend on the circumstances in Kosovo and the various stakeholders’ ability to provide services in an impartial manner, based on criteria for good governance.

In April 2006 the SRSG approved the concept of the proposed rental scheme, and has mandated the newly established KPA to implement it in cooperation with the PISG.143

142 Bearing Point, The Rental Scheme June 8 2004) 143 See section 18.2 of this report.


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Chapter 16: Evaluation of the Administration Scheme Administration and allocation of properties serves two purposes. It shall protect the owner’s interests by providing protection to the property and payment of rent for the utilization of it. It shall further facilitate the public interest in providing temporary housing for people with humanitarian needs.

Administration is distinctly different from settling property disputes. Settlement of disputes over property rights falls normally under the responsibility of the judiciary. Administration of properties, on the other hand is purely an administrative task. Responsibilities pertaining to it are assigned to an executive body (or private entity). To assign responsibilities for both processes (resolution of disputes and administration), to the HPD reflects the exceptional mandate of the institution. While the Commission has responsibilities only related to the adjudication of property disputes, the Directorate is responsible for various activities pertaining both to the dispute settlement process, as well as the administration of properties. Initially, the intent was to assign activities related to the two areas of responsibilities to separate entities within the Directorate.144 The institution should consist of a dispute settlement branch responsible for performing services leading up to the adjudication of claims before the Commission and an administrative branch responsible for all activities related to the development and implementation of the administration scheme.

The administrative structure of the Directorate has never reflected this. Activities related to both parts of the mandate have rather been executed in conjunction, under one administrative structure. This may in part be assigned to the following circumstances: Activities related to the claims collection and the inventory both relied on an administration with extensive field presence and could most effectively be undertaken together; administration is further offered as a temporary remedy for property right holders who have submitted claims to the Commission. Activities pertaining to it are thus an integrated part of the implementation process (as well as the adjudication) provided for by the dispute settlement mechanism. The administrative structure of the Directorate thus seems to make sense from the point of view of efficiency.

During its first two years of operations, the Directorate managed to include a substantial number of properties in the inventory. Little information is available as to how the institution provided administration. The little information that does exist seems to suggest that the activities were limited to registration of the properties and issuance of temporary permits for the sake of regularizing the occupation that already had taken place.

The Directorate chose to adopt SOPs instead of adopting additional rules in the formal sense expressed by Regulation 2000/60. Within the UN system, the term SOP usually refers to internal procedures governing personnel, funding or other management procedures. The administration and allocation of property are public governance

144 Collection of Basic Texts; Housing and Property Rights in Kosovo, Habitat December 1999


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activities affecting the rights of individuals. The HPD could have adopted formally the additional rules as an administrative or executive directive - as it had done for some other matters - and should have been made public. Instead, it chose to regulate how it was going to implement the framework to administer and allocate property through internal procedures, which had no legal value and were not publicly available. By choosing to do so, the Directorate’s administration and allocation activities have been carried out without the necessary transparency, which in turn has generated unnecessary criticism.

Throughout the fall of 2001 extensive dissatisfaction were expressed with the overall performance of the institution by various stakeholders. Donors threatened to withdraw funds already committed to the HPD unless substantial changes were undertaken by the organisation. Criticism related basically to the lack of progress with the claims process. Insignificant numbers of claims were collected, even fewer claims had been decided, and implementation had hardly started. To avoid a crisis that would seriously jeopardize the whole operation, the HPD had to redefine its overall strategy and set priorities for further activities. The HPD’s response was to give priority to the claims process. Activities pertaining to the other parts of the mandate were temporarily set aside.

The priorities made seem well-founded, given the criticism that was directed to the HPD at the time. Resolving property disputes was the main responsibility of the institution and with a dead line for claims intake drawing near, collection of claims would have to be given full attention. However, the downscaling of activities pertaining to the administration mandate may also be attributed to the administrative structure of the Directorate. The lack of a visible unit within the institution could possibly explain why this part of the mandate failed to attract the attention of the donor community.

In the following paragraphs, the administration and allocation of property is evaluated taking into consideration the interest of the property right holder (administration) and the general interest of the public regarding the provision of humanitarian assistance (allocation).

16.1 Administration of property Administration of properties means essentially that the Directorate shall care for the property while the owner is away. It shall safeguard the property against destruction and provide for sound utilization, including collection of rent. Proper administration is a demanding task under any circumstances. To do administration in a post-conflict society short of housing and with ethnic tensions running high has of course additional implications. Administration, which initially was seen as a temporary service to the property right holder has more and more become a permanent state of affairs. The fact that the Directorate currently has more than five thousand properties under administration should be enough to grasp the huge undertaking administration really is.

The initial step taken was to conduct an inventory of abandoned properties. The purpose was amongst others to prevent destruction and illegal occupation of properties by regularizing the utilization of the properties included in the inventory. The task must be seen in the larger context of UNMIK`s efforts to provide necessary law and order to the province and to the property sector in particular. By the time the HPD was operational, illegal use was ongoing. A large proportion of the housing stock belonging to the Serbs and other ethnical minorities had already been illegally occupied or destroyed. The difficulties experienced by the institution in establishing a substantial field presence may have affected this undertaking. The institution would further have to rely on other


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international institutions such as KFOR and law enforcement agencies to provide the presence necessary to safeguard the properties. This however proved difficult for various reasons already mentioned. The situation in Kosovo at the time posed a number of challenges to the mission, and the different organisations had problems coping with their own responsibilities. The HPD was thus largely left alone with the task.

There is no available information which suggests what effect the HPD`s activities, at this stage, had on the overall objective of the mission to prevent further infringements on the rights of the property right holders. The issuing of temporary permits to the occupants may have prevented further destruction in the early phase. The fact that Albanians were given the opportunity to use the properties may have discouraged looting and destruction to a certain extent. Doubts however lingers as to what extent the issuing of temporary permits were based on a sound investigation of the occupant’s humanitarian needs, or whether the temporary permits were issued rather automatically to the current occupants. In this last instance, administration rather served the purpose of confirming the existing illegal use.

Throughout the period of the HPD`s operations, utilization has taken place without the envisaged payment of rental monies. The failure to develop and implement a rental scheme has prevented property right holders from getting compensation during this period. The fact that development of a rental scheme was already envisaged in the institution’s mandate may trigger the question why it has not been put in place. Based on available information, the failure may partly be contributed to the institution itself. According to its mandate, it is the HPD who has been given the sole responsibility to implement it as part of the administration scheme.145 Written documentation suggests that substantial work related to the issue where initiated at a very late stage. The fact that the scheme still is not in place seems to be a combination of the HPD`s lack of initiative, as well as a failure by UNMIK to give the scheme priority.

To combine a rental scheme with the overall objective of allocating humanitarian housing clearly implies a need for funding, since it is unlikely that eligible tenants would be able to afford payment of rent themselves. This fact also suggests the necessity for involvement by UNMIK and their responsibility to pursue possible avenues for funding. The renewed interest by UNMIK and the HPD in implementing a rental scheme comes at a time when UNMIK is developing overall exit strategies for the mission. The issue emerged in the discussions surrounding a possible new mandate for the HPD. The prospect of administration becoming a more permanent responsibility highlights the importance of the issue, as well as the past failures in this regard.

A condition for terminating administration is that the person who submits the request is a genuine owner or occupancy right holder. As long as the request is based on a decision made by the Commission, this should not present a problem. However, the regulation offers certain property right holders (owners or occupancy rights holders) an opportunity

145 Restated in a letter from the Office of the Legal Adviser to the DSRSG for Civil Administration, dated 16 December 2004, which confirms the HPD`s authority to design and implement such a scheme.


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to request administration - and subsequent termination - without the requirement of having their request adjudicated by the Commission.146 This is referred to in the HPD jargon as the “back door”. Since the request is not based on a decision by the Commission, the Directorate is in fact determining rights to properties. This is also valid for requests for termination when the property has been put under administration ex officio. That the regulatory framework includes this loophole allowing the Directorate to grant possession to individuals without the Commission’s scrutiny is problematic. A statement issued by the Directorate declaring that termination is not settling or confirming any property right and the act of terminating administration has therefore no legal value per se, is not very relevant when the property is in fact released to the individual requesting termination. It is obvious that whatever guarantees the Directorate puts in place they will never match the threshold of control of the Commission.

The Directorate has internal procedures to accommodate this situation, but the question remains whether they are sufficient to guarantee a correct determination of rights over the property. The procedures vest the authority to grant the request to a property coordinator within HPD by way of delegation. The Panel is further only brought into the process if an appeal is made, and only after the property coordinator has decided on the appeal. The Panel is clearly not a proper appeals mechanism per se, but rather a mechanism to sanction decisions already made. Reports from various stakeholders in and outside the HPD about false and unsubstantiated requests being granted indicates the system’s incapacity to provide sufficient protection of the actual property right holder.

16.2 Allocation of Humanitarian Housing Allocation of humanitarian housing was targeted to provide the most vulnerable groups like refugees and displaced persons with a place to live, until they could rebuild their homes or find alternative accommodation. This should be formalized through issuance of temporary permits whereby the beneficiary could occupy abandoned properties placed under the administration of the HPD. The essence of the allocation scheme is to distinguish between those applicants who have genuine needs for housing and those who do not.

According to Regulation 2000/60 the Directorate shall grant temporary permits for a limited period of time, and may be renewed upon application. It further envisages that the Directorate shall carry out evictions when the occupants cease to qualify for accommodation on humanitarian grounds, or if other conditions set by the Directorate is not met. The allocation of permits thus presupposes active management by the Directorate to ensure that the current utilization of administrated properties reflects the overall purpose of the scheme.

Unfortunately it seems as if such management only to a limited extent has been conducted. In 2004, the Directorate established an institutional policy whereby temporary permits were issued without an explicit expiry date. This effectively reduced

146 Section 12.2.e of Regulation 2000/60


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its ability to monitor the scheme. Reports suggest that this, in turn has resulted in instances of empty houses, illegal occupation, beneficiaries which in fact has had alternative accommodation, and use for other purposes than housing.

According to the regulation, the Directorate was left with wide discretion to determine the criteria by which an applicant would be eligible. One significant criterion is worth mentioning in this context.

The current standard operational procedures of the Directorate only allow for internal applicants to request housing assistance. "Internal applicant" is defined as a person who at the time of the application is residing in a property placed under administration. This criterion does not seem to be based on humanitarian grounds. The fact that a person already occupies such property does not necessarily mean that his humanitarian needs are stronger than other persons.

Even if the criteria stipulated in the standard operational procedures are found to comply with the overall purpose of the allocation scheme, the question remains as to what extent the HPD has implemented them in a fair and consistent manner. The process by which applicants are granted temporary permits presupposes an investigation to determine whether the criteria are met. This involves a scrutiny of the applicant's personal economy, medical conditions, and family relations and so on. Reports suggest that such investigation has been limited in scope and failed to reflect all relevant circumstances.

Proper administration/allocation is a comprehensive undertaking. As pointed out elsewhere in this report, it is likely that the establishment of a closer cooperation with the various municipal authorities would have alleviated the institutions resource constraints considerably. This, in turn could possibly have improved the execution of the scheme, while at the same time enable the Directorate to allocate resources to other parts of its operations. The limited priority given to these activities has consequently resulted in a situation whereby the institution has not fully utilized the potential within its humanitarian mandate. The main reason alleged for not prioritizing these activities is the lack of resources.

16.3 Conclusion The HPD has not fully implemented the mandate to administer and allocate property. The potential of the mandate has only been utilized to offer claimants unwilling to repossess their property with an interim remedy. Ex officio administration of property has only been implemented partially. There is enough evidence indicating that property under administration has not been utilised to provide housing to genuine humanitarian cases but rather to facilitate the tasks of the Directorate in implementing the decisions of the Commission. The rental scheme would have provided an avenue for none humanitarian cases to pay rent to legitimate property right holders and still serve as a tool facilitating the Directorate’s task of implementing decisions. By the end of 2005, the scheme had not been implemented. These conclusions cannot be attributed solely to the HPD and its management. Responsibility is also shared within UNMIK and the donor community, especially in identifying priorities and providing resources to address them. However, the HPD could have been more proactive in advocating for those priorities and providing intelligence on why they were essential components of the mandate.


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Part VI: Capacity building and exit strategies

Chapter 17: Cooperation and Local Capacity Building Capacity building is a term commonly applied in the context of development cooperation. It is often used in terms of assessing enhanced capacity within local institutions. The fact that the HPD is an international institution with a temporary mandate implies that capacity must be given a slightly different connotation. Capacity building in this sense is seen first and foremost in relation to the effects on local institutions, stemming from their cooperation and interaction with the HPD. Capacity building within the institution itself is limited to the enhanced know-how and experience, which the individual employee has gained through their participation in the process.

17.1 Cooperation Habitat’s program proposal from August 1999 addressed both short- and long-term concerns related to property rights in Kosovo. The program, with the view to further institutionalise and considerably increase action and attention to the issue, proposed to establish the HPD. It was conceived to serve as the focal point for all housing and property related activities of UNMIK. Its mandate reflects the multi-functionality of the institution, and its central role in providing overall direction on property rights in the province. Its potential has however never been fully utilized. As should be clear from this report, the institution has not been in a position to "provide overall direction on property rights in Kosovo". It has not been able to provide proper guidance to UNMIK and other international organisations in the field, and little research and recommendations on policies and legislation has been delivered.

There are of course many reasons for this. The initial difficulties the HPD experienced in setting up an operational organisation in Kosovo, and the subsequent lack of progress in processing claims forced it to redefine its overall strategies. This affected all parts of its operations besides the collection and processing of claims. At that time, the institution consisted of a policy and research team and had addressed issues related to the broader responsibilities of the mandate. With lack of support from the donor community and other stakeholders, these activities quickly ceased.

Another reason may be the difficulties the institution experienced in cooperating with central structures of UNMIK, as well as other international organisations. The limited administrative capacity of the mission during the early phase of operations, and the serious security issues it was confronted with gave little room for addressing long-term concerns, which presupposed research and development of policies etc. The difficulties the HPD initially experienced further gave the institution a bad reputation. The perception of the HPD as incapable of tackling their own responsibilities may have reduced other organisations will to approach the institution for guidance and support. In fact, UNMIK`s reluctance to be associated with the institution at that stage confirms the impression that the framework for cooperation was not ideal. When Habitat pulled out in the summer of 2002, it was with hesitation that UNMIK received responsibilities for the HPD’s operations in Kosovo.

Yet another reason may be contributed to the missions own limited capacity throughout it operational period to develop overall and long-term strategies for resolving property


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issues. Property rights is a cross cutting issue within UNMIK`s central structures. The four Pillars seem all to have had their own little piece of the “property pie”. This has likely enhanced difficulties in the decision making as well as in attaining coordination of efforts, and seems to have precluded interaction with the HPD. The HPD’s ability to agitate proactively in the property sector has been severely reduced by UNMIK`s layers of bureaucracy and the long chain of command down to the institution’s Executive Director.

Consequently, the substantial work of the institution has been related to the dispute settlement process, and to a lesser extent to the administration of properties. The mandate to resolve disputes is by nature not conducive to a high level of cooperation. There are certain requirements to an institution with a judicial mandate, and one of them is the importance of preserving independence. Although this, strictly speaking, did not pertain directly to the Directorates responsibilities, it is likely that the notion of independence has affected the relationship between UNMIK and the institution.

Cooperation with local authorities is possibly even more challenging. In an ethnically divided society like Kosovo, retaining impartiality may be met with scepticism or even hostility. Local institutions are now dominated by the Albanian majority population, and their reluctance to work together with the institution has been manifested throughout its operational period. The fact that the institution’s activities have been restricted to certain areas of its mandate has also limited the tools available for building confidence and a foundation for fruitful cooperation. Thus, to initiate cooperation under such conditions is, as anyone can imagine, difficult.147

17.2 Capacity Building A. External capacity building

Local capacity building with external institutions presupposes some kind of interaction between them and the HPD. Of the two areas in which the HPD has conducted substantial work, it is the administration and allocation of abandoned properties, which seems best suited for constructive cooperation. Both the HPD and the local municipalities have responsibilities related to humanitarian housing and should have similar interests in utilizing available housing for those purposes.148 In addition, the HPD’s regulatory framework does not present an obstacle for cooperation. In fact, section 15 of Regulation 2000/60 explicitly authorises delegation of such functions to the responsible municipal services.149 It provides flexibility in choosing modalities for arranging supervisory mechanisms, which in fact is ideal for achieving capacity building.

147 An example of established cooperation at the central level is the permanent implementation forum with the PISG. It was established by the Office of the Prime Minister on request from HPD to provide a platform for increase coordination between the two institutions in order to ensure an effective exchange of information and cooperation in support of the implementation of decisions. 148 UNMIK Regulation 2000/45 149 Section 15.2 of Regulation 2000/60


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In particular, the allocation scheme presents a good opportunity for cooperation. The municipalities could play a central role in identifying persons eligible for the scheme. With local knowledge, they would have an advantage when investigating and applying the eligibility criteria for temporary housing developed by the institution. The scheme would likely not be affected by biased ethnic considerations since the applicants in most areas would be of Albanian ethnicity. This would require extensive interaction between the parties, and would likely bring about increased capacity in the municipalities. The HPD could gradually scale down its activities, as capacity was being built, and could finally limit itself to provide the overall supervision through the issuance of temporary permits.

The HPD has previously taken initiative to facilitate capacity building in this regard. In 2000, the HPD launched a training scheme, were staff members from all municipalities were invited to attend. Subsequent to the promulgation of Regulation 2000/60, the Directorate further issued an administrative directive in which partial delegation of functions related to the execution of the administration scheme was authorised.150

These early efforts managed to produce some results in certain municipalities. In 2003, the OSCE reported on instances of cooperation with the municipalities of Dakovica and Strpce.151 Further, the municipalities of Skenderaj and Pristina had devoted staff to the task of conducting the inventory with significant results. Despite these scattered efforts, no proper cooperative framework has been established, and the overall relationship between the municipalities and the HPD has remained distant.

The main reason for this may be contributed to the municipalities themselves. Their lack of cooperative spirit may be explained by a general reluctance to legitimise the HPD`s work, as well as individual staff members scepticism to participate in a sensitive procedure in which the threat of eviction creates security concerns. The complexity of the situation is also illustrated by the fact that many staff members including high officials themselves participated in illegal occupation. The training program may also have been initiated too early in the operational period of the HPD to achieve significant and sustainable results.

However, it also seems fair to say that the HPD over the last few years have failed to take renewed initiatives to facilitate a closer cooperation. This would be appropriate, given the time-lapse and its impact on the overall environment in the province, as well as the overall improvement of the institution’s standing in the public. The atmosphere over the last few years seems to be somewhat more conducive to a closer relationship, and renewed efforts could stand a better chance of achieving positive results.

The initiative taken by the institution’s regional offices in Peja/Pec to develop a closer cooperation in regards to the execution of the allocation scheme should be praised. It is

150 HPD Administrative Directive No. 2000/1 151 See supra note 99.


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well designed and has the potential for building local and sustainable capacity. It has lately been expanded to all regions of the province.

It could also be added that such interaction would possibly benefit the HPD itself. Although the initiative may increase the eviction ratio and burden the institution’s efforts to implement its decisions in its final stages of the completion of the mandate, it may also serve to reduce resources needed to process applications for housing assistance. Whatever the overall resource implications may be, the significance and importance of this co operational framework has lately been acknowledged by the management, and has now been expanded to the other regional offices. The potential for enhancing its overall reputation, not only as a dispute settlement body with powers to evict people, but as an institution with a humanitarian mandate to assist the local population, thus is certainly present.

Contribution to capacity building in light of the institution’s mandate to settle property disputes is a somewhat different matter. The fact that the regulatory framework confers upon the institution an exclusive jurisdiction to adjudicate certain claims resulting from particular historical events certainly gives it a profile which from the outset cannot be expected to generate any substantial capacity building. The regular interaction with local courts, which relates to the institution’s verification process, is not suited for building capacity. The nature of the issues dealt with by the HPD will further be history, when all claims are resolved. The procedural rules will not be applicable in ordinary court proceedings. The only potential for future applicability is as evidence of property rights, but handing over of files will coincide with the HPD`s closure of operation and can hardly be seen as generating capacity building in the ordinary meaning of the term.

The only area in which proper cooperation with local institution in fact has taken place, relates to the execution of evictions. As described earlier in this report, execution of eviction orders is carried out with the support of representatives of the Kosovo Police Service (KPS).152 This relationship has gradually been established through extensive interaction, in which the parties have developed a procedural framework for notification and support. Despite the difficulties experienced from the outset, and in various regions of Kosovo, this is an achievement. It is likely that significant capacity building has been generated through their participation in the processes.

B. Internal Capacity Building

The temporary mandate of the institution implies that it will cease to exist once it has completed its tasks. Internal capacity thus does not refer to institutional capacity building, as if it will continue its functions on a permanent basis. It rather relates to the individual staff members opportunities to acquire knowledge and experience, which for him/her will be beneficial later, in one way or another.

During its first years of operations, the institution initiated training and other activities suited for building capacity. Such activities seem to have been limited over the last few

152 See section 13.3


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years. This is so, even if the institution has continued to recruit new personnel during the same period. With much focus on completing its mandate, the modality of capacity building seems to have been learning by doing.

Throughout its period of operations, the institution has employed a substantial number of local staff members. Many have come and gone while others have remained with the institution for a long time. The opportunity to work with an organisation like the HPD is likely to have improved capacity for many staff members. This is perhaps most so for those with a legal background who have been able to take part in the substantial work related to claims processing. However, this also pertains to other staff. For instance, translators who have been given opportunities to improve their language skills, and IT-personnel have gained experience, which surely has enhanced their competence. There are also examples of local staff members who have been given administrative and supervisory functions within the institution.

Chapter 18: Exit Strategy

18.1 Deadline for completion The nature of the HPD’s mandate presupposes that the institution at some point would close down its operations and cease to exist. Recalling Regulation 1999/23, this could take place when the SRSG determined that local courts and governmental bodies were able to carry out the functions entrusted to the Commission and the Directorate, or when the HPD had completed its mandate.153

By the summer of 2004 no decision had been made by the SRSG to transfer responsibilities in the mandate to local institutions. About that time, the newly incoming Executive Director of the HPD declared a self-imposed deadline for completing the mandate. The deadline was set for the end of 2005. The exit strategy developed by the institution and presented to the Advisory Board in June 2005 had the following components:154

• All claims decided and implemented by the end of the year.

• Individual case files handed over to the respective municipal courts in which the properties are located to secure historical memory.

• Facilitate the handover by targeting the local judiciary with an information campaign in conjunction with UNMIK Pillar I and III. The purpose is to make them logistically prepared to receive large volumes of case files and substantively competent to utilize the files in their daily work.

• All files digitally reproduced and electronic copies made available for the courts, UNMIK and other institution identified by the SRSG.

153 See sections 2.1 and 1.1 154 Minutes of the 2nd Session of the SRSG Advisory Board on the Housing and Property Directorate, 1 June 2005


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• Development and operationalize a rental scheme related to the institution’s portfolio of administered properties.

The deadline set by the management rose out of discussions held in the summer of 2004 with key members of the donor community. The financial situation at the time presented a huge challenge, and the targets may have been set forth to boost confidence in the institution and the management in an attempt to secure additional/continued funding. This resonated within UNMIK and other stakeholders, and it soon was perceived as an "official" deadline for completion of the mandate. However, by the end of the year, the institution was still fully operational.155 The Commission was making decisions, and implementation of already decided claims was ongoing. A number of other responsibilities pertaining to the mandate had further not been resolved.

The evaluation has identified two major constraints, which likely have affected the HPD’s ability to execute its exit strategy. The first constraint relates to the nature of claims remaining in the institution’s portfolio. The institution initially set out to resolve the simple uncontested claims mostly related to category C claims. These claims were ideal for mass claims processing and resulted in a substantial number of claims being resolved in the period from 2003 until the first half of 2005. The remaining part of the institution’s portfolio of cases consisted of contested claims related to the category A (and C) claims. These cases were inherently more complex to process, and time-consuming to adjudicate. The production number thus decreased correspondingly towards the end of 2005.156 The fact that these claims were contested also lead to a drastic increase in reconsideration requests submitted with the institution, which would further prolong the resolution of the claims. It seems fair to suggest that the management, when formulating the work plan and setting the deadline underestimated the time needed to decide the remaining claims.

The second constraint relates to the turnover of staff members during the same period. A substantial number of key employees, both locals and internationals left the institution throughout 2004-2005. This affected the production of cases and implementation of decisions adversely by slowing down the whole process.157 There may be several explanations for this outflow of staff members. The self-imposed deadline may have triggered staff to look for alternative and long-term employment opportunities elsewhere.

An additional factor relates to a deteriorating working environment experienced in the institution. The desire of the management to deliver on its promise more or less pushed the mechanism to its limit. The pressure on staff members to produce numbers was extensive. Rather than appreciating their substantial and continuing contributions, none-compliance with the set targets had repercussions for individual members.

155 In addition to the 96 claims left to be decided in first instance, 1.796 reconsideration requests were pending. Further more 23.6% of the claims were pending implementation. 156 During the first half of 2005 the Commission issued 8.222 decisions while during the second half of 2005 it amounted to 1.312 claims. 157 See p. 11 of the institution’s annual report for 2004


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Reorganisations and shuffling of positions and responsibilities took place without debate or prior notice to the concerned staff members. A general lack of communication and openness between management and staff is at times striking. Comments and suggestions made for the purpose of improving performance, was perceived by the management as criticism and disloyal behaviour. The management further failed to recognize key staff members’ importance for the institution’s overall performance. Loss of experienced personnel at such a stage of operations is bound to have negative effects. Recruitment of new personnel may first of all be difficult, when potential employees are faced with an institution, which within a short period of time is closing down. Even if recruitment is possible, training must be afforded, which is time-consuming.

In hindsight it seems quite obvious that the self-imposed deadline was too ambitious from the outset. It is fair to suggest that the management should at an earlier stage have acknowledged the situation, and made necessary adjustments. Instead, the institution did, as late as in the fall of 2005, repeat its ambitions to complete its mandate by the end of the year. This obscured the facts, and was suitable to deceive claimants and relevant stakeholders.158

The fact that the deadline was not adhered to has of course impacted on the institution’s ability to execute its exit strategy. The closure project, which involves the preparations of files for handover is ongoing in relation to claims already decided and implemented, and is pending finalization of remaining claims. The project, which is also tasked with the responsibility of making a final check of the files, has detected difficulties in one area of cases. The difficulties pertain to claims, which have been registered as withdrawals. Uncertainty as to the real intent of the claimant’s decision to withdraw the cases has result in a reopening of a number of cases for processing.159

By the end of the year no files had been handed over to the designated authorities. This may also have affected other aspects of the handover process. Information campaigns targeting local judges and work related to the compilation of a handbook on the institution’s jurisprudence, was planned but no available information exist on its execution or finalisation.

Prominent issues, such as the execution of the compensation mechanism and the implementation of a rental scheme remained unresolved at the end of 2005.

18.2 Kosovo Property Agency It has previously been pointed out that the restitution process undertaken by the HPD has had insignificant impact on refugees` and displaced persons` actual return to Kosovo. As this gradually became evident during the operations, UNMIK started to look for additional means, which could promote the return process.

158 The EAR which probably has been the member of the donor community, which has followed the HPD most closely expressed its concerns to the institution in a letter dated 11 August 2005. 159 188 claims by 31 December 2005


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In recognition of the fact that refugees and displaced persons would not return without an economic basis, it initiated discussion among the stakeholders on the establishment of a mechanism to resolve outstanding disputes over land and commercial property. The issue had not been dealt with over the last seven years, but gained renewed attention in 2005.

All stakeholders agreed to the necessity of such an intervention, thus the most prominent issue in the debate related to what mechanism would be best suited to implement it. A feasibility study commissioned by the European Agency for Reconstruction in 2004 provided the basis for the discussions.160

The study estimated that a minimum of 11,000 claims could be expected, and went on to assess what mechanism would be best fit to resolve them. The legal issues involved indicated that the regular courts would be best suited for the task. However, for reasons already indicated above, the study concluded that another mechanism was needed. Other existing mechanisms, such as the office of the Ombudsperson, the HPD and the KTA were assessed, as were the option of establishing a new mechanism similar to that used for restitution of property in Bosnia. The study concluded that the HPD should be given the mandate to process claims pertaining to commercial property and land, and the reasons were basically that this had less financial implications, and would be more efficient than other alternatives. The main disadvantage of expanding and extending the mandate of the HPD was that it perpetuated an ad hoc alien institution and, indeed, postponed execution of its own exit strategy. This would happen at a time when UNMIK was scaling back its own operations and, increasingly, opting for the nationalisation or domestic ownership of institution’s and processes. It also ran counter to the promotion of domestic legal institutions and remedies.

The discussions were in its final phase as research related to this evaluation was conducted. In April this year the SRSG promulgated Regulation 2006/10, which represents the outcome of the discussion. Under the regulation a new Kosovo Property Agency is established as an independent administrative agency with competence to examine disputes related to land and commercial property. The agency is designed to build upon the expertise and experience gained by the HPD.

The Commission will make findings and reach conclusions. Its conclusions will be submitted to the competent local courts in the province. Parties involved in the dispute are given a right of appeal to the Supreme Court of Kosovo. The Directorate will in terms of its human and physical resources be subsumed by the new agency.

The KPA is given the responsibility to finalise the mandate of the HPD, which includes adjudication and implementation of the outstanding claims. It will further continue the

160 Moratti, M., Philpott C. and Wicklin B., Feasibility study to assess the scope and nature of work for an alternative dispute resolution mechanism for land and private commercial disputes in Kosovo: Final Report, Prepared by ECO for the European Agency for Reconstruction, December 2004


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administration scheme including the implementation of the rental scheme related to HPD`s mandate.

The discussions surrounding KPA has likely affected HPD`s ability to execute its exit strategy. This is the case particularly in relation to the administrative mandate. The uncertainty related to who would be identified as the successor entity, has prevented the institution from engaging in a process of transfer of responsibilities.

Part VII: Conclusions and Lessons Learned

Chapter 19 : Conclusions and Lessons Learned The international community’s latest efforts in peace-building have highlighted the importance of property rights. Clear and undisputed property title plays a fundamental role in the economic recovery from conflict and is a prerequisite to attract foreign investment. The protection or restoration of property rights is closely linked to the return of refugees and displaced persons, the protection of human rights and the restoration of the rule of law. Conducting a restitution process in the aftermath of war is a fairly new endeavour and is likely to be of topical interest in the future.

This report has described and assessed the residential property restitution process as it has been conducted in Kosovo, under the auspices of UNMIK. The process is now in its final stages and the issue arises as to what possible lessons are to be learned from this undertaking.

The model used in Kosovo draws extensively on the experience from Bosnia. The process used in Bosnia was particularly relevant, given the fact that the underlying legal systems were essentially the same. However, there are a variety of models, which may be used when designing new processes elsewhere. The current restitution process, taking place in Iraq is the most pertinent example. The most important thing is that the model used takes into account the particular circumstances in which the restitution process is going to be conducted. This chapter therefore will focus on four general issues, which inevitably arise when designing an effective and fair property claims process in the aftermath of armed conflicts.161

19.1 Institutional Design Different institutional models are available to design property restitution claims programs. While the Bosnian model was basically administrative in nature, the Kosovo model has judicial elements. The most significant, perhaps being the largely adversarial

161 See supra note 55.


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process envisaged in the HPD`s regulatory framework. Since the Commission, as a rule, do not hold hearings, or receive oral evidence, the framework is designed to provide the procedural guarantees applied in ordinary court hearings by inviting affected parties to participate in the procedures, and arrange for exchange of written evidence and arguments. This has, as described earlier in this report, been a huge undertaking. Not only does it have extensive resource implications. It is also very time consuming, something which was witnessed for instance in the South African restitution process which design can be compared with that used in Kosovo.

In post-conflict situations were similar events have affected tens of thousands of individuals; there is a need to design mechanisms which can handle the expected caseload expeditiously. The objective of providing effective remedies becomes of paramount importance. An administrative model is likely better equipped to achieve that, than a court driven process. However, it is of utmost importance when selecting the right model, to assess the nature of the claims. If the claims are likely to give rise to genuine contest, this may remedy a process with more judicial elements, compared to a situation where claims are uncontested and determination becomes more of a formality.

An interesting thing about Kosovo is that the situation changed drastically during the drafting and the inception period of the HPD. The proposal for its establishment was initially intended to rectify past discrimination committed by the Serbian authorities towards the Albanian population. Claims based on this assumption were expected to give rise to a genuine legal dispute and would remedy a process, which afforded parties the benefit of comprehensive procedural guarantees. As it has turned out, only a fraction of the total number of claims submitted to the institution relates to these events. The overwhelming proportion of claims have, rather been submitted by Serbian claimants, who fled the province in the aftermath of the NATO air campaign. Claims arising out of these events are largely uncontested, and processing such cases has required little more than a formal confirmation of their property rights.

Another issue, which has proved important, is that of achieving transparency in the process. This is especially so, if proceedings tend to become lengthy. General insight into the mechanisms activities, coupled with concrete information related to claims status will ease the suspension, and prevent claimants from losing interest and give up on the claim. Lack of transparency was highly present during the HPD’s first years of operations. Without a functioning website, and with inadequate resources to respond to incoming inquiries, the claimants and the public at large were alienated. The overall perception of the institution largely improved when installation of proper IT-tools and the establishment of a call centre were put in place. However, publications of decisions have only recently begun.

IT-tools and a proper database is further essential for several other reasons. Mass claims processing techniques cannot be effectively utilized without a functioning database. A sophisticated database can also secure fair proceedings by providing necessary checks and balances to prevent for instance manipulation of file-data.

Yet another issue to be considered is the extent of international involvement in such processes. For instance, the newly created restitution process in Iraq does not seem to depend on international participation. Ownership is of importance, and may have many advantages compared to internationally driven processes. Ethnically divided societies still marked by high levels of tension, is however not conducive to such arrangements, and may benefit from international involvement. It seems quite obvious that international participation has had positive effects, both in Bosnia and Kosovo. International presence


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has helped to secure the integrity of the process, and the adjudication is perceived to be impartial. Internationally driven processes should however find ways to include all groups of the local population. A lack of a Serbian member of the Commission, and the Directorate’s difficulties in recruiting staff members from minority groups is unfortunate in this respect.

The experience in Kosovo in conferring both judicial and administrative responsibilities on one institution has proven not to be very successful. The different nature of these undertakings seems to be very difficult to combine. The temporary administration of properties is far too important to be left aside, as it has been in the HPD. This also applies to the institution’s responsibilities for conducting research and policy issues.

War-torn societies will often lack the necessary means to undertake a proper restitution processes. The planning and implementation of a property claims process obviously requires sufficient levels of funding over a number of years. The initial cost of setting up computer-supported processes for claims registration and verification, designing software and databases, training and equipping regional offices, etc should not be underestimated. Thus, for such processes to become successful, it is crucial that the international community is prepared to support it. Without sufficient and reliable funding from the outset, proper planning and implementation becomes very difficult. Kosovo is here a good example. The limited funding afforded to the HPD during its first years of operations caused extensive damage, and posed a serious threat to the whole operation. Although, the donor community is right in setting forth conditionality for support, and demand changes in instances of incapability, it is important that they operate with realistic expectations. To operate a highly sophisticated legal mandate in the environment presented with in Kosovo is an obvious challenge. The fact that such an exercise is fairly new to international missions, with little experience to rely on, should also be borne in mind. Thus, a proposal for the establishment of a new internationally driven restitution process should be treated with caution, unless sufficient funding can be attained from the start, and additional funds secured for the period it takes to complete the task.

19.2 Administration of Evidence Societies, in which restitution processes are undertaken often presents particular challenges in relation to the quality and amount of available evidence. This may have to do with the traditions and the culture of the society, or it may have to do with events related to the conflict. Kosovo is an example of both. With weak traditions for registering property rights, public records were from the outset unreliable. This was further enhanced during the 1990`s when the population were forced to circumvent newly adopted discriminatory laws. During the conflict, many records were destroyed and the substantial proportion of the remaining records removed and stored in Serbia proper. The question thus arises as to what extent such situations justify procedures intended to relax the evidential requirements.

Different models may be used to remedy the situation. One frequently used is that of authorizing the use of presumptions and inferences. This has clear advantages in terms of efficiency. If the adjudicative body is spared the effort of assessing parts of the evidences individually, it will be possible to decide more claims within the same time-period. This may also be justified in terms of fairness, because the facts, which the claims are based on, are so obviously manifested. However, this presupposes a thorough examination of all aspects of the situation, before it can be incorporated in a regulatory framework. If


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used wrongly, it may jeopardize the notion of the process being impartial. It further has a serious disadvantage because it increases the risk of receiving fraudulent claims. In Kosovo the use of presumption related to discrimination was hotly debated during the drafting of Regulation 2000/60 and was eventually not incorporated.

A model used both in Bosnia and Kosovo, and now in Iraq, is that of conferring responsibilities upon the restitution mechanism to collect evidence, and seek verification of documents. Although this requires a lot of resources, it also has a number of advantages. It makes it possible to pursue a high degree of certainty and a minimal rate of error. If the fact-finding activity of the institution takes place diligently, in full impartiality and independence, the process will fulfil the requirements of fairness, and prevent false or fraudulent claims from being submitted. It further alleviate the burden placed on the claimant to produce evidence which for reasons such as limitations on the freedom of movement, or practical and economical matters is likely to prevent them from substantiating their claim. Thereby, it also makes the restitution process accessible to more claimants.

19.3 Enforcement of Decisions Decisions taken by an international dispute settlement body in post-conflict areas will not necessarily be respected. This was exactly the case in Bosnia, were implementation of CRPC's decisions were left for the local authorities to implement. The lack of a credible enforcement procedure created severe problems for CRPC certificate holders, and caused frustrations both among the claimant population and the international community. Eventually, the High Representative had to impose specific laws in each entity setting out the concrete steps that local authorities were expected to take when a claimant requested implementation of a the CRPC decision. Well-defined procedural steps together with strict deadlines made it possible for the international community to better monitor the implementation process. Though there are no accurate statistics, it is clear that respect for the CRPC decisions started to grow after the implementation laws entered into force, even in areas where obstruction of property rights was prominent.162

To avoid similar problems in Kosovo, UNMIK equipped the HPD with powers to enforce the decisions of the Commission. Due to high security concerns and difficulties in maintaining contact with the claimant throughout the process, this proved to be both difficult and slow.

More importantly, it has proven not to be effective in restoring the claimants in their properties. This may partly be contributed to the modality used for implementation by the institution. Conducting evictions on a case-by-case basis is inadequate to facilitate return/repossession, because the security concerns involved for the individual is too high. An important lesson learned from Kosovo is thus to consider various modalities for the implementation of property rights confirmed in the process. More concerted efforts,

162 See Garlick M. . Protection for property rights: a partial solution, 2000

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through mass implementation of decisions related to specific areas will possibly decrease the risks involved and be able to persuade more claimants to move back and repossess their properties.

19.4 Remedies The ultimate aim of a restitution mechanism would be to provide the owner with the possibility to repossess his property and continue to live and prosper there as if the conflict, which forced him to abandon it in the first place, never had happened. The reality is often far more complicated, something, which surely has been proven right in Kosovo.

The adoption of the regulatory framework for the restitution process, at the time, reflected the objectives of the newly established mission to rebuild a multi-ethnic society. Thus, the so-called refugee claims under the HPD`s mandate were given the right to return to Kosovo, and repossession being the remedy. After almost seven years of consorted peace-building efforts by the international society, the prospects of an effective remedy for the large proportion of the claimants remains bleak. Kosovo is perhaps more ethnically divided than ever. The security situation is far from satisfactory. Although the Albanian leaders in Pristina repeat their commitment to building a multi-ethnic Kosovo, and the level of reported inter-ethnic crime is low, the situation on the ground is perceived differently. The March incidents of 2004 prove the entrenched ethnic divide, and the serious concerns it poses for the minority population. Their freedom of movement is subsequently limited. While occupation of land and property still is widespread, the remaining Serbs are confined to enclaves throughout the province.

Consequently, the return process has grinded to a halt. The statistics related to the HPD’s activities, referred to throughout this report confirms this impression. The facts thus raises the question to what extent restitution processes are capable of providing effective property rights protection, and what kind of remedies should be made available to the claimants.

Monetary compensation is often used as an alternative remedy to restitution in kind. Compensation however raises a number of challenges. Perhaps the most important one is that it may significantly impact upon the return of displaced persons and refugees. If the prospect of return in the immediate future seems unrealistic, they may easily give up their property rights and elect compensation instead of return. Compensation would provide an incentive not to return, entrench the effects of ethnic cleansing, and run counter to the overall objectives of a peace-building mission like the one in Kosovo.

Compensation further presents a challenge in regards to funding. The model used in Bosnia was that the dispute settlement mechanism became the successor in title to any individual who were granted compensation. A fund was to be established subsequently in the Central Bank Of Bosnia and Herzegovina and be administrated by the dispute


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body. Accordingly the fund would be replenished through the purchase, sale, lease and mortgage of real property, which was the subject of claims before the commission.163 The arrangement did however prove inadequate, partly because the income-generating activities could not be sustained at a sufficient level in the Bosnian context.

In Kosovo, most claimants were from the outset not provided with compensation as an option. The alternative to restitution in kind was administration of the property until the situation became conducive to return. Administration was intended to provide income for the claimant through a rental scheme. The HPD has however so far failed to provide such a scheme. Even if it would be established, there is much uncertainty as to what extent it would be able to generate income, given the regulatory limitations on eligible candidates, and the overall situation in Kosovo. A possible solution could be to request funding from countries, who contemplate returning refugees back to the province. In any event, administration is a temporary arrangement, and is not suited as an effective and sustainable alternative.

In hindsight, it may be argued that whether the regulatory framework should have opened up for compensation as a remedy. The fact that repossession for claimants is inconceivable leaves most of them with selling as the only option. Having to arrange for sales by them selves is problematic for a number of reasons and may involve a great risk. A compensation scheme which involved facilitating the sale of the property on behalf of the claimant on a basis that gave rise to valid transfer of title could greatly benefit claimants under the current circumstances. One practical option, could for instances be that of putting properties up for public auction.164 Given the current market for real estate in Kosovo, this could possibly produce a better outcome for many claimants who today experience blackmailing in connection with private sales.

Although difficulties often arise in relation to finding financial support for a compensation fund, it should not per se rule out the use of compensation as an alternative remedy. It is worthwhile to explore further options for income-generating activities. If properly adapted to the given circumstances it may in the end be capable of benefiting claimants who has opted for compensation.

A model, which may be pursued further is that of finding ways of providing compensation inter parts. This solution, which was provided for in Kosovo seems to be a good example on how compensation as a remedy may be adapted to the particular circumstances in which a restitution process takes place.

19.5 Conclusions Post-war situations are inherently chaotic and complex. Setting up refined legal procedures for the resolution of property claims under such conditions is a difficult and

163 Dayton Peace Agreement, Annex 7, Art XIV 164 See supra note 100


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slow process, and requires substantial resources. The lessons learned from Kosovo however should not discourage the international community from establishing similar mechanisms elsewhere. The issues at stake are far too important to be neglected. The failure to address legitimate property rights concerns in the early phases after a conflict is bound to affect the outcome. A better understanding of the relationship between refugee return, rule of law, and the restoration of property rights is of paramount importance to the design of an effective and fair restitution process. The design must also strive to reflect the particular circumstances in which it is going to operate.


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Annex A List of people interviewed Institution Name Position

Knut Rosandhaug Executive Director

David Chillaron Cortizo Head Operations

Adam Juszczak Registrar Adjudication

Beqir Islami Registrar Implementation

Geir Johanssen Registrar Closure

Margaret Cordial External Relations

Agron Beka Head of Central Case Processing Unit

Gylshen Muharremi Property Administration Unit

Mykola Tkachenko Head of Enforcement Team

Andrés Moreno Enforcement Officer

James Nunan Head of Mitrovica Region

Arne Bangstad Head of Pec Region

Verena Blickwede Head of Prizren Region

Daniela Cemovic Head of Belgrade Office

Jelena Komatinovic Project Associate - Verification Officer

Valbona Svecla Head of File Services

Zvezdan Milenkovic Case Manager

Housing and Property Directorate

Dragana Trumpic Assistant Officer

Process Manager

Registrar Implementation

Monica Furustøl

Registrar Adjudication

Charles Ehrlich Head of Legal Department

Sandra Bafoe-Bonie Head of Legal Department and Acting Registrar

Espen Pettersen Case Manager

Jorunn Gjostein Case Manager

Petrit Prekasi Case Manager, Verificator

Former employees of the Housing and Property Directorate

Tove Nielsen Registrar Implementation


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Michael Rommelhoff Head of Gjilane Region

Alan Dodson Chairperson

Vejlko Heiskanen Commissioner

House and Property Claims Commission

Aqif Tuhina Commissioner

UNMIK

Office of Communities, Returns and Minority Affairs

Killian Kleinschmidt Deputy Director

Patricia Waring Director of Civil Administration

Leonid Makaryan, Senior Policy Coordinator - Property

Anthony Thompson Municipal Representative Peja/Pec

Ysmail Yilmaz Municipal Representative Klina

Mike Banfield Civil Affairs Officer

Dep. of Civil Administration

Refki Krasniqi Assistant Local Community Officer

Elisabeth Rolando Head of Judicial Development Div

Emma Hibling Legal Officer Supreme Court

Department of Justice

Dule Vicovac Judicial Integration Section

Provisional Institutions of Self Government

Armenika Etemi Senior Office for Standards Capacity Building

Qemajl Kadiri Head of Cadastral Unit Kosovo Cadastre Agency

Hajzer Bublaku Head of Legal Directorate

President of Municipal Court Peja/Pec

Kosovo Judiciary Besa Kraiku

President of Municipal Court Prizren

Director Property and LegalKosovo Local Self Government

Arta

Director of Social Welfare Affairs

OSCE Mission in Kosovo-

Pillar III

Katia Chirizzi Head of Human Rights

Jose Arraiza Senior Human Rights


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Adviser

Dara Katz Legal Adviser on Property I

Ombudsperson Institution

Marek Nowicki Ombudsperson

UNHCR

UNHCR Kosovo Martin Gottwald Protection Officer

Davor Rako National Protection Officer

Milena Petrovic Brauten Protection Assistant

Ljubmila Smiljanic Protection Assistant

UNHCR Serbia

Bosana Popovic Protection Assistant

SERBIAN GOVERNMENT

Kosovo Coordination Centre

Milorad Todorovic Vice President

DONORS

European Agency

for Reconstruction

Thierry Bernard-Guele Head of Kosovo Operational Centre

Simon Junker Director Swiss Agency for Development and Cooperation Saranda Pruthi National Programme

Officer

Netherlands’ Office in Pristina

Carel D. L Brands Head of Office

CIVIL SOCIETY

Centre for Housing Rights and Evictions

Scott Leckie Director

Norwegian Refugee Council

Berit Faye Petersen Residential Representative Balkans

Ivanka Kostic Executive Director Praxis

Aleksandra Kukolj Program Coordinator

Zeljko Rajkovic Executive Director

Branislav Skrobonja General Secretary

Miljan Lusic Lawyer

Union/Federation of IDP Associations

Zvezdana Arsic Responsible for Return

Zudije Sej/Shehu Executive Director

Beqir Krasniqi Legal Manager

Civil Rights Project-Kosovo

Erdin Thana Head of Office Prizren


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Annex B Documents Consulted 1) Articles

Knoll, B., “From benchmarking to final status? Kosovo and the problem of an International Administration’s open–ended mandate,” in European Journal of International Law Vol. 16 no. 4, 2005

Global IDP project, IDPs from Kosovo: Stuck between uncertain return prospects and denial of local integration.

September 2005

Aursnes, I. S. and Conor F., Property restitution in practice: The Norwegian Refugee Council´s experience, Norwegian Refugee Council, April 2005.

von Carlowitz, L., “Crossing the boundary from the international to the domestic legal realm: UNMIK lawmaking and property rights in Kosovo,” in Global Governance Vol. 10 no. 3, 2004

Das H., “Restoring property rights in the aftermath of war,” in International and Comparative Law Quarterly, Vol. 53 no. 2, 2004.

Dodson, A. and Heiskanen, V., “Housing and property restitution in Kosovo,” in Returning home: housing and property restitution rights of refugees and displaced persons (Leckie S. ed.), Transnational Publishers 2003

Milano E., “Security Council action in the Balkans: Reviewing the legality of Kosovo territorial status,” in European Journal of International Law Vol. 14 no. 5, 2003

Heiskanen V., “Speeding the resolution of mass claims using information technology,” in Dispute Resolution Journal 79, 2003 October

Mole, N and Harby, C., The right to a fair trial. A guide to the implementation of Article 6 of the European Convention on Human Rights, Council of Europe Human Rights Handbooks No.3. 2001

Van Houtte, H., “Mass property claim resolution in a post-war society: the Commission for Real Property Claims in Bosnia and Herzegovina,” in 481 International Comparative Law Quarterly, 625, 1999.

Harris, D., Boyle, M. and Warbrick, C., Law of the European Convention on Human Rights, Buttwerworths 1995.

2) International organizations

Report of the Special Envoy of the UN Secretary General, Ambassador Karl Eide, “A comprehensive review of the situation in Kosovo,” October 2005.

European Commission for Democracy through Law (Venice Commission), Opinion on Human Rights in Kosovo: Possible Establishment of Review Mechanisms (Opinion No. 280/2004), October 2004.

OSCE Mission in Kosovo Reports on Property Rights 2001 and 2002-2003.


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3) Donors

Moratti, M., Philpott C. and Wicklin B., Feasibility study to assess the scope and nature of work for an alternative dispute resolution mechanism for land and private commercial disputes in Kosovo: Final Report, Prepared by ECO for the European Agency for Reconstruction, December 2004

Scott, D., Kelm. T, and Dorsey, J., An assessment on property rights in Kosovo:, Final Report, ARD Inc submitted to USAID, March 2004

Evaluation Report - Swiss Development Agency for Development Cooperation, May 2002

NORDEM reports by secondees to the Housing and Property Directorate. September 2002-December 2005

4) Preparatory works

Housing and Property in Kosovo: Rights, Law and Justice. Proposals for a Comprehensive Plan of Action for the Promotion and Protection of Housing and Property Rights in Kosovo, Habitat-UNCHS prepared by Leckie, S., August 1999.

Reports on Property Issues in Kosovo commissioned by the Council of Europe prepared by Weldon J. and Rapp, A., February 2000.

Resolving Residential Property: Principles of Law, Evidence and Procedure for the Housing and Property Directorate and Claims Commission prepared by Cox, M., European Stability Initiative, April 2000.

5) Internal documents of the Housing and Property Directorate

Secondary Jurisprudence of the Housing and Property Claims Commission

Additional Rules of the Housing and Property Claims Commission

Standard Operational Procedures of the Housing and Property Directorate

Minutes of the Advisory Board on the Housing and Property Directorate

Handbook for Reallocation Scheme in Cooperation with Kosovo Municipalities, November 2005

Protection of Abandoned Residential Properties-voluntary rental scheme Memorandums - November 2005 and February 2006

Periodic Reports, January 2002-December 2003

Annual Report 2004 (with statistical update to June 2005)

Supplementary Agreement, Implementation of the Memorandum of Understanding of 2 July 2002 between UNMIK and Habitat on the Housing and Property Directorate and the Claims Commission

HPD Organigrams 2000-2005

6) Other

Collection of Basic Texts. Housing and Property Rights in Kosovo. First and Second Edition. Habitat-UNCHS December 1999

Clarification by the Special Representative of the Secretary General of UNMIK Regulation 2000/60 dated April 2001


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Ombudsperson in Kosovo: reports & decisions, incoming and outgoing letters. (www.ombudspersonkosovo.org)

Annex C Terms of reference

Framework – An evaluation of The Housing and Property Directorate in Kosovo (HPD)

Background:

The Housing and Property Directorate (HPD) in Kosovo was established by UNMIK Regulation No. 1999/23 to “provide overall direction on property rights in Kosovo until the Special Representative of the Secretary General determines that local governmental institutions are able to carry out the functions entrusted in the Directorate”. It’s purpose is to achieve efficient and effective resolution of property disputes in the territory of Kosovo and to provide creative and fair solutions for the many people of Kosovo whose rights have been affected by ethnic discrimination or the recent conflict.

The Norwegian Ministry of Foreign Affairs has for several years provided substantial support to HPD (2002: NOK 4,1 mill.; 2003: NOK 12,1 mill.; 2004: NOK 7,5 mill.) . In September 2002, five legal officers were financed through the NORDEM mechanism (NOK 1,2 mill.) and additional funds (NOK 2,8 mill.) were provided to secure the operational management of the organisation. In 2003 and 2004 secondments of four legal officers were supported with NOK 4.3 mill. and NOK 1,7 mill., respectively. The same level of secondments and budget support is planned to continue for 2005.

It is estimated that HPD by the end of 2005 will begin to hand over its work to local institutions. However, at the time of writing it is still uncertain whether HPD will extend their mandate to include responsibility for the solution of property conflicts related to commercial and agricultural land.

The aim of the assessment:

a) To assess to what extent the substantial work of HPD is in line with recognized international human rights standards, how the jurisdiction is established, how the case process has been carried out, and to what extent the process has served its purpose, namely, to provide a fair and efficient resolution of property disputes.

b) To look at the administrative structure and management of HPD in order to assess to what extent the mechanism has provided an “effective and efficient resolution to property conflicts.

c) To assess to what extent HPD has contributed to local capacity building and to what extent exit strategies have been elaborated.

d) To provide recommendations and lessons learned for future/other property conflicts in other places and other parts of the world.

3. Scope and method.

The assessment should cover the whole period from the establishment of HPD until the end of 2005 when the closure of HPD in its present form is foreseen.

In order to get a full view and understanding of the work and development of HPD, it will be of vital importance to look at the historical background and legal climate in


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which HPD has to operate. It will be necessary to look at the general property situation in Kosovo and the Balkans. Equally, the legal situation and the manner in which the law is applied in Kosovo. The assessment team should therefore be familiar with the relevant documents such as UNMIK regulations, e.g Reg. 2000/59 amending 1999/24 on the Application of Law and Reg. 1999/23 on the establishment of HPD and 2000/60 on the mandate of HPD. Relevant articles on The European Convention on Human Rights (ECHR) will also have to be considered.

In determining how a case is verified the assessment would have to look into the system in which a property is registered and how the cadastre/registration system works.

Otherwise, the assessment will be conducted by making interviews of a selected number of relevant actors such at claimants, employees, included former employees both international and local in HPD, and other institutions and organizations linked to HPD through their work.

Field visits will be essential.

In terms of assessing standards of case processing, samples of a selected number of cases from various regions will be tested.

4. Evaluation Team.

The assessment should be carried out by a team of two persons, who have demonstrated legal, social science and administrative expertise. It would be preferable if at least one member of the evaluation team has expertise in property law as well as sound knowledge of human rights law.

Both ought to have substantial knowledge of the Balkans, and at least one of them should be familiar with the legal situation in Kosovo.

Language requirements are English and Norwegian. Knowledge of Albanian and/or Serbo-Croat would be an asset.

5. Report of the findings

The assessment should result in a final report not exceeding 75 pages. The assessment should clearly express recommendations and lessons learned.

6. Time

The assessment is estimated to 3 x 2 months for two persons, i.e three months pr. person, commencing 01.06.2005.