30.09.2021. » 08:31

OP-ED Protection of property rights in Kosovo - slow and unreachable - Milan Smikić

Although the concept of human rights, more specifically the protection of property rights, represents civilizational achievement, its respect is faced with numerous challenges in post-conflict areas that are burdened by the lack of political support for resolving property disputes. Most of the institutional mechanisms in Kosovo responsible for respecting human rights and freedom are significantly disrupted during the pandemic and unfortunately failed to demonstrate their persistence and resilience.

Article 17 of the Universal Declaration of Human Rights (UDHR) guarantees that everyone has the right to own property alone as well as in association with others and no one shall be arbitrarily deprived of his property.

European Convention of Human Rights (ECHR) in Protocol 1, Article 1, states that „Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”

The property right is also guaranteed in Article 46 of the Constitution of Kosovo, as well in Law on Property and other Real Rights in Article 2. [1]

In legal theory, there is an opinion that property right is one of the most questioned rights, both in terms of nomotechnical formulation and its interpretation.

During a recent NGO conference on property issues in Kosovo and Metohija, one of the participants, a lawyer, has pointed out that there were approximately 70,000 cases in which the Serb minority tried to protect their property while encountering numerous systematic obstacles before Kosovo courts.

Professor Celic, who has been involved in property issues in Kosovo for decades, said that UNMIK-led courts that dealt with property protection disputes provided a greater degree of legal certainty regarding minority communities.

In the property protection procedure, the parties and their representatives are facing language barriers both during the procedure and when receiving submissions that are often not translated into Serbian, which further delays the procedure. There are a significant number of cases in which the prescription of property is misinterpreted or misused, ie. the time interval of calculating the deadline after which the property is transferred from the owner who does not execute the right (because it cannot physically access it) to another person -the non-owner. In other proceedings, a person of Serbian nationality fails to discover who is the passively legitimized party in the proceedings, that is, the defendant, in order to initiate litigation because the institutions declare themselves incompetent and thus deter the party from starting the litigation.

Last year's U.S. State Department's report on Human Rights in Kosovo stated that 96% of Serb submissions were mostly unsuccessful in cases of state interference, repossession, and restitution. [2]

What concerns the most is the broad legal powers of the Kosovo Property Comparison and Verification Agency (KAUVI) to resolve claims in terms of volume, value, and ownership of immovable property [3], with the largest number of claims coming from Kosovo Serbs who, years after the final judgment, are still waiting for removal of the illegal structures from their immovable property or to re-enter the immovable property.

All these obstacles during the property protection procedure in Kosovo do not provide an optimistic attitude to the minority communities in Kosovo, given that the average duration of the first instance procedure is seven (7) years. Even though this generation failed to welcome the final decision, the patience remains and the endless hope that their heirs will succeed?!

The author of the text is particularly interested in the Rule of Law process and the functioning of the judicial system in Kosovo and international investment law.

[1]https://kryeministri.rks-gov.net/wp-content/uploads/2018/03/Ustav1.pdf , https://gzk.rks-gov.net/ActDocumentDetail.aspx?ActID=2643 (24.09.2021.)

[2]https://www.state.gov/wp-content/uploads/2021/03/KOSOVO-2020-HUMAN-RIGHTS-REPORT.pdf (25.09.2021.)

[3]Član 4, stav 2, tačka 1. Zakona br. 5/L-010 o Kosovskoj agenciji za upoređivanje i verifikaciju imovine, 28. novembra 2016. godine