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«PETITIONS Private properties issues following the regional conflict in Bosnia and Herzegovina, Croatia and Kosovo STUDY Abstract The conflict or war ...»

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DIRECTORATE GENERAL FOR INTERNAL POLICIES

POLICY DEPARTMENT C: CITIZENS RIGHTS AND

CONSTITUTIONAL AFFAIRS

PETITIONS

Private properties issues

following the regional conflict

in Bosnia and Herzegovina, Croatia and

Kosovo

STUDY

Abstract

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

PE 419.632 EN Policy Department C: Citizens Rights and Constitutional Affairs __________________________________________________________________________________________

This document was requested by the European Parliament's Committee on Petitions.

AUTHOR(S) Michaela Salamun, Tatjana Josipović, Meliha Povlakić, Evis Halili (Baholli) Graz University

RESPONSIBLE ADMINISTRATOR

Ms Claire GENTA Policy Department Citizens rights and constitutional affairs European Parliament B-1047 Brussels E-mail: poldep-citizens@europarl.europa.eu

LINGUISTIC VERSIONS

Original: EN Translation: FR

ABOUT THE EDITOR

To contact the Policy Department or to subscribe to its monthly newsletter please write to: poldep-citizens@europarl.europa.eu Manuscript completed in March 2010.

Brussels, © European Parliament, 2010.

This document is available on the Internet at:

http://www.europarl.europa.eu/studies

DISCLAIMER

The opinions expressed in this document are the sole responsibility of the author and do not necessarily represent the official position of the European Parliament.

Reproduction and translation for non-commercial purposes are authorized, provided the source is acknowledged and the publisher is given prior notice and sent a copy.

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

CONTENTS

LIST OF ABBREVIATIONS 8

FOREWORD 9

1. INTRODUCTION 20

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

CHAPTER 1 – ENTAILMENTS OF THE RULES OF INTERNATIONAL

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Policy Department C: Citizens Rights and Constitutional Affairs __________________________________________________________________________________________

–  –  –

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

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Policy Department C: Citizens Rights and Constitutional Affairs __________________________________________________________________________________________

LIST OF ABBREVIATIONS

BiH Bosnia and Herzegovina CMW International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families CAT Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment CRC International Convention on the Rights of the Child DPA Dayton Peace Agreement ECHR European Convention on Human Rights ECtHR European Court of Human Rights ECJ European Court of Justice EP European Parliament EULEX European Union Rule of Law Mission in Kosovo EUSR EU Special Representative EXCOM Executive Committee of the UNHCR FRY Federal Republic of Yugoslavia GA General Assembly HR High Representative HRC Human Rights Committee ICC International Criminal Court ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights ICJ International Court of Justice ICR International Civilian Representative for Kosovo ICTY International Tribunal for the Prosecution of persons Responsible for Serious Violations of Humanitarian Law Committed in the Territory of the Former Yugoslavia IDPs internally displaced persons ILC International Law Commission ILO International Labour Organisation IO international organisation NGO nongovernmental organisation OHR Office of the High Representative OSCE Organisation for Security and Co-operation in Europe PISG Provisional Institutions of Self-Government SAA Stabilisation and Association Agreement SAP Stabilisation and Association Process SC Security Council SFRY Socialist Federal Republic of Yugoslavia SRSG Special Representative of the Secretary General TEC Treaty establishing the European Community TFEU Treaty on the Functioning of the European Union TEU Treaty on European Union UDHR Universal Declaration of Human Rights UNHCR United Nations High Commissioner for Refugees UNMIK United Nations Interim Administration Mission in Kosovo Private properties issues following the regional conflict in Bosnia and Herzegovina, Croatia and Kosovo __________________________________________________________________________________________





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

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

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

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

Solomon, R.H., ‘Preface’, p. xv.

Policy Department C: Citizens Rights and Constitutional Affairs __________________________________________________________________________________________

EXECUTIVE SUMMARY

Background The conflict or war in former Yugoslavia had profound humanitarian consequences, amongst others a massive displacement of the population, which lies at the basis of property issues resulting from this conflict. Thus during the conflict in Bosnia and Herzegovina (hereinafter: BiH) 2 an estimated number of 2.2 million persons left their pre-war homes. In the moment the conflict ended more than half of the pre-war population of BiH fell either into the category of refugee or displaced person and was deprived of their real estates and pre-war homes. Similarly, in Kosovo during the armed conflict/war in 1999, out of a population estimated in 1998 1.7 - 2.2 million persons, more than 850,000 Kosovo Albanians left Kosovo (though an estimated 750,000 returned soon after) and an estimated 500,000 persons were internally displaced. Meanwhile large numbers of persons from other ethnic communities (mainly Kosovo Serbs and Roma, Ashkali and Egyptians minorities/RAE) fled in fear of reprisals by the Kosovo Albanian population. The March 2004 violent incidents led once again to a forced displacement of members of minority communities in Kosovo. Additionally, several thousand ethnic Albanians remained displaced, mainly from the northern part of the city of Mitrovica, which became an enclave inhabited mainly by ethnic Serbs.

The reasons for people leaving their homes were different – some were forcibly displaced due to a politics of so-called “ethnic cleansing”, some fled from active fighting or from circumstances in which the supply, health protection and education were hindered. Moreover, in BiH some people voluntarily left the territory where they constituted a minority changing by legal act their real estate with other persons who for their part had left the territory where they were a minority. 3 Both performed this exchange in order to move to the territory where their ethnic group represented a majority.

The properties abandoned by IDPs, if not destroyed, frequently were unlawfully occupied by or allocated by public authorities to returnees, whose own homes had been damaged or destroyed during the armed conflict/war. Thereby a “secondary occupation” of abandoned properties took place. The property situation was further complicated by migration from the countryside into urban centres, illegal construction, incompleteness or destruction/removal of the cadastral records and the fact that the process of denationalisation had not been concluded (or not even started as in Kosovo 4 ) before the conflict-related displacement. Furthermore, in Kosovo the discriminatory legislation introduced by the Serbian Government during the 1990s had resulted in forced evictions from homes and a legal prohibition on interethnic property transfers had led to many informal property transactions never verified by a court or recorded in the cadastre.

In parts of BiH and in some international documents and judgements this conflict has been considered as an aggression by the former Yugoslav National Army and by the Federal Republic of Yugoslavia, i.e. Republic of Serbia, in other parts of BiH it has been seen as a national conflict or civil war. For the purposes of this study only the neutral term „conflict” will be used. The references for the text in the executive summary can be found in the respective country reports.

This legal transfer later became problematic; it was necessary to prove that the exchange had not been performed under pressure.

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

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

the study deals with are:

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

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

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

 How has this system been implemented?

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

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

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

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

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

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

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



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