In August 2007, in a decision upon a filed objection, German Federal Ministry of Defence finally rejected Gajic’s request for rental compensation. Mr Gajic was instructed to appeal before the Administrative Court in Cologne. Therefore, in September 2007, a complaint against the Federal Republic of Germany was lodged before the Administrative Court in Cologne.

A request for granting legal assistance, i.e. assigning a German lawyer who would conduct the case on the grounds of the existing German regulations in this matter, was also submitted. Even though the European Court of Human Rights also declared inadmissible the application in the Gajic case in August 2007, it is important to exhaust all domestic legal remedies before the competent bodies in Germany, which would, in the future, allow the initiating of the procedure before other relevant international bodies.

On 3rd December 2007, the deadline for submitting property claims to the Kosovo Property Agency (KPA) expired.

Due to the fact that a number of internally displaced in Serbia have not been able to submit claims within the given deadline for justifiable reasons, on 4th December 2007 Praxis launched an appeal for extension of the deadline to the Special Representative of the UN Secretary-General for Kosovo, Mr Joachim Rücker.

Download: Appeal for Extension of Deadline for Submitting Property Claims to the Kosovo Property Agency

As a response to Praxis’ Appeal for Extension of Deadline for Submitting Property Claims to the Kosovo Property Agency, launched on 4th December 2007, Praxis received a letter from the Special Representative of the UN Secretary-General for Kosovo and Head of UNMIK, Mr Joachim Rücker on 18th January 2008.

In the letter Mr Rücker informed Praxis that, at the time, preparations were under way to convene a meeting of the Supervisory Board of the Kosovo Property Agency, consisting of 5 members, out of whom three are representatives of international community and two are Kosovo residents, who were in the process of being nominated by the Prime Minister of Kosovo. As Mr Rücker stated, once all necessary appointments were made following the formation of the Government of Kosovo, the Board would convene and the issue of a possible re-opening of the claim-intake considered, of which Praxis would be informed. 

Praxis held a presentation on property restitution in Kosovo at the two-day conference entitled “You are Displaced, Your Rights are Not: Conference on Sustainable Property Restitution and Solutions to Displacement in Kosovo during Transition”, held in Pristina on 26 and 27 November 2007. It was organized jointly by the OSCE Mission in Kosovo, MPDL and Kosovo Ministry of Environment and Spatial Planning. Property restitution, return and reintegration of internally displaced persons continue to be among the greatest human rights challenges in Kosovo and priority of local and international authority in Kosovo. The aim of the conference was to raise awareness among Kosovo institutions and civil society organizations about enormous challenges to be met in the property restitution and returns and reintegration processes, as well as to develop policy and legal recommendations to tackle those challenges.

Download: Final Property Restitution Conference Recommendations

In October 2007, on behalf of its clients, Praxis submitted complaints to the Human Rights Advisory Panel (HRAP) in Pristina in 7 cases in which the Housing and Property Claims Commission (HPCC) either brought final decisions upon reconsideration requests for property repossession in Kosovo to disadvantage of Praxis’ clients or brought positive decisions but it was impossible to execute the decisions through Kosovo Property Agency.

In the aforementioned 7 cases Praxis found that there had been major irregularities in the procedures and had documented evidence that there had been violation of human rights (the right to fair trial, the right to respect for private and family life, the right to an effective remedy and the right to peaceful enjoyment of possession). These violations referred to cases in which Housing and Property Directorate (HPD) claimed that Praxis’ clients had not delivered “verified evidence” that would support their claims, cases in which HPD claimed that there had been discrimination against members of ethnic communities other than Serbian, etc.

In May 2008, HRAP brought decisions in 5 of the above-mentioned cases in which it found the complaints admissible and sent the decisions to Praxis. In two remaining cases HRAP requested additional documentation.

Upon finding complaints admissible, HRAP should now examine the merits of the cases and request written observations from the parties. It may call a public hearing. The Panel will then deliberate and formulate a conclusion about whether there has been a violation of human rights by UNMIK. It may also make recommendations, in particular regarding the reparations to be offered to the complainant, which will be submitted to the Special Representative of the Secretary-General (SRSG). SRSG will decide whether and how to act on the findings and recommendations of the HRAP. The decisions and opinions of the HRAP, as well as the decisions of the SRSG will be made public.

Praxis will continue to represent the clients’ interest in these cases before the HRAP.

About Human Rights Advisory Panel

HRAP is an independent body established by the Special Representative of the Secretary-General (SRSG) through UNMIK Regulation 2006/12 in March 2006. HRAP has the jurisdiction throughout the entire territory of Kosovo to examine complaints related to alleged violation of human rights by UNMIK, which occurred not earlier than April 23rd, 2005 or arising from facts which occurred prior to this date, and in which all other available remedies for the alleged violation have been pursued.

More information about HRAP you can find here.

Kosovo Property Agency (KPA) does not allow the rights holder to be present during the forced eviction of the illegal occupant from his house, and does not vest his property in him by delivering the keys in front of the evicted house, but in the KPA office, and without ssuing a certificate confirming that the eviction had been performed and the property sealed.

The presence of the rights holder during the forced eviction and taking over of the keys on the spot is essential, since if absent, the rights holder will not enter into possession of his property in true sense of the word, he cannot be certain whether the illegal occupant had been truly evicted from his property, and does not have the opportunity to move into the house immediately and prevent re-occupation of his property.

KPA finds excuses for such practice in protection of security, even though the issue of security remains open even after the rights holder returns to his property.

The above-mentioned shortcomings and problems have been noticed in the case of Slavko Vulic. For this reason, Praxis sent an appeal for urgent action to the UNHCR and OSCE, requesting their representatives to be present during the forced eviction of the illegal occupant and vesting the property in Vulic. However, the Appeal was sent in vain. UNHCR Pristina
refused to be present during the eviction, while OSCE Mission in Kosovo did not even respond to it. On the other hand, the KPA does not even allow Vulic’s legal representative to be present during the forced eviction.

Such practice of the Kosovo Property Agency leaves space for manipulation and pressure. This is exactly what happened to Vulic, who is being pressured to give part of his property to the illegal occupant, so that a house could be built for the illegal occupant and his housing issue resolved. In return, Vulic was promised that the illegal occupant would be finally moved out of his house.

Download: An Appeal for Urgent Action

Download: Slavko Vulic Case

On 4th June 2010, the Human Rights Advisory Panel (HRAP) delivered to Praxis its opinion regarding the case of N.K, whom Praxis represented before this body. At the same time, it is the first opinion of the Commission in one of Praxis cases.

In the final decision of the Housing and Property Claims Commission (HPCC), N.K. was granted right to compensation for lost ownership right over the apartment the client had purchased before 1999. The opposite party in the procedure, who is the current occupant of the apartment, was granted the tenancy right (first lost due to alleged discrimination), as well as the right to purchase the apartment. Pursuant to UNMIK Regulation 2000/60, the Housing and Property Directorate (HPD) should determine the amount that the tenancy right holder should pay, and which the HPD should then pay to the former owner of the apartment, in this case N.K. However, a formula for calculating the compensation amount has not been determined up to the present moment. Thus, N.K. has been living without the apartment for 11 years, i.e. without adequate compensation for the lost ownership right.

On behalf of N.K, in September 2007 Praxis submitted a complaint to the HRAP against violations of rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, i.e. right to a fair hearing (Article 6 of the Convention), right to respect for private and family life (Article 8 of the Convention), right to effective remedy (Article 13 of the Convention) and right to peaceful enjoyment of possessions (Article 1 of the Protocol 1 of the Convention).

HRAP found that there were violations of Article 1 of the Convention and Article 1 of the Protocol 1 of the Convention and recommended to the UNMIK the following:

1. To urge the competent authorities in Kosovo to take all possible steps in order to ensure that administrative measures necessary for the execution of such HPCC decisions are adopted without delay (all decisions in which compensation had been granted, and which have not been executed yet);
2. To award adequate compensation to the complainant N.K. for non-pecuniary damage;
3. To take immediate and effective measures to implement the recommendations of the Panel and inform the complainant and the Panel about further developments in this case.

With regard to the opinion of HRAP, on 11 June 2010, the Special Representative of the UN Secretary-General (SRSG) gave its comments in relation to the case. SRSG stated that UNMIK would request the European Union Rule of Law Mission in Kosovo (EULEX), that had taken over from UNMIK the responsibilities in the area of justice in Kosovo, to liaise with relevant local Kosovo authorities in order to assure that all possible steps are taken to adopt administrative measures necessary for the execution of all HPCC decisions without delay. In relation to payment of compensation for non-pecuniary damage, the SRSG stated that the current UN General Assembly resolutions do not allow the UN Organization or its Missions to pay compensation other than for material damage or physical harm. UNMIK would, however, continue to address the issue with the UN Headquarters aiming at drawing attention of the General Assembly to the need for a review of its currently established rules for compensation. SRSG also stated that UNMIK would inform the complainant and the HRAP about further developments in this matter.

The case of N.K. is only one of numerous examples of inefficiency of institutions and mechanisms for protection of property rights of members of national minorities in Kosovo.
 

Refugee Legal Clinic was initiated by UNHCR and Law Faculty at the University of Belgrade in June 2006. The main idea of this project is to promote an innovative teaching model for law students and, at the same time, develop an important part of the future system of free legal aid for refugees and asylum seekers in Serbia.

The Clinic started working in October 2006. Theoretical part of the project is conducted at the Law Faculty and the students have the opportunity to learn thoroughly about the fundamental international refugee protection, role of the state in that system, as well as about the mandate of UNHCR. An integral part of the theoretical training is to inform the students about the basic principles of work with refugees and asylum seekers, as well as with the procedure of establishing refugee status.

At the UNHCR’s initiative, since February 2007 the law students have been enabled to get acquainted with the legal problems of the refugees and internally displaced persons through practical work in Praxis. Practical part of the project includes both office and field work. Field work involves visits to the displaced accommodated in collective centres, Roma settlements and private accommodation.

Acquiring practical skills and knowledge enables the trainees of the Refugee Legal Clinic to be actively involved in providing the displaced with legal assistance, under surveillance of UNHCR and Praxis’ lawyers dealing with legal protection.

“What was born wretched gets no improvement over time.”
Valtazar Bogisic

The Refugee Law (hereinafter: the Law), as well as a draft Law on Amendments to the Refugee Law (the Amendments), contain a number of essential flaws, rendering inappropriate the attempted link between the title(s) and the regulated matter, and making them incompatible with the entire domestic and international legislation. 

Contrary to the 1951 Convention Relating to the Status of Refugees with the 1967 Protocol on the Status of Refugees, binding for Serbia, the Article 1 of the Amendments (to the same Article of the Law) maintains the incomplete definition of the term “refugee”, with additional deficient alterations. The target group is still defined in a slightly discriminatory manner (“Serbs and citizens of other ethnicities”) as a certain category within the entire refugee population (referring to the internationally recognized meaning of that term), the category that emerged from the precisely defined time and geographical area (“period 1991-1998… from the former Yugoslav republics”). This kind of temporal and geographical limitation in determining the refugee status was eliminated by the mentioned Protocol, and it is absolutely unacceptable as a criterion for defining a refugee in the legislations of the Protocol signatories.

Despite the inappropriately chosen name of the Refugee Law, the legislator has undoubtedly intended to regulate the issue of the so-called “post-Dayton” refugees promptly and as efficiently as possible, by adopting such a lex specialis. However, we can not ignore the fact that these parts of the Law and the draft Amendments, as domestic legislation, contravene the ratified international agreements and the clear obligation of Serbia to implement them. In cases of collision, the applicable international law prevails over domestic law, so that the effect of the most important part of the Law and the Amendments, definition of the target group, is at least theoretically predisposed to remain without effect. The term “refugee”, in present circumstances, needs to be consistently defined according to the accepted international standards.

The Amendments seem to be significantly more restrictive in the parts related to the access to rights for refugees, i. e. duties/obligations of the competent bodies that ought to make those rights available. For example, the Article 6 of the Amendments (to the Article 8 of the Law) introduces the optional approach to the provision of temporary accommodation and aid for the refugees in collective centers. Introducing such a loose structure as “may be provided” when defining the activities performed by the competent state bodies with the aim to assist refugees, opens the possibility of official and lawful neglect of a significant number of vulnerable persons. Furthermore, the Article 14 of the Amendments (to the Article 16 of the Law) introduces more restrictive approach to providing financial and other forms of aid to refugees by reducing or terminating the assistance if one of the conditions for assisting a refugee and/or one of his/her family members is not fulfilled. While the suggested solution has somewhat legitimate aim, the problem is a wide definition of a refugee’s household member. Having in mind the existential importance of the assistance, the formal requirements related to the wide family members, in practice, could result in negative consequences. Although the restrictive approach may be well-founded, it is necessary to reduce a number of persons directly influencing the provision of assistance, limiting them only to the refugee’s nucleus family members.

The draft Amendments have not tackled the important Article 18 of the Law related to the termination of the rights determined by the Law (refugee status), although it contravenes entirely to the clear provisions of the Convention and that major problems have been identified during its implementation. This refers, inter alia, to the practice of patterned termination of the refugee status (both before first and second instances) in the course of 2005, based on unjustified allegations that a refugee has not reported certain changes of the status significantly influencing the exercising of the rights; for example, alleging that a person has returned (even without the intention of staying permanently) to the country of origin. Bearing in mind the shortcomings of this and other related Articles, it would be necessary to establish unambiguous criteria for the refugee status termination in accordance with the Convention and without the possibility of unlimited discretion right.

The Article 15 of the Amendments (to the Article 19 of the Law) does not coincide with the fundamental purpose of the refugee law. This Article stipulates the regulation of housing needs for “refugee(s) and their household members who have acquired the citizenship of the Republic of Serbia for the purpose of their integration [italic added]”. Given that the refugee status, in accordance with the existing principles of the refugee law, ceases by acquiring new citizenship, the sustainability of dual status (refugees with citizenship) and preferential treatment of a certain group of citizens of the Republic of Serbia raise doubts. Establishing prima facie general presumption on the need of positive discrimination for the entire category of citizens of Serbia and/or their family members in relation to other socially vulnerable citizens might become risky in practice. The same objective could be reached by adopting a separate law with more appropriate contents and title. Such a law could offer to refugees more favourable solution in respect to “the immovable property gained with the purpose of solving housing needs of refugees from… donations”, unlike the present, inadequately formulated Article 16 of the Amendments stipulating the uncompromising primacy of the state ownership of the property and the forms of further use/transfer of the right.

The Amendments do not concur with the purpose of the original Law and maintain its shortcomings. Therefore, the idea of “amending” the out-of-date Refugee Law should be discarded, thus avoiding the waste of time and resources. Adopting new laws that would adequately regulate the issues of concern, especially the detailed Law on Asylum and another law on social housing, would be the only reasonable approach to the whole matter and the ground for its successful regulation.

In June 2006, UNHCR and Law Faculty at the University of Belgrade initiated the Refugee Legal Clinic with the aim to promote an innovative teaching model for law students and, at the same time, develop an important part of the future system of free legal aid for refugees and asylum seekers in Serbia.

Theoretical part of the project was conducted at the Law Faculty and the students had the opportunity to learn thoroughly about the fundamental international refugee protection, the basic principles of work with refugees and asylum seekers, the procedure of establishing the refugee status, as well as about the relevant role of the state.

As for the practical part of the project, from February 2007 the students have been involved in practical work in the non-governmental organization Praxis. In the office, the students learnt about the legal problems the refugees and internally displaced persons face, and also took part in the work of the Praxis’ legal mobile teams that visit the displaced in the collective centres and illegal Roma settlements throughout Serbia.

Upon successfully completed practice, on 27th June 2007 the students were awarded the certificates by Praxis. Since this project proved interesting and useful for the students who attended the Refugee Legal Clinic, Praxis will continue the cooperation with the UNHCR and the Law Faculty at the University of Belgrade so that the future generations also have the opportunity to get acquainted with the practical work with the displaced population.