Tenth Assessment of the Situation of Ethnic Minorities in Kosovo
(Period covering May 2002 to December 2002)
SECTION 4: HOUSING AND PROPERTY RIGHTS
As one of the prerequisites for a sustainable return of minorities to Kosovo, members of these communities must be able to realise their property rights. The effective realisation of property rights requires positive actions by the State (in Kosovo, such positive actions fall within the obligation of UNMIK and its relevant bodies, as well as of the PISG and its sub-entities), which should therefore have implications both at political and budgetary level. Although insufficient realisation of property rights is triggered by issues related to access to property or to the claims mechanisms thereof, authorities have a positive obligation to ensure such access both by legislative reform and by executive/enforcement actions. "Access" can be defined as encompassing three general areas: awareness of legal rights, physical access to relevant adjudicative and executive bodies, and, finally, once physical access is gained, the ability of the appropriate bodies to provide effective realisation of these rights.
I. HOUSING AND PROPERTY DIRECTORATE (HPD) AND THE HOUSING AND PROPERTY CLAIMS COMMISSION (HPCC)
One of the key obstacles to the return process and the protection of minorities is access to their residential property, or their "home". The Housing and Property Claims Commission (HPCC) and Directorate (HPD) were established to facilitate the restoration and the confirmation of residential property rights, which were either lost through discrimination or force or remained unclear due to informal transactions. Under their mandate, the HPD and HPCC possess the authority to evict illegal occupants and restore property to the rightful holders (whether owners, possessors, or occupancy right holders).
HPD's and HPCC's mandate in relation to illegal occupation is particularly critical to the sustainable return of minorities. Within urban areas especially, a significant proportion of displaced minorities' properties, both houses and apartments, are illegally occupied in part preventing their return. A number of these illegal occupants have not vacated the property even though they have received reconstruction assistance. With their mandate, HPD and HPCC play a crucial role in facilitating the return of minority community members to their homes. Thus, as many minorities suffer from illegal occupation of their residential properties, awareness of, physical accessibility to, and effective operation of the HPD and HPCC are key elements for the effective protection of minorities and their property rights as well as to facilitate their sustainable return.
The OSCE acknowledges the progress in the HPD/HPCC activities since the last Assessment, both in expanding operations and allocating appropriate resources. Despite the clear progress, which has been mostly apparent under the new management of the HPD/HPCC, minority communities' level of awareness of and physical access to the HPD/HPCC mechanism was still inconsistent and in some aspects inadequate. For example, the access of IDPs living outside Kosovo appeared to improve since the last Assessment. A satellite field office and mobile teams were established temporarily in Montenegro to collect claims, and field offices already operating in Belgrade, Ni, and Kraljevo in Serbia proper remained open until December 2002. HPD also undertook a public awareness campaign to inform the public of the extension of the deadline to file claims. Claimants outside Kosovo lodged 15,615 claims (66% of the total claims filed), indicating that those internally displaced outside Kosovo enjoyed improved access and awareness of the mechanism since the last Assessment. Such was the case in Montenegro, where 1,692 of these claims were filed within the last six months of 2002 after operations were established there. Yet, resource limitations may halt this progress in Montenegro, and elsewhere. According to the HPD Head of Office in Pejë/Pec (which is also responsible for Montenegro), the HPD/HPCC presence in Montenegro, while budgeted for, is not currently operational despite potentially 6,000 more claimants to be serviced. In addition, the HPD has yet to open an office in fYROM to collect claims from predominantly Kosovo RAE refugees. Thus, while improvements have been made in physical access and awareness of those displaced outside Kosovo, lack of human and physical resources for the HPD still hamper their effective realisation of residential property rights.
Inside Kosovo, the level of awareness of and physical access of minority communities to the HPD/HPCC mechanism did not appear to improve significantly or consistently since the last Assessment. The overall claim intake inside Kosovo represents only 34% (8,053 claims) of the total claims received by HPD/HPCC, indicating that the elements of access remain inadequate and prevent the effective realisation of minority communities', as well as the majority community's, property rights. As for the claims intake mechanisms outside Kosovo, human and physical resources of the HPD/HPCC appears to influence the intake results inside Kosovo as well. Until the very recent opening of the HPD Office in Prizren, the Pejë/Pec HPD regional office was responsible for operations in that region as well as within Pejë/Pec region and Montenegro. While the office was provided more vehicles, its staff was cut in half and its Head of Office changed three times since the last Assessment, thereby hampering continuous and effective operations. Such circumstances prevented both the provisioning of HPD mobile teams for and the implementation of an awareness-raising campaign to minority communities.
A Kosovo-wide awareness-raising campaign conducted by the OSCE exposed further aspects influencing levels of awareness of HPD/HPCC mechanisms. Undertaken between 20 and 26 November 2002, the campaign briefed over 175 representatives of the Kosovo RAE, Kosovo Serb and Kosovo Bosniak communities in 15 locations throughout Kosovo on the mandate and function of the HPD/HPCC, as well as on the residential property rights of their community members. While it complemented an extensive HPD public information campaign informing the public of the extension of the deadline to file claims, confusion remained amongst the participants regarding who could file a claim with HPD and where claims could be filed. In addition, the Kosovo RAE community leaders currently residing in collective centres in Leposavic/Leposaviq and Zitkovac/Zitkovc (Zvecan/Zveçan) showed a lack of interest in the HPD/HPCC claims process as the overwhelming majority of their houses (situated in the so-called "Roma Mahala" in Mitrovicë/Mitrovica) had been destroyed. Still, in Mitrovicë/Mitrovica, the briefings did expose the lack of access to HPD of the Kosovo RAE community even in this well-resourced region, and the HPD Head of Office in Mitrovicë/Mitrovica agreed to implement a mobile team operation covering all RAE community sites in his region.
With regard to the effectiveness of the HPD and HPCC in processing claims, the expedience of the process and the enforcement of decisions remain inadequate. Of the total 23,668 claims, only 1,856 claims (8 % of the total claims intake) have been resolved by either HPD or HPCC, and only 621 eviction decisions were enforced against illegal occupants (227 HPD administrative evictions, 254 HPCC-enforced eviction decisions, and 140 voluntary vacations of the illegally occupied property ).
One aspect of the HPD's operations with a significant impact on the return of minorities is the status of the 4,275 cases of vacant or illegal property, which are still pending for administration by the HPD. Currently, only 2,268 properties are under the HPD administration, and of these, only 771 properties are allocated to displaced or vulnerable families under its temporary humanitarian permit scheme.
Overall, despite progress since the last Assessment, access to and operations of the HPD and HPCC remain inadequate and insufficient to ensure the effective protection of minority's residential property rights and facilitate their return.
Yet, it should be noted that not only do the difficulties with the HPD and HPCC mechanisms create problems for those wishing to return to illegally occupied property. Post-eviction damage and destruction of property as well as harassment are also of concern. Due to a time-lag between when an HPD/CC eviction occurs and the physical repossession of the property by the property right holder, looting and destruction of properties have occurred. In addition, evicted illegal occupants have harassed the returned property right holder. In May 2002 in Vushtrri/Vucitrn, majority community members demanded money for 'protection' while evicted illegal occupants demanded compensation from the returned property right holder for improvements which they had made to the returned properties. Such phenomena highlight the need for increased co-ordination between HPD and HPCC and the police regarding evictions, as well as increased diligence by law enforcement authorities.
Since the last Assessment, overall access to the cadastre has improved for minority communities. In most areas, new cadastre documents are issued in three languages and the majority of senior Municipal Cadastre Office (MCO) staff is able to communicate in non-Albanian language (Serbo-Croatian or Turkish). Minority communities' physical access to the MCOs in Gjilan/Gnjilane region has reportedly improved, with the MCO in Viti/Vitina hiring a Kosovo Serb employee and the MCO in Kamenicë/Kamenica having a Kosovo Serb director. In Prizren region, Kosovo RAE community members in Rahovec/Orahovac reported enjoying free access to that MCO, while in Mitrovicë/Mitrovica municipality, Kosovo Serb and RAE individuals can access the MCO through a satellite office in the northern part of the city.
Yet, incidents continue to occur where minorities have encountered problems gaining physical access to the cadastre. For example, in Pejë/Pec municipality, the Kosovo RAE community and international organisations acting on their behalf encountered problems in obtaining the correct cadastre maps for the Kosovo RAE area of "Kristali". A similar problem was encountered when cadastre maps were sought for the Kosovo Serb potential returns sites of Sigë/Siga and Brestovik/Brestovik. Minority community members also experienced difficulties in or denial of access to MCOs in multiethnic municipalities, such as Lipjan/Lipljan and Fushë Kosovë/Kosovo Polje.
These problems of physical access are compounded by the continued lack of a fully functioning and complete cadastre, which affects all communities in Kosovo. Though a regulation to establish a fully functional immovable property rights register has been promulgated recently, it cannot be implemented until complementary legislation is passed and the cadastre itself is functional. For instance, some cadastre data for Kosovo remains in Serbia proper. Negotiations between UNMIK, the Co-ordination Centre for Kosovo and Metohija (CCK), and the Governments of Serbia and Montenegro and of the Republic of Serbia are currently ongoing to establish technical co-operation in order to reconstruct the cadastre system in Kosovo, specifically on how to transfer cadastre data for the territory of Kosovo. In addition, as it currently stands, MCOs do not store the same types of documents and records, meaning that they may not have records required to establish property rights. Another problem exposed since the last Assessment is that of the authenticity of cadastre documents and the reliability of cadastre records. The September 2002 arrest of two senior officials of the Prishtinë/Pritina MCO for alleged corruption raised doubts about the veracity of property transactions registered in the municipality within the past three years.
III. ILLEGAL CONSTRUCTION AND USE OF LAND
As noted in the previous Assessment, minorities' lack of freedom of movement and exposure to discrimination makes them particularly vulnerable to the problem of illegal construction and use of land, or illegal interference with their property rights. Minorities are especially vulnerable to illegal use of agricultural land. Such illegal use of land obstructs the ability of these property right holders to return in a sustainable fashion. Since the last Assessment, little progress has been made in remedying the identified gaps in the legal framework, such as the inadequate administrative appeals mechanisms at the municipal and central level and the lack of effective judicial remedies to such interference. Nor has notable progress been observed in preventing the illegal use of agricultural land.
The effect of these gaps was seen in the Pejë/Pec municipality, when the Kosovo RAE community displaced from the "Kristali" area of the Pejë/Pec city attempted to access and reconstruct on their land. Not only were Kosovo RAE property right holders denied construction permits to build on their land, but Kosovo Albanian property right holders were granted construction permits in the same area and illegal construction by the majority community, known to the municipality, continued unregulated. The Kosovo RAE property right holders were denied construction permits by the municipality based on the zoning of the area, while the majority community applicants were granted construction permits within the same zoning. The municipality, based on the zoning designation, refused to consider appeals to its decision. Subsequently, based on a September 2000 Municipal Council decision changing the zoning designation, the municipality, through the UN Municipal Administrator, promised remedial action. To date, however, over 100-inventoried illegal constructions remain unregulated. As this case illustrates, the continued ineffectiveness of administrative remedies negatively affects the ability of minority communities to access their property rights and thus exercise their right to return.
IV. UNMIK REGULATION 2001/17 ON THE REGISTRATION OF CONTRACTS FOR THE SALE OF REAL PROPERTY IN SPECIFIC GEOGRAPHICAL AREAS OF KOSOVO (AND ADMINISTRATIVE DIRECTIONS 2001/16 AND 2002/4)
The systematic sale of real estate belonging to minorities, be it voluntary or under threat or pressure, has a potential detrimental impact on the living conditions of the respective minority communities and, indirectly, on the right of refugees and displaced persons to return to those communities. As response to this phenomenon, UNMIK enacted Regulation 2001/17. Before and after its promulgation, the Regulation has aroused criticism and speculation. It was feared that it would deter registration of property and therefore lead to clandestine property transactions circumventing the official (court) system. Moreover, it raised concern that the imposed restriction was a violation of the right to freely dispose of ones property, and also that it was discriminatory.
The Regulation, however, does not prohibit sales in general. It orders that such sales be reviewed by another institution outside the courts (namely the UNMA) to determine whether the contract was fairly concluded and whether the sale reflects a systematic buy-out of minority-owned property. In this respect, the Regulation does not intend to serve as an instrument to restrict sale of real property owned by minorities, but, on the contrary, as a necessary tool to protect the legitimate interests of minorities.
However, the need to register a sales contract with the UNMA may generate an unnecessary and burdensome interference with property rights under the ECHR. The European Court found a national expropriation law to be inflexible, stating that the complainants were left "in uncertainty as to the fate of their properties", as the respective law lacked a remedy against the prolonged expropriation procedure and also did not envisage for the possibility to claim compensation. These gaps in the national law were found to subject the applicants to "an individual and excessive burden". Along the line of the European Court's arguments, the OSCE finds that the Regulation, despite an established reconsideration and appeal process, places an excessive burden on the minority property rights holders, while also lacking any possibility to compensate these individuals for the interference with their rights. Such a burden appears to be individual and disproportionate when balanced with the legitimate aim of the Regulation, and the following case study is illustrative in this regard.
The case was initiated on 11 March 2002 by two individuals who requested the UNMA to register a contract on sale in Lipjan/Lipljan. On 28 March 2002, the UNMA refused the registration of the contract on security grounds: the transaction would endanger the freedom of movement of Kosovo Serbs in Lipjan/Lipljan. On 5 April 2002, the parties made a request for reconsideration, with the Kosovo Serb prospective seller providing medical reasons for the transaction. He and his wife were old and sick (especially his wife) and he was not able to take care of her anymore. He wanted to leave and join his only son in Serbia proper. They did not have enough money to pay hospital bills and medicine, so the money from the sale was necessary to cover health expenses. On 16 April 2002, although recognising the difficulties of the Kosovo Serb couple, the UNMA rejected the request for reconsideration basing the decision on the security-related opinion of KFOR. On 8 May 2002, the Kosovo Albanian appealed the UNMA's decision to the panel, arguing that the two parties of the transaction had known each other for 30 years and had always had a good relationship, and that many Kosovo Albanians already inhabited the neighborhood. The Kosovo Serb stated to the court panel that the security assessment made in this case was inaccurate, as his property was not located on the road that was used by other members of the Kosovo Serb Community when moving from one part of the municipality to the other. However, the court panel followed the arguments of the UNMA, namely that it was "deemed crucial to preserve the critical street [where the house was located] as a street predominantly inhabited by Serbs to secure the safe access for Serbs from that neighbourhood and the Serbs living further south to the Serb quarter in the northern part of town." On 5 July 2002, the panel rejected the appeal.
The OSCE has documented cases indicating that the Regulation does not serve the purpose originally envisaged. UNMIK representatives of the Prishtinë/Pritina, Obiliq/Obilic and Fushë Kosovë/Kosovo Polje municipalities reported also that the Regulation has no significant impact on sales, since all the critical sales took place before the entry into force of the Regulation. For example, in the village of Devet Jugovica/Nënte Jugoviq, 50% of the residential property had already been sold before the enactment the Regulation. In Fushë Kosovë/Kosovo Polje and Obiliq/Obilic, UNHCR statistics related to the departure of Kosovo Serbs show that more properties were exchanged than contracts submitted for registration, thus indicating the use of informal transactions.
An additional concern related to the Regulation stems from its implementation, and, in particular, from the rejections by the SRSG of requests filed by UNMAs from different municipalities in Kosovo to designate additional Specific Geographic Areas (SGA). Several municipalities without SGAs have submitted requests to the SRSG to designate SGAs in their area of responsibility. For instance the municipality of Ferizaj/Uroevac has no SGAs. Since August 2001, the municipality submitted three requests to the SRSG. However, all requests have been declined without explanation despite a significant amount of inter-ethnic property sales that occurred in the Ferizaj/Uroevac municipality. A proposal to include Prishtinë/Pritina city under SGA has been submitted three times but all requests have been rejected. The Prizren municipality submitted in September 2001 a proposal but this request was declined as well.
Another phenomenon that is impeding the effective implementation of the Regulation is the lack of available resources for the UNMAs to monitor transactions and to review suspect sales properly. UNMIK's downsizing has affected the number and kind of employees able to effectively and actively conduct reviews and follow up investigations on rejected property contracts. Moreover, the OSCE is concerned with the poor understanding of the Regulation both by the public and the municipality officials. It is imperative to ensure that the courts, local authorities and the UNMA understand the Regulation fully.
Although agricultural land is not included in the scope of the Regulation, patterns of inter-ethnic sales of agricultural land gave further reasons for concern. The OSCE monitored that not only do such land sales cut off minority farmers from accessing valuable land for agriculture exploitation, but they can also effectively isolate minority communities, as such lands are usually located along the main travel routes in and out of minority communities. As current conditions indicate, some strategic purchasing of minority agricultural lands has already occurred in several areas, suggesting the same pattern and practices that occurred with residential properties. It is noteworthy that agricultural land is an essential economic indicator for the sustainable return of many minority communities, thus scrutiny over inter-ethnic transactions involving such land is of significant importance.
One development in addressing the drawbacks of the Regulation has been the establishment of an ABC Working Group to review it. It has been concluded that there is a need to increase the number of SGAs particularly in urban areas where minority flight has occurred and the returns process has not yet begun. Areas such as Prishtinë/Pritina town, which contain a large number of illegally occupied minority residences, present a hostile environment for would-be returnees. Such circumstances create considerable pressure on minority property owners to sell rather than to wait for the HPD process to resolve possession or ownership disputes. The working group also acknowledged that it is vital, in order to ensure proper implementation of the Regulation, that the UNMAs have the ability to monitor, investigate, and follow up on suspect property sales under review or appeal. Therefore, and in light of UNMIK's downsizing, the capabilities of UNMAs to fulfil their responsibilities under this Regulation must not be compromised. The working group also recommended changes that would afford an amendment of the Regulation. This includes a recommendation of an amendment to extend coverage to agricultural land. Such an amendment would serve the same public interests that necessitated the review of residential properties, namely the protection of all communities' property rights, regardless of ethnicity, from coercive or irregular sales tactics.
V. RECONSTRUCTION AND RETURN
The right of the refugees and internally displaced minorities to return and exercise their property rights often depends upon the apportionment of reconstruction assistance. Many minorities' properties have been destroyed both in urban and rural areas either during the conflict or immediately following it, and in some instances destruction has continued throughout the post-conflict period. Indeed, the level of such destruction in villages can be persuasively argued to be inversely linked to the presence of a resident minority community.
As previous Assessments have highlighted, minorities, though generally well informed about the existence of reconstruction assistance and the mechanisms through which to obtain it, have encountered difficulties in obtaining it. The actual proportion of houses reconstructed within the minority communities remains far less than that of the majority communities, who normally possess better access to and greater financial resources. For instance, throughout the Mitrovicë/Mitrovica region, the overwhelming majority of houses reconstructed were not those belonging to minority beneficiaries. In Deçan/Decani, prior to this past reconstruction season, 55% of the majority population destroyed houses have been rebuilt compared to 6-7% of those belonging to minority population.
Minority Access to Reconstruction Assistance
Since the last Assessment, though, minorities access to the reconstruction process appeared to improve. Overall, within the Municipal Housing Committees (MHCs), which approve the distribution of the majority of reconstruction assistance, minority communities' interests appear to more consistently represented by the presence of at least the UNMIK LCO or Municipal Communities Officer as a voting member. Three notable exceptions were the MHCs in Fushë Kosovë/Kosovo Polje, Obiliq/Obilic, and Ferizaj/Uroevac, where no representation of minority communities' interests was ensured. The invariable result of this lack of representation was a diminished allocation of assistance to minority communities. In Ferizaj/Uroevac, the only minorities who received assistance were three (3) Kosovo Ashkaelis (less than a 5% allocation to minorities). Sometimes, though, even when representation was present, minorities did not receive assistance. In Gllogovc/Glogovac, no minorities benefited from reconstruction assistance.
Furthermore, much of the progress in reconstruction assistance to minorities since the last Assessment can be attributed to international, not local, initiatives. For example, as recommended in the last Assessment, the EAR required that 10% of its donated reconstruction assistance be allocated to minority beneficiaries. It also provided an extra fund for minorities. These initiatives forced many MHCs to select minority beneficiaries they might not have otherwise considered, either due to political considerations or vulnerability thresholds. The LCOs' active advocacy of minority beneficiaries also helped in the selection process. Another example is the Prizren region, where many minority members were unaware that they could access reconstruction assistance. Minorities in Prizren benefited from reconstruction assistance mainly through a Swiss Caritas programme, which reconstructed 57 houses for Kosovo Roma in the municipality.
Concerns raised in the last Assessment still remain that minority access to reconstruction assistance is also hindered at times by the insufficient co-operation between the implementing international NGO and municipal authorities such as the MHC. For example, in the Pejë/Pec region, the EAR implementing partner CORDAID at one point appeared to be disqualifying beneficiaries due to lack of cadastre proofs, though alternative proofs are acceptable under the UNMIK Housing Reconstruction Guidelines 2002 (the Guidelines). CORDAID also resisted providing assistance to Kosovo RAE families from the Kristali area of the Pejë/Pec municipality based not on vulnerability issues, but on the assertion that the property status of the families was too vague. Despite five beneficiaries from the area, who possessed property documentation, being approved, CORDAID remained resistant and tried to ignore the decision citing unsubstantiated property and security concerns. The two excluded cases were finally included in the programme.
Minority Access and the Application of UNMIK Housing Reconstruction Guidelines
In addition to the obstacles highlighted in the last Assessment, minorities attempting to obtain reconstruction assistance and the protection of their property rights encountered obstacles due to the lack of legal weight given to the Guidelines governing the reconstruction process. As written, the Guidelines provide a comprehensive system to protect rights to property, due process, and to return to one's home, but do not possess any legally binding authority.
The system was constructed around a single "recommending, co-ordinating, and approving" body within the municipality, in most cases the MHC. As established in the Guidelines, the MHC's membership includes the relevant Directorates of the municipality, such as Urbanism and Cadastre, required for selecting beneficiaries and implementing the reconstruction itself. The Guidelines outline the procedures and structures through which the MHC, as the central body, ensures that basic vulnerability criteria, as well as the procedural, legal, and technical requirements for reconstruction are met. For example, the Guidelines require the MHC, through a Verification Unit and the MCO, to "verify and ensure" that the selected beneficiaries have legal access to the targeted property. Yet, property rights only are investigated once the vulnerability of the beneficiary is established and the MHC approves the beneficiary as eligible to receive reconstruction aid. Such measures promote property rights and the right to return to one's home. The Guidelines also provide mechanisms to prevent corruption. Not only can the UNMA intervene when s/he deems it necessary, but also the procedures have checks and balances, such as the MHC Verification Unit described above. In addition, the Guidelines require three different verification processes when compiling the final beneficiary list. Appeals mechanisms, protecting rights of due process, also exist. For instance, once the final list is posted, complaints regarding the ineligibility of a beneficiary or appeals to be included as a beneficiary can be lodged and must be responded to. In addition, the Guidelines efficiently promote the right to return to one's home by rejecting any 'secondary displacement', including transfers of a house from rural to urban areas. The only 'displacement' permitted when receiving reconstruction aid is within the same village/community. Moreover, the procedures mandate that those displaced either within or outside Kosovo be equally considered for reconstruction aid if they express the desire to return to their place of origin. Selection is to be based purely upon vulnerability.
When the mechanisms outlined in the Guidelines were utilised, they effectively promoted the right to return to one's home and protected property rights and rights of due process, as well as preventing corruption for all communities because of the clearly defined procedures and structures they established. Still, without an oversight or monitoring mechanism, the potential for misuse or misallocation of reconstruction assistance increases. In Pejë/Pec, where 2002 funding was temporarily withheld due to allegations of corruption and favouritism during the 2001 programme, the UNMIK Municipal Project Officer, who sat on the MHC, indicated to the OSCE that attempts were made again, but thwarted, to include "politically-accepted" beneficiaries.
When the Guidelines are not utilised, rights of minorities to property and due process, as well as the right to return to their home, were jeopardised or even violated, especially in cases of organised returns or minority-targeted projects. In both the Mitrovicë/Mitrovica and Pejë/Pec regions, by-passing of both the MHC and the Guidelines resulted in such negative inferences. In the Pejë/Pec region, this circumvention resulted in a number of property concerns turning into violations of applicable law and international human rights standards during the implementation of the organised return project for Biqë/Bica and Grapc/Grabac in the Klinë/Klina municipality. As allowed under the Guidelines, the UNMIK Regional Administration decided to utilise a returns and reconciliation structure unique to the region, the Returns Implementation Group (RIG). Established as a subsidiary of the Regional Working Group (RWG), the RIG inherited the implementing function of a Municipal Working Group (MWG) , in order to enable the local political aspects of the returns and reconciliation process to be separated from the more technical issues of implementation. A RIG was to be convened for each municipality involved in an organised return project and established five (5) task forces covering technical topics, including one on Reconstruction and Balancing Projects. The incoherence of this structure when implemented precluded the efficient resolution of property issues affecting the return process.
In practice, the lack of definition of the mandate of the RIG and its task forces prevented the establishment of mechanisms to protect the rights of potential beneficiaries, such as those established in the Guidelines, and led to attempts to circumvent the structure when property concerns arose in the Klinë/Klina return project. The framework set up by the RIG failed to ensure property rights confirmation prior to construction, to avoid construction on other people's land or without proper permits, and it lacked an effective institutional remedy. Moreover, it resulted in illegal construction on municipal land, on socially-owned land, and on other people's land as well as construction of all 41 houses by the implementing partner Technisches Hilfswerk (THW) without the required municipally-issued permits. Such situations violate UNMIK Regulations 2000/45, 2000/53, 2002/12, the Law on Basic Property Relations, as well as international standards regarding property and due process rights. To date, these violations have not been remedied despite repeated appeals to the UNMIK Regional Administration.
In Mitrovicë/Mitrovica, the lack of an effective central system for analysing property or other return information, such as those provided for in the Guidelines, inhibits the Kosovo Roma displaced from the "Roma Mahala" from receiving reconstruction assistance and exercising their property rights and right to return to their homes. The Kosovo Roma community in the Roma Mahala were forcibly expelled and their homes looted and burned by Kosovo Albanians in June 1999. While attempts have been made to return and reconstruct some homes, the Roma Mahala still remains the largest area of destroyed buildings in Kosovo, with over 650 destroyed houses still remaining.
Currently, only six (6) beneficiaries out of 645 potential beneficiaries living in northern Kosovo RAE camps have been identified by the Local Working Group (LWG) as possessing the appropriate documentation of property rights to receive the reconstruction aid required for them to exercise their right to return. The UNMA's explanation for such dismal figures is the lack of potential beneficiaries from the area possessing adequate proof of property rights and expressing the desire to return. The cadastre, located in Krusevac, Serbia proper, lists 354 properties in the Mahala. While only twenty-six (26) families of those on the cadastre list have been identified as residing in Kosovo or Serbia and Montenegro, efforts are being made to locate those property right holders displaced elsewhere, though these efforts have yet to yield results. Equally troubling, 80 families residing in the camps in northern Kosovo apparently have expressed their will to return and recover their property. While they may not possess cadastre documents, the documents they do possess may constitute adequate proof of property rights to qualify for reconstruction aid through the procedures outlined in the Guidelines. This avenue, however, appears not to have been considered or discussed within the LWG. Various options on how to approach the situation of the Mahala, though, have been discussed at length in the LWG, including the plans of the municipality for possible secondary displacement. These discussions are still ongoing. Secondary displacement is contrary both to the Guidelines and the UNMIK policy on sustainable returns. While precipitated by an articulated and underlying lack of political will, the property-return situation of the Roma Mahala confirms the deleterious effect of the weak legal status of the Guidelines on the minorities' access to their property rights as well as the right to return to one's home.
Within the returns and reconstruction process, the protection of the rights of those wishing to return to their home was dependent upon the presence of appropriate mechanisms, as provided in the Guidelines, to protect these rights, as well as well-managed and coherent structures to utilise these mechanisms. Such a dynamic is evidenced by a situation which arose in Fushë Kosovë/Kosovo Polje. The NGO Erikshjälpen wanted to provide reconstruction assistance to Kosovo Serbs. They proposed the project to the MWG, which rejected it on the grounds that security condition required for sustainable return were not present. Erikshjälpen also approached the MHC, which approved the reconstruction assistance only taking into account socio-economic vulnerability and without taking into consideration security considerations. Regardless of vulnerability or availability, due to the security situation, return and reconstruction was not feasible. The MHC body did not necessarily have the mechanisms to fully evaluate if the situation was appropriate for reconstruction, while the MWG had the mechanisms to do so. Thus, as seen, the presence of a coherent structure with established and comprehensive mechanisms to protect the right of returnees does not exist consistently throughout Kosovo.
VI. NEW STRUCTURES FOR RETURN
Such coherence and regularisation was being brought to the returns process during the reporting period. Previously, the co-ordination of returns projects and returns issues on the local, municipal and regional levels varied widely. In some cases the Local Working Groups (LWGs) or task forces (TFs) were established for particular return projects, but most included no local officials or representatives of relevant groups. To streamline and enhance co-ordination in return issues, UNMIK established municipal (MWGs) and regional working groups (RWGs) on return during the reporting period, initially to be chaired by UNHCR, but handed over to UNMIK in June 2002.
These Working Groups were established in all five regions by the end of 2002, although most had only met a few times. In some cases, their establishment was delayed by political developments: in Deçan/Decani for instance, the arrests of former KLA members mid-August provoked a deterioration of the political climate. By the end of the reporting period, there were working groups in almost all municipalities in Kosovo. However, there was no MWG in Podujevë/Podujevo, Prishtinë/Pritina region, or in Malishevë/Malievo, Prizren region, where resistance to returns is particularly strong. In addition, Dragash/Draga in Prizren region also lacks an MWG, with the municipal leaders reasoning that there is no need of such a working group since the municipality continues to experience more departures than returns, mainly because of the dire economic situation.
Still, the establishment of MWGs or RWGs does not necessarily reflect a commitment to return in the municipalities and regions concerned. This is clearly indicated in the meetings of the MWGs in Mitrovicë/Mitrovica region, where with exception of Mitrovicë/Mitrovica and Vushtrri/Vucitrn the discussions focus on returns of IDPs in the municipality concerned to their place of origin in other municipalities, rather than returns to their municipalities. Often, meetings are infrequent: as in Prishtinë/Pritina and Klinë/Klina Municipalities.
The MWGs were set up as the principal forum for planning and co-ordinating return projects. In addition, they were intended as a vehicle for inter-ethnic dialogue and reconciliation, involving local authorities, elected representatives of both majority and minority ethnic groups, IDPs and prospective returnees. However, in most cases their impact on promotion of reconciliation and returns has been limited. The MWGs' effectiveness largely depends on the participation of representatives of local communities and displaced minorities, and their willingness to disseminate information gathered to community members: this has sometimes been found lacking. In addition, many majority representatives did not attend MWG meetings in the run up to the elections in late October for political reasons, in some cases halting the returns process for several months. In Prizren, the RWG enjoys no participation from local officials. It is crucial that both the political leadership and UNMIK encourage appropriate representation in these structures.
Major changes were also evident at the central level. In May 2002, the emphasis on returns on the highest level in UNMIK resulted in the adoption of a policy paper on return, to guide the overall process. With UNHCR handing over responsibilities to UNMIK to focus more on its supervisory role in the returns process, ORC has taken a lead in co-ordinating returns issues on a central level. The Returns Co-ordination Group, the Taskforce for Return, and the Technical Advisory Board were established in November and December 2002. Composed of international actors and PISG, the Returns Co-ordination Group, chaired by ORC, addresses operational issues and ensures co-ordination between all actors. As seen above, one of its main challenges will be to increase the efficiency and commitment of the Municipal Working Groups.
The Taskforce on Returns is composed of all four UNMIK Pillars, ORC, HPD, UNHCR, KFOR and the PISG, and is chaired by the SRSG. Meeting twice a year, it is expected to ensure consistent implementation of returns policies, including in the municipal and regional working groups. During the fall, ORC also established Regional Returns Units in the field, to work closely with the municipal and regional authorities and promoting coherent policy. In addition, ORC is recruiting personnel for its Belgrade Office. Furthermore, a Technical Advisory Board, chaired by UNHCR, was established in December to provide its expertise to the project development process. Finally, with the release of the jointly ORC and UNHCR produced 'Manual on Sustainable Return', it is expected that greater coherence will be brought to the structures of the returns process.