Justice in property matters in Kosovo: a lesson from a postwar country

ABSTRACT

Background: In the realm of property matters, or more precisely, the infringement of property rights and the pursuit of adequate justice, Kosovo stands out as one of the most unique cases. Its uniqueness stems not from a singular circumstance, law, or period but from a complex interplay of events, laws, and historical periods. The primary objectives of this paper revolve around property disputes stemming from ethnic conflicts, discriminatory laws, and wartime circumstances. The paper is grounded in two fundamental hypotheses. Firstly, it seeks to examine the property disputes that have arisen because of these conflicts, discriminatory laws, and war, particularly targeting certain segments of the population. Secondly, it aims to explore strategies for avoiding such consequences in the future and recovering material damages incurred. The context under observation is also important because of the significant involvement and influence of the international administration. In this sense, the case of Kosovo can serve as a typical example, theoretically and practically, for other societies and countries facing similar challenges. Lessons from the positive aspects of Kosovo's case should be considered while avoiding repeating numerous mistakes to prevent these countries from experiencing the consequences of such oversights.

Methods: The foundational sources used to develop this paper encompass scholarly works such as textbooks and scientific papers, legislative acts including international conventions, and judicial practice. Given the paper's unique nature and the problem it addresses, it further draws upon a range of research and reports from reputable international organisations that have systematically monitored the situation as impartial observers. kosovo postwar country

The paper adheres to a specific methodology, with the historical method being indispensable in matters related to property. Through this method, the evolution of ownership, ideas, community consciousness, political and social movements that influenced the law, and international missions approaches that contributed to shaping distinctive legislation in Kosovo known as 'UNMIK Regulation' are unveiled.

This study predominantly employed the analysis method, synthesis method, and comparative method. The analysis method scrutinises relevant legal provisions and case law, while the synthesis method has been utilised within the framework of comparative methods. To a certain extent, the descriptive method was also employed to furnish readers with a clear overview of the events and relevant implementation mechanisms related to property rights.

Results and Conclusions: The paper delineates three major types of property disputes arising from the unique circumstances characterising Kosovo: property claims deriving from `repressive measures' (1990-1998), property claims deriving after the war (27 February 1998 - 20 June 1999); and property claims caused by the system of social property (after 1945)- subsequently derivingfrom its privatisation after 1999. For each of these violations of property rights, their causes, circumstances, and underlying purposes are examined and argued. The paper also discusses approaches for addressing these disputes. While it is concluded that addressing property claims deriving after the war (27 February 1998 - 20 June 1999) has been satisfactory, the same cannot be said for the other two categories of property disputes. In these instances, modern law remains largely silent. Therefore, although this paper is titled `justice' in property matters it primarily grapples with the prevailing of `injustices' in property matters. However, the paper offers ideas and suggestions on how modern law can address these categories of violation of property rights.

INTRODUCTION

The evolution of historical and political circumstances has shaped the essence of property relations, rights, violations, and the nature of property disputes. Conversely, given that property relations form the foundation of any legal order, it is impractical to delve into them without considering the political and legal context. In the past, Kosovo has lacked a formal legal system of its own to regulate property relations aside from customary law. This type of law was neither written nor issued by any legislative body; rather, it embodies rules established and applied by society, with a vital role played by the precedents set by councils of elders-- the most senior individuals familiar with the customs and rules of customary law. See, Syrja Pupovci, Marredhenjet Juridike Civile ne Kanunin e Leke Dukagjinit (Universiteti i Prishtines 1971) 9. Consequently, each system and foreign state apparatus that was established brought its own set of rules.

In its later history, post-1945, Kosovo unwillingly remained under the Socialist Federal Republic of Yugoslavia (hereafter: SFRY), precisely under the Republic of Serbia, with the status of “autonomous province”. Constitution of Socialist Federal Republic of Yugoslavia of 21 February 1974 [1974] Official Gazette of Socialist Federal Republic of Yugoslavia (SFRY) 01, ch 1 basic principles; Constitution of Socialist Autonomous Province of Kosovo of 28 February 1974 [1974] Official Gazette of SFRY 01, ch 1 basic principles. Also, Noel Malcolm, Kosovo: A Short History (Macmillan Pub 1998) 341; Fred Singleton, A Short History of the Yugoslav Peoples (CUP 1989) 209. Throughout this period, the institution of social property, also known as socially owned property, occupied a central position, encompassing legal and economic dimensions. Socialist property replaced the feudal property relations which were based on the Ottoman Empire tapi system. See, Iset Morina, Die Entwicklung des Immobilienrechts im Kosovo (Verlag Dr Kovac 2007) 38; Ejup Statovci, Marrёdhёniet promsore juridike n sendet e paluajtshme n KSA tё Kosovёs (Universiteti i Prishtines 2009) 172. This concept was ideologically directly connected with Yugoslav socialism. Despite the fact that private law in former Yugoslavia was regulated according to the civil law tradition, heavily influenced by Austrian law and the pandect system division, the legal institute of social property constituted a significant exception.

Social property did not come into existence accidentally; it was established through various laws and several phases of development. In fact, its genesis (starting in 1945) and subsequent evolution mark the origins of property issues. In the beginning, after 1945, socially owned property was state property, confiscated, nationalised, and expropriated by citizens. Law of the Federal People's Republic of Yugoslavia `On Agrarian Reforms and Colonialization' [1945] Official Gazette of FPRY 64; Law of the Federal People's Republic of Yugoslavia `On Confiscation of Property of War Criminals and Collaborators' [1946] Official Gazette of FPRY 61; Law of the Federal People's Republic of Yugoslavia `On Transfer of Enemies' Property into State Ownership' [1946] Official Gazette of FPRY 63; Law of the Federal People's Republic of Yugoslavia `On Amendment of Law on Expropriation' [1957] Official Gazette of FPRY 12; 53/62, 13/65. Land confiscated by the state was dedicated to the creation of a so-called “agricultural fund”, which later allocated the land to economic organisations Law of the Socialist Federal Republic of Yugoslavia `On amendments and addendums of Agricultural Fund of Farmers Economy in Social Ownership and Allocation of Land to Farmers-Economic Organizations' [1965] Official Gazette of SFRY 10. functioning as agricultural cooperatives. Land into possession of the cooperative was registered as a land of Socially Owned Enterprises (hereafter: SOE) in the capacity of social ownership, whereas the cooperative, in the capacity of a legal entity, was registered in public land records as possessor right holder. On this occasion, state property (“nationwide”), along with property in possession of cooperatives, was transferred into the socially owned property. Abdullah Aliu, E Drejta Sendore: Pro^sia (Universiteti i Prishtines 2006) 295. Even though, at this point, one must also mention “agrarian reform”, where part of the land from agricultural funds was allocated in use to farmers who did not possess any land or who did not possess enough, under specific conditions by proclaiming the principle that the land belongs to those who cultivate it. Law On Agrarian Reforms and Colonialization (n 8) art 1. The so-called agrarian reform was fundamentally unjust and discriminatory against the indigenous Albanian population. This is attributed to the fact that properties that exceeding 15 hectares were taken from Albanian owners and distributed to 'colonialists' from other Yugoslav countries, particularly from Serbia and Montenegro, who resettled in Kosovo. On the other hand, politically this was justified by the socialist principle of equality, asserting that land belongs to those who cultivate it. See Fatmir Sejdiu, Politika agrare si instrument i shtypjes nacionale ^ Kosovё (Universiteti i Prishtines 2001) 120. In addition to this, during this period, a Turkish-Yugoslav “Gentlemen's” Agreement in 1953 was reached. According to this Agreement, the deportation obligations of the Albanian population to Tukey, where initially Turkey requested the deportation of 250,000 Albanian residents of the anticipated one million to be resettled. The property of these inhabitants was never even discussed; it was all taken without any documentation. See, Kosova Institute of History, Expulsions of Albanians and Colonisation of Kosova (Kosovo Information Center 1997) ch 3, para 3 <https://nointervention.com/archive/Yugoslavia/ Kosovo/www.kosova.com/contents.htm> accessed 14 December 2023. Also see, Fehmi Pushkolli, Shpernguljet e shqiptareve пё Turqi dhe Marreveshjet Jugosllave-Turke (Fjala 1994). Later, socially owned property was embodied and built based on constitutional and legal principles (norms). Wlodzimierz Brus, Socialist Ownership and Political Systems (Routledge & Kegan Paul 1975) 93. These provisions also determined categories of socially owned property. Especially, Constitution of Socialist Federal Republic of Yugoslavia (n 2); Law of the Socialist Federal Republic of Yugoslavia `On Associated Labour' [1976] Official Gazette of SFRY 53; Law of the Socialist Federal Republic of Yugoslavia `On Enterprise' [1988] Official Gazette of SFRY 77. Therefore, in the former SFRY socialist system, socially owned property generally consisted of land and all production assets (apart from personal property assets of artisans), assets of social labour (assets in service of organisation of associated labour or particular body), as well as all minerals and other natural wealth. Constitution of Socialist Federal Republic of Yugoslavia (n 2), ch 3 basic principles.

Conceptually, the best way to understand this kind of property is to compare it with the concept of ownership itself. There are at least four main identifying elements or main differentiating aspects between social ownership and private ownership. First, the aspect of who was the “owner” of socially owned property and which were authorisations (entitlements) over the social property. At this point, it is a commonly known legal fact that one can acquire ownership rights on no legal basis over this property and wealth (including municipalities, organisations of associated labour and foundations) This determination was enshrined in constitutional provisions, see ch. 3 Basic principles of Constitution of Socialist Federal Republic of Yugoslavia. Also, Constitution of Socialist Autonomous Province of Kosovo (n 2) ch 3 basic principles. since these entities were only bona fide administrators of this property. The second aspect regards the function of social ownership, which consists of the fulfilment of collective needs, especially of those who work and administrate production and distribution. Jovan Dordevic, Sistemi Politik (Universiteti i Prishtines 1978) 415. The third aspect regards the institute of prescription, which could not be applicable for social ownership Law of the Socialist Federal Republic of Yugoslavia `On Basic Property Relations' [1980] Official Gazette of SFRY 06. Article 29 of this Law deleted with amendments and addendums of Law No. 29/96. until the legislative change in 1996. Case AC-II-12-0187 MM v Privatization Agency of Kosovo [2013] Special Chamber of the Supreme Court of Kosovo 2013. Whereas the fourth aspect was about some cases of legal transactions of socially owned property. Indeed, this should have been “non-transaction” because such a procedure, in principle, could not be implemented, but only in specific cases and exceptionally when such ownership transactions served to increase the value in qualitative or quantitative aspects of socially owned property. According to article 4 of the Law on Transfer of Immovable Property (Official Gazette of Socialist Autonomous Province of Kosovo 45/81), property in social ownership cannot be transferred to private persons, unless in special circumstance determined by the law. For example, the transfer of social ownership may take place with compensation for land deemed impractical for rational operation, such as small and isolated forests, enclaves, and semi-enclaves. The condition for this transfer is that the funds received must be utilized for the acquisition of another land of similar nature.

This form of organisation, for a short time, became dominant in the planned economy with the social plan, and as such, it grew and multiplied. Presently, social ownership in Kosovo constitutes the largest type of property. There were over 590 SOEs identified in Kosovo. SOEs were estimated to constitute 90 percent of Kosovo's industrial and mining foundation, 50 percent of commercial retail space, and less than 20 percent of agricultural land, encompassing prime commercial agricultural land and the majority of Kosovo's forests. The SOE sector employed around 20,000 individuals and operated across diverse sectors, including metallurgy, plastics, paper processing, tourism, mining, agro-industry, agriculture, forestry, construction, textiles, wineries and breweries, tobacco, as well as retail and wholesale trade. See, Privatization Agency of Kosovo, Work Report August 2008 - August 2009 (2009) 6 <https://www.pak-ks.org/page.aspx?id=2,40> accessed 15 December 2023. It is essential to emphasise that not all social property is deemed illegitimate; its legitimacy is contingent on its origin, explicitly involving confiscations, colonisations, nationalisations, and expropriations without compensation. In this aspect and in the context of property rights, the rule of law, and the democratic principles in our modern era, these processes that led to establishing social property are considered illegitimate and unjust. See for example, European Parliament, Private properties issues following the change of political regime in former socialist or communist countries Albania, Bosnia and Herzegovina, Bulgaria, Croatia, Romania and Serbia: Study (Policy Department Citizens' Rights and Constitutional Affairs 2010) <https://www.europarl.europa.eu/thinktank/en/document/IPOL-PETI_ET(2010)425609> accessed 15 December 2023.

During the 1990s, the succession and disintegration of SFRY was began. The declarations of independence by Slovenia and Croatia in 1991 signified the initiation of the dissolution of SFRY, subsequently resulting in three bloody wars in Balkan: Croatia 1991-1995); Bosnia and Herzegovina 1992-1995; and Kosovo 1998-1999). See, John R Lampe, Yugoslavia as History: Twice there was a country (2nd edn, CUP 2000) 365; Carsten Stahn, `The Agreement on Succession Issues of the Former Socialist Federal Republic of Yugoslavia' (2002) 96(2) The American Journal of International Law 380, doi:10.2307/2693933. These secessions marked the point of no return in the nationalisation of politics and rapidly escalated into war. Sabine Rutar, `Nationalism in Southeastern Europe, 1970-2000' in John Breuilly (ed), The Oxford

Handbook of the History of Nationalism (OUP 2013) 527, doi:10.1093/oxfordhb/

9780199209194.013.0026; Ana S Trbovich, A Legal Geography of Yugoslavia's Disintegration (OUP 2008) 232, doi:10.1093/acprof:oso/9780195333435.001.0001; Vesna Pesic, Serbian Nationalism and the Origins of the Yugoslav Crisis (Peaceworks 8, United States Institute of Peace 1996) 5. During that time, the status of Kosovo changed drastically. On 28 March 1989, On March 28, 1989, the Assembly of the Republic of Serbia ratified Constitutional amendments 9-49, effectively transferring the powers of the self-governing bodies of Kosovo to the authorities of Serbia. Serbia employed various laws and measures (known as “repressive measures” or compulsory/emergency measures) to contest and destroy the autonomy of Kosovo. Among the key laws that should be highlighted, though not exclusively, is the Law on the Action of Republican Bodies in Special Circumstances in Kosovo, enacted on June 26, 1990. This law resulted in the dismantling of the structure overseeing the institutions of social and economic activities, leading to the dismissal of nearly 300 Albanian directors. Another significant law was the Law on Abrogation of the Activity of the Assembly of Kosovo and its Government, 5 July 1990. By that law Kosova was deprived of legislative and executive power; the Law on Labour Relations in Special Circumstances in Kosovo, implemented on July 26, 1990, is deemed an act of national discrimination against Albanian population.

It instituted a prohibition on all activities in the Albanian language, encompassing education, culture, science, and mass media. This legislation led to the banishment of 135,000 Albanian workers from their

position of employment, significantly impacting their material well-being of their families; On

27 September 1990, Serbia approved its Constitution, further diminishing the autonomy of Kosovo. This constitution refers to Kosovo as 'Kosova and Metohija,' a term viewed by Albanians as emblematic of Serbian occupation. See, Kosova Institute of History (n 7) ch 4, paras 2, 3. Also see, Esat Stavileci, Rrenimi i Autonomise se Kosoves (Shoqata e pavarur e juristeve te Kosoves 1992) 43; Adil Fetahu, Masat e perkohshme: akt i shkaterrimit te ndermarrjeve ekonomike dhe institucioneve shoqerore te Kosoves (Bashkimi i Sindikateve te Pavarura te Kosoves 1992) 8. In summary, under these repressive measures, three policies were implemented: firstly, the dismissal of the majority of Albanian public servants and workers in the public sector; secondly, the conversion of all socially-owned enterprises into public enterprises under the administration of individuals loyal to Belgrade; and thirdly, the transfer of property rights/assets of SOEs in Kosovo to Serbian public enterprises. Malcolm (n 2) 345; Ted Baggett, `Human Rights Abuses in Yugoslavia: To Bring an End to Political Oppression, the International Community Should Assist in Establishing an Independent Kosovo' (1998) 27(1) Georgia Journal of International and Comparative Law 461. Albanian ethnics faced ongoing expulsion from positions controlled by state-owned enterprises. Serbian militia, under the leadership of Z. Raznjatovic, intensified harassment against Albanians, characterized by Kosovar leaders as “ethnic cleansing in the quiet”. The reported outcome was a significant Albanian emigration from Kosovo, with estimates reaching up to 500,000. See, Minorities at Risk Project, `Chronology for Kosovo Albanians in Yugoslavia' (Refworld, 2004) <https://www.refworld.org/docid/469f38f51e.html> accessed 14 December 2023. These measures were also strongly condemned by the United Nations General Assembly. Situation of human rights in the territory of the former Yugoslavia: violations of human rights in the Republic of Bosnia and Herzegovina, the Republic of Croatia and the Federal Republic of Yugoslavia (Serbia and Montenegro) (adopted 20 December 1993 UNGA Res 48/153) <https://digitallibrary.un.org/record/283503?ln=en> accessed 15 December 2023. Inter alia, strongly condemns specific measures and discriminatory practices, as well as human rights violations against ethnic Albanians in Kosovo. It highlights the extensive repression carried out by Serbian authorities, including police brutality against ethnic Albanians, arbitrary searches, seizures, and arrests, along with torture and ill-treatment during detention. Discrimination in the administration of justice contributes to a climate of lawlessness, allowing criminal acts, particularly against ethnic Albanians, to occur with impunity. The discriminatory removal of ethnic Albanian officials, especially from the police and judiciary. This includes the mass dismissal of ethnic Albanians from professional, administrative, and other skilled positions in state-owned enterprises and public institutions. This also encompasses the removal of Albanian teachers from the Serb-run school system and the closure of Albanian high schools and universities, etc. The end of Kosovo's autonomy was met with violent protests by Albanians, which were eventually quelled. Subsequent to the unrest, thousands of police were deployed from outside the province, leading to widespread repression, arrests, and imprisonments. Tim Judah, Kosovo: What Everyone Needs to Know (OUP 2008) 67. Ultimately, this situation culminated in the war from February 1998 to June 1999. Florian Bieber and Zidas Daskalovski (eds), Understanding the War in Kosovo (Frank Cass 2003) 3.

The enormous violations of property rights and other basic rights of the Albanian population in Kosovo were a catalyst for the war of 1998-1999. In June 1999, following the capitulation of Serbia and the conclusion of the war in Kosovo, the United Nations Mission was deployed in Kosovo, and hereby, the Interim Administration of the United Nations Mission in Kosovo (hereinafter: UNMIK) was established. UN Security Council Resolution 1244 (1999) [On the Deployment of International Civil and Security Presences in Kosovo] (adopted 10 June 1999) <https://undocs.org/S/RES/1244(1999)> accessed

15 December 2023; UNMIK Regulation no 1999/1 of 25 July 1999 `On the Authority of the Interim Administration in Kosovo' <https://unmik.unmissions.org/sites/default/files/regulations/02english/ E1999regs/RE1999_01.htm> accessed 15 December 2023.

As a post-war aftermath, UNMIK and Kosovo society faced many issues, such as war crimes, internal displacement of ethnic groups, reconstruction of burned settlements, peacebuilding, the rule of law strengthening, retribution, institutional establishment, and functioning, etc. Independent International Commission on Kosovo, The Kosovo Report: Conflict, International Response, Lessons Learned (OUP 2000) 99-128, doi:10.1093/0199243093.001.0001; Gjylbehare Bella Murati, UN Territorial Administration and Human Rights: The Mission in Kosovo (Post-Conflict Law and Justice, Routledge 2020) 28; Flora Ferati-Sachsenmaier, `Postwar Kosovo: Global and Local Dimensions of Interethnic Reconciliation Processes' (2019) 13(2) International Journal of Transitional Justice 310, doi:10.1093/ijtj/ijz004. Moreover, land and property became pivotal concerns as they are intricately linked to the conflict and injustices from the past. Therefore, establishing effective mechanisms for resolving property disputes, coupled with appropriate approaches, emerged as a critical priority.

From 1999 to 2008, the international administration had legislative, executive, and judicial power and determined which laws were applicable. Also, in the sense of property rights, UNMIK administered movable and immovable property (excluding private property) across the entire territory of Kosovo, particularly in cases where there were reasonable and objective grounds to believe that such property was registered under the former Yugoslavia or Serbia, or any other relevant body, and was socially owned. Art. 6 of UNMIK Regulation no 2000/54 of 27 September 2000 amending UNMIK Regulation 1999/01 of 25 July 1999, as amended, on the Authority of the Interim Administration in Kosovo.

Kosovo experienced a rapid transition from a country with socialist/communist traditions and a history governed by hundreds of discriminatory laws to a country governed by a more developed Western legal framework after 1999. During the execution of their responsibilities, individuals performing public duties or holding public office in Kosovo are required to apply internationally recognized human rights standards: (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. These legal acts shall be considered to have become effective as of June 10, 1999. See, UNMIK Regulation no 1999/24 of 12 December 1999 `On the Law Applicable in Kosovo' <https://unmik.unmissions.org/sites/default/files/regulations/02english/ E1999regs/RE1999_24.htm> accessed 15 December 2023. This marked a significant and swift transformation in the legal and governance structure.

In February 2008, the Assembly of Kosovo declared its independence, proclaiming it an independent and sovereign state. Kosovo Declaration of Independence of 17 February 2008 <https://www.refworld.org/legal/ legislation/natlegbod/2008/en/56552> accessed 15 November 2023. Kosovo declared its independence from the Republic of Serbia. The United Nations Security Council Resolution 1244 (1999) is still into the force. As of now, Kosovo officially is recognized as an independent state by one hundred and seventeen states. See, Robert Muharremi, `Kosovo's Declaration of Independence: Self-Determination and Sovereignty Revisited' (2008) 33(4) Review of Central and East European Law 401, doi:10.1163/157303508X339689; Colin Warbrick, `Kosovo: The Declaration of Independence' (2008) 57(3) The International and Comparative Law Quarterly 675. In April 2008, the Assembly of Kosovo also adopted its Constitution, which entered into force on 15 June 2008. Constitution of the Republic of Kosovo of 15 June 2008 (with amendments I-XXVI) <https://gzk.rks-gov.net/ ActDetail.aspx?ActID=3702> accessed 15 December 2023. The significance of this Constitution lies in the fact that it represented the international community's engagement in finding an internationally accepted solution to Kosovo's political status. Robert Muharremi, `The Republic of Kosovo: Introductory Note' (Oxford Constitutional Law, 2008) <https://oxcon.ouplaw.com/display/10.1093/law:ocw/law-ocw-cm471.document.1/law-ocw-cm471? rskey=2xyhfg&result=768&prd=OXCON> accessed 15 December 2023.

With this momentum, the transference of authorisations occurred (from UNMIK to Kosovo's institutions). Martti Ahtisaari, Letter dated 26 March 2007 from the Secretary-General addressed to the President of the Security Council, Addendum: Comprehensive Proposal for the Kosovo Status Settlement, art 14 <https://digitallibrary.un.org/record/595359?ln=en&v=pdf> accessed 15 December 2023. However, Kosovo did not make substantial changes; rather, it followed the existing framework. Furthermore, after gaining independence, Kosovo consistently demonstrated loyalty and coordination with its partner states and international organisations, Hajredin Ku^i, `International Legal Cooperation between Kosovo and other States and Organizations' (2018) 43(3) Review of Central and East European Law 314. particularly in actions that impacted its citizens' vital rights. Wolfgang Benedek, `Final Status of Kosovo: The Role of Human Rights and Minority Rights' (2005) 80(1) Chicago-Kent Law Review 215; Beti Hohler and Barbara Sonczyk, `The Role and Impact of the European Convention on Human Rights Beyond States Parties: The curious case of the ECHR in Kosovo' in Stephanie Schiedermair, Alexander Schwarz and Dominik Steiger (eds), Theory and Practice of the European Convention on Human Rights (Nomos 2022) 261; Remzije Istrefi and Iliriana Islami, `Incorporation of International Human Rights into National Legislation: The Case of Kosovo' (2017) 20(1) SEER Journal for Labour and Social Affairs in Eastern Europe 119.

1 THE NATURE OF PROPERTY DISPUTES AND JUSTICE

Concerning common property disputes among individuals, Kosovo upholds the traditional property protection system rooted in Roman law and modern civil law principles. Berat Aqifi, Petrit Nimani and Artan Maloku, `The Right of Ownership and Legal Protection in Kosovo' (2023) 6(3) Access to Justice in Eastern Europe 228, doi:10.33327/AJEE-18-6.3-a000310; Iset Morina, `Sachenrecht im Kosovo' in Herbert Grziwotz, Johanna Schmidt-Rantsch and Gerhard Ring (eds), Btirgerliches Gesetzbuch: BGB, band 3: Sachenrecht (5 Aufl, Nomos 2021) 2525; Ejup Statovci, Mbrojtja e Pronёsisё: Studim Komparativ (ribot, Enti i Teksteve 2009) 46. Also, Law of the Republic of Kosovo no 03/L-154 of 25 June 2009 `On Property And Other Real Rights' [2009] Official Gazette of the Republic of Kosovo 57/20, art 93-103. Under the influence of Roman law concerning the protection of property and other property rights in general, a series of lawsuits were employed to seek protection for these rights. Examples include actio reivindicatio, actio publiciana, actio negatoria, interdictum retinendae possessionis, etc. Herbert Hausmaninger and Richard Gamauf, A Casebook on Roman Property Law (OUP 2012) 205; Paul du Plessis, Borkowski's Textbook on Roman Law (OUP 2015) 219, 229, 231. However, considering the circumstances in Kosovo, it is evident that after 1999, apart from these property disputes filed before regular courts, there are three major kinds of property disputes: property claims deriving from “repressive measures” (19901998), property claims deriving after the war (27 February 1998 - 20 June 1999); and property claims caused by the system of social property (after 1945)-subsequently deriving from its privatisation after 1999. Ardrit Gashi, Mbrojtja e pronёsisё: Щё studim sipas tё drejtёs нё Kosovё dhe Konventёs Evropiane pёr tё Drejtat e Njeriut (Alb-Juris 2021) 188.

To handle these disputes efficiently, Kosovo has instituted specialised mechanisms and bodies with administrative, judicial, and quasi-judicial functions. The judiciary system in Kosovo comprises the following courts: Basic Courts, Court of Appeals, and Supreme Court. Law of the Republic of Kosovo no 06/L-054 of 23 November 2018 `On Courts' [2018] Official Gazette of the Republic of Kosovo 22/3, art 8. Relevant to our topic and the nature of property matters is the establishment of specific judging panels to address these specific issues. In this regard, within the Supreme Court framework, a Panel of Appeals was created for property issues handled by the Kosovo Property Agency, as well as a Special Chamber for property problems arising from privatisation under the Privatisation Agency of Kosovo. ibid, art 25. Details regarding the scope and competences of these mechanisms will be discussed below.

The establishment of these mechanisms was undertaken to enhance efficacy in resolving property matters even though the repercussions stemming from these types of disputes and the mechanisms established for their resolution have intricately complicated the contemporary process of codifying civil law. Ardrit Gashi, `Codification of Private Law in the Republic of Kosovo: The Influence of European Codifications, European Law and Challenges' (2022) 10(2-4) International Journal of Private Law 199, doi:10.1504/IJPL.2022.129672.

2 PROPERTY CLAIMS DERIVING FROM "REPRESSIVE MEASURES" (1990-1998)

As mentioned above, immediately following the destruction of the status of autonomy that Kosovo had until then, during the 1990s, a direct offensive on property relations ensued through a series of measures and laws. There are three primary laws entirely issued on a discriminatory basis against the Albanian population:

- Law on Changes and Supplements on the Limitation of Real Estate Transactions (hereafter: Law No. 22/91);

- Law on the Conditions, Ways, and Procedures of Granting Farming Land to Citizens Who Wish to Work and Live in the Territory of the Autonomous Province of Kosovo and Metohija (hereafter: Law No. 43/91).

- Law on the Conditions and Procedures for the Transformation of Social Property into Other Forms of Ownership (hereafter: Law No. 48/91). Law of the Republic of Serbia `On Changes and Supplements on the Limitation of Real Estate Transactions' [1991] Official Gazette of the Republic of Serbia 22; Law of the Republic of Serbia `On the Conditions, Ways, and Procedures of Granting Farming Land to Citizens Who Wish to Work and Live in the Territory of the Autonomous Province of Kosovo and Metohija' [1991] Official Gazette of the Republic of Serbia 43; Law of the Republic of Serbia `On the Conditions and Procedures for the Transformation of Social Property into Other Forms of Ownership' [1991] Official Gazette of the Republic of Serbia 48; 75/91, 8/94.

These laws were not merely conventional statutes; they constituted programs with specific missions to provide residences for officials and encourage the influx of individuals from other countries who desired to live in Kosovo. The underlying objective appeared to be a classic form of re-nationalisation of property They decided to terminate socially owned first through various procedures of “renationalization” and after to gain ground and take measures for privatization process. In this manner, there was a reduction in workers' rights, accompanied by an increase of government control exercised by state representatives on management committees. See, Milica Uvalic, `Privatization in Serbia: The Difficult Conversion of Self-Management into Property Rights' in Virginie Perotin and Andrew Robinson (eds), Employee Participation, Firm Performance and Survival (Advances in the Economic Analysis of Participatory & Labor-Managed Firms 8, 8th edn, Emerald 2004) 224, doi:10.1016/S0885- 3339(04)08009-3. and a push for recolonisation. On the other hand, there appeared to be attempts to compel Albanians to emigrate from their ethnic land.

Thus, through Law No. 22/91, it was stipulated that individuals of Albanian ethnicity did not possess the right to acquire and purchase real estate. On the other hand, Albanian citizens were only permitted to sell their properties to individuals who were not Albanian (like Serbs, Croats, etc.). The transfer of immovable property necessitated a written contract between the transferer and the receiver on a legal basis, coupled with registration in the property rights register. Law On Basic Property Relations' (n 13) art 33; Law on Transfer of Immovable Property (n 15) art 10. This condition could never be fulfilled by the Albanians because the agreement for the transferal of rights of an immovable property had to be completed and verified before a competent court-that, in this case, this discriminatory law did not permit. The act of registering rights over immovable property is crucial and bears a `constitutive effect'. This implies that the acquiring of possession/property, alteration, transformation/termination of ownership to immovables necessitates a contract that holds legal validity and the registration of the relevant transaction in cadastral records-modus acquirendi. See, Christoph U Schmid, Christian Hertel and Hartmut Wicke, Real Property Law and Procedure in the European Union: General Report, Final Version (European University Institute, Deutsches Notarinstitut 2005) 27. The same principle holds true for former Yugoslavia and Kosovo as well. See, Andrija Gams, Bazat e se drejtes reale (Universiteti i Prishtines 1978) 182. In this way, this law flagrantly violated the fundamental principle of freedom of contract as a fundamental component of the liberal theory-laissez-faire. This legal framework applies the principle that everyone should be granted the autonomy to make their own choices. Morris R Cohen, `The Basis of Contract' in Richard A Epstein (ed), Liberty, Property, and the Law: Contract - Freedom and Restraint (Routledge 2011) 3; Jan M Smits, Contract Law: A Comparative Introduction (Edward Elgar 2014) 10; Roscoe Pound, `Liberty of Contract' (1909) 18(7) The Yale Law Journal 456, doi:10.2307/785551.

What were the consequences of this injustice? This situation resulted in numerous illegal property relations-known as informal transactions. Such transfers commonly involved a property agreement that was orally and discreetly concluded, possibly with witnesses present, and kept in the possession of the buyer. These agreements were never certified by a court, and consequently, the transaction was not registered in the immovable property rights register/cadastral records. This issue was observed by international organizations operating in Kosovo in a supervisory capacity, such as Department of Human Rights of the Organization for Security and Co-operation in Europe - Mission in Kosovo. See, OSCE, Litigating Ownership of Immovable Property in Kosovo (OSCE Department of Human Rights and Communities 2009) 5 <https://www.osce.org/kosovo/36815> accessed 15 December 2023. This implies that concerning the same property, there can be a registered formal holder and a de facto holder of the property who exercises their power over the property. These issues and property uncertainties concerning transactions came to the forefront after 1999, following the liberation of Kosovo. A new category of property disputes was introduced into the judicial system. OSCE, Kosovo: First Review of The Civil Justice System (OSCE Department of Human Rights and

Communities 2006) 7 <https://www.osce.org/kosovo/19401> accessed 15 December 2023; OSCE, Property Rights Mass-Claim Mechanism: Kosovo experience (OSCE Pub 2020) 14-20.

<https://www.osce.org/mission-in-kosovo/454179> accessed 15 December 2023. Ardrit Gashi, `Causes of Procedural Delays During the Settlement of Civil Cases at First Instance Courts' (2010) 14(1) E Drejta - Law 110. These lawsuits have a distinct name, referred to as lawsuits for verifying ownership. This is not associated with the three well-known lawsuits for the protection of property like actio reivindicatio, actio publiciana, actio negatoria or interdictum retinendae possessionis. The most appropriate legal solution for this issue is the validation of these transactions and contracts based on a standard of the legislation on obligation relations whereby the contract, for the conclusion of which the written form is necessary, is considered binding even if it was not completed in this form, provided that the parties-creditor and debtor have fulfilled, wholly or predominantly, the commitments arising from it. This exception applies if there is nothing else, except the stipulated form. See, Law of the Socialist Federal Republic of Yugoslavia `On Obligation Relations' [1978] Official Gazette of SFRY 30/78, art 73. Also, Case no KI 60/12 Rev no 58/2007 (15 March 2010) [2012] Constitutional Court of the Republic of Kosovo.

Law No. 43/91 constituted the legal basis for the unfair distribution of property and public assets based on ethnic grounds, particularly favouring the Serbian minority. The Serbian regime transported numerous Serbian families from various countries as settlers/colonists. Rifat Blaku, Shkaqet e eksodit shqiptar, shperngulja e shiptareve gjate shekujve (Prishtina 1992) 203. A second wave of recolonisation commenced on 10 August 1995 and continued afterwards. Serbian refugees from Croatia reached around 8,000 by 31 August 1995. See, Kosova Institute of History (n 11) ch 4, para 7. However, the statistics acknowledge the possibility of claiming that only half of the plan for settling 20,000 Serbian colonists in Kosovo has been fulfilled. A statement released by the Committee for Human Rights and Freedoms in Kosovo cautioned that a large-scale conflict might erupt in Kosovo if the resettlement of Krajina Serb refugees persisted. The statement highlighted that between August 9th and 31st, approximately 8,356 refugees from Krajina had been resettled in 23 locations in Kosovo, and prior to that, around 2,947 Serb refugees from Bosnia had also been relocated to the region. See, Minorities at Risk Project (n 22). In the Municipality of Prizren: one thousand two hundred eighty colonist were settled; in the Municipality of Prishtina: two thousand forty; in Municipality of Peja: one thousand; in municipality of Istog: six hundred and sixtyseven; in Municipality of Gjilan: five hundred; in Municipality of Gjakova: four hundred twenty; in Municipality of Mitrovica: three hundred and eighteen; in Mnicipality of Vushtria, Mnicipality of Suhareka and Municipality of Zubin Potok: two hundred fifty colonists were settled. etc. See, Kosova Institute of History (n 11) ch 4, para 7. To describe this situation more accurately, the International Helsinki Foundation for Human Rights referred to it as a policy of "Serbianization" in Kosovo while also identifying a series of restrictions imposed on the freedom of movement of ethnic Albanians, denying the right of use the of the Albanian language and the possession of the private property. Minorities at Risk Project (n 26). Also, Human Rights Watch, `World Report 1996 - Federal Republic of Yugoslavia' (UNHCR Refworld, 1 January 1996) <https://www.refworld.org/docid/3ae6a8b08.html> accessed 15 December 2023; Llibert Cuatrecasas and Vasili Likhachev, `The Crisis in Kosovo: Explanatory Memorandum CG (5) 7 Part II' (Council of Europe, 22 May 1998) <https://rm.coe.int/ the-crisis-in-kosovo/1680718a71> accessed 15 December 2023. The property and goods distributed to the colonists did not belong to Serbia; instead, they were the property of Albanians and social enterprises developed and cultivated by the Albanian population constituting around 90 percent at that time. Statistical Office of Kosovo, Demographic Changes of the Population of Kosovo for the period 1948-2006 (Population Statistics, SOK 2008) 19; Hivzi Islami, Demographic Studies: 100 Years of Kosova Demographic Development of Kosova (Kosovo Academy of Sciences and Arts 2008) 205, 212.

Law No.48/91 violated the property rights of socially owned entities, which, as mentioned above, were built by the efforts of the workers-constituting almost absolutely Albanians. In the socialist system, as mentioned earlier, socially owned enterprises were organised under the self-government system and were led by workers' councils. The destruction of the autonomy of Kosovo resulted in the displacement of 135,000 Albanian workers from their employment. Stavileci (n 21). Consequently, through Law No.48/91, the workers' councils of socially owned enterprises were replaced by bodies composed of loyalists sent from Belgrade in the capacity of management bodies. This law stipulated the conversion of SOEs into joint-stock companies, granting exclusive authority to the management body of the enterprise to decide on the transformation into joint-stock companies, as well as the issuance of shares. Law On the Conditions and Procedures for the Transformation of Social Property into Other Forms of Ownership (n 42) art 7. It has been proven that in this way, the capital of socially owned enterprises, represented by shares, is transferred predominantly into the hands and ownership of the Serbian and Montenegrin population. Nekibe Kelmendi, `Problemet pronesoro-juridike ne Kosove: si te zgjidhen ligjerisht' (1999) 4 Kosova Law Review 75. Besides that, there are also rights in socially owned housing, which were closely tied to employment.

Consequently, a significant number of Albanians were forcibly evicted from their homes. Many of these properties were then reallocated to Serbs and Montenegrins under preferential terms. In addition to losing their homes, the evicted Albanians also forfeited financial assets deposited in employment-linked housing funds and the right to purchase the socially owned apartment they had lived in and had accumulated during years of employment. Scott Leckie, `Resolving Kosovo's Housing Crisis: Challenges for the UN Housing and Property Directorate' (2000) 7 Forced Migration Review 12-3.

The damage and legal chaos brought about by the laws of this decade will likely be irreparable, and as it seems never avoidable.

After 1999, one of the most sensitive issues was the establishment of the legal infrastructure while simultaneously addressing a series of discriminatory laws. This responsibility fell to UNMIK, acting as the administrator in Kosovo in harmony with the authorisations granted by the United Nations. UN Security Council Resolution 1244 (1999) (n 26); UNMIK Regulation no 1999/1 (n 26). In this context, the applicable law consisted of UNMIK regulations and secondary legal acts/instruments (administrative directions) issued thereunder (approved and signed by the Special Representative of the Secretary-General), as well as the law in force in Kosovo before 1989 (prior to the destruction of autonomy and repressive measures in Kosovo). In the event of a conflict between these laws, the UNMIK regulations and secondary legal instruments issued by UNMIK were given primacy. UNMIK Regulation no 1999/24 (n 29).

Law No. 22/91 and Law No. 43/91 discussed above were repealed specifically as discriminatory legislation. UNMIK Regulation no 1999/10 of 13 October 1999 `On the Repeal of Discriminatory Legislation Affecting Housing and Rights in Property' <http://www.unmikonline.org/regulations/1999/reg10-99.htm> accessed 15 December 2023. These laws have been repealed, and it is evident that they will remain part of history. However, the consequences are significant.

The question can now be raised: What happened to those transactions that took place during those years based on these laws? What happened to the judgments that were issued based on these laws? And what occurred to the cadastral records of immovable properties that were made based on these laws and judgments? Unfortunately, nothing has been done. The reason is that UNMIK did not have the mandate to rectify or repair the injustices of the past, and secondly, UNMIK did not possess the capacity or mandate to provide long-term solutions as a state would.

On the other hand, even after Kosovo gained independence in 2008, the state has not taken measures in this direction. This is particularly due to political realities on the ground, See extensively, James Ker-Lindsay, Kosovo: The Path to Contested Statehood in the Balkans (IB Tauris 2009) 25; Marc Weller, Contested Statehood: Kosovo's Struggle for Independence (OUP 2009) 165. with a focus on avoiding further tensions with the Serbian minority and facilitating negotiations between Kosovo and Serbia. Bardhok Bashota and Afrim Hoti, `The Role of the EU in Facilitating a Hard Implementation Dialogue: Normalization of Kosovo-Serbia Relations' (2021) 45(3) Southeastern Europe 4, doi:10.30965/18763332-45010001; Leon Hartwell, The Serbia-Kosovo Dialogue: Ripe for Resolution? (Center for European Policy Analysis 2021) 2. What reality is created by this situation? With the liberation of Kosovo from Serbian occupation As the Ottoman Empire crumbled, leaving Kosovo in a state of anarchy, the Serb army under King Peter invaded from the north and occupied all of Kosovo. The Conference of Ambassadors, meeting in London from December 1912 to August 1913 to discuss events in the Balkans, confirmed the independence of Albania itself, but agreed to recognize Serb rule over Kosovo, thus excluding 40 percent of the Albanian population in the Balkans from Albania itself. It was a tragic mistake that haunted the Balkans right to the end of the 20th century. See, Robert Elsie, Historical Dictionary of Kosovo (Historical Dictionaries of Europe 79, 2nd edn, Scarecrow Press 2011) 57; Malcolm (n 2) 251. in June 1999, more than 90 percent of the Serbian minority was displaced to Serbia and its surrounding areas. Consequently, their properties were predominantly occupied by Albanians. Department of Human Rights and Rule of Law of the Organization for Security and Co-operation in Europe focus attention on the absence of directions on the actions to be taken to ensure a harmonized approach in addressing property rights violations. Issues such as illegal occupation, unequal access to mechanisms for the protection of property rights, and the existing uncertainty in the law, especially considering the domestic applicable law enacted prior to 1989, highlight the necessity for comprehensive legal reform. See, OSCE, Property Rights in Kosovo (OSCE Department of Human Rights and Communities 2002) 5 <https://www.osce.org/kosovo/13062> accessed 15 December 2023. These property disputes are called property claims derived from the war (27 February 1998 - 20 June 1999) and will be addressed in the subsequent section, focusing on property claims arising from this period.