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

As for Law No.48/9, UNMIK decided that the transformation of SOEs into other forms of organisations would be recognised only if it happened prior to 1989 or thereafter but was implemented/based on a non-discriminatory law and procedures. UNMIK Regulation no 2002/12 of 13 June 2002 `On the Establishment of the Kosovo Trust Agency' <https://unmik.unmissions.org/sites/default/files/regulations/02english/E2002regs/RE2002_12.pdf> accessed 15 December 2023. This meant that based on the criterion of discrimination of these laws, no transformation of SOEs was recognised. As a result, their legal status until 1989 will remain in force, making them eligible for inclusion in the privatisation process. ibid, ss 1, 2. Also, Ardrit Gashi, `Die Umwandlung des gesellschaftlichen Eigentums im Kosovo' (2018) 59(6) Zeitschrift fdr Europarecht, Internationales Privatrecht und Rechtsvergleichung 282.

4 PROPERTY CLAIMS DERIVING AFTER THE WAR (27 FEBRUARY 1998 - 20 JUNE 1999)

In post-war countries, beyond property issues, there exists a right under international law that safeguards the turnback of displaced humans to their homes. Marcus Cox and Christopher Harland, `Internationalized Legal Structures and the Protection of Internationally Displaced Persons' in Joan Fitzpatrick (ed), Human Rights Protection for Refugees, Asylum Seekers, and Internally Displaced Persons: A Guide to International Mechanisms and Procedures (Transnational Pub 2002) 521. This right, often referred to as the right to return, asserts that individuals forced to flee their homes due to conflict, persecution, or other emergencies have the right to return to their original homes or places of residence once conditions permit, and as such has undergone significant evolution as a human rights norm. Protecting these rights is instrumental in advancing long-term peace, stability, economic vitality, and justice. Scott Leckie, Housing, Land, and Property Restitution Rights of Refugees and Displaced Persons: Laws, Cases, and Materials (CUP 2007) 1-3. Hence, since the inception of the UNMIK engagement in Kosovo, property matters and housing rights have consistently held a prominent position on the agenda. Recognising this, UNMIK UN Security Council Resolution 1244 (1999) (n 26) art 11. established quasi-judicial and administrative bodies to expedite the resolution of property claims related to the conflict. This was done to prevent the overwhelming number of claims from burdening the regular court system.

To achieve an efficient and effective resolution of claims concerning residential property, several key measures and processes need to be in place. Some of these include a clear, comprehensive legal framework outlining the procedures for resolving property claims, defining the rights of claimants and the obligations of relevant authorities. At the same time, specialised bodies or tribunals are dedicated to handling property claims with their expertise and resources. In this sense, with the aim of offering comprehensive guidance on property rights in Kosovo, the Housing and Property Directorate has been established. UNMIK Regulation no 1999/23 of 15 November 1999 `On the establishment of the Housing and Property Directorate and the Housing and Property Claims Commission' art 1 <https://reliefweb.int/ report/serbia/unmik-regulation-no-199923-establishment-housing-and-property-directorate-and- housing> accessed 15 December 2023. This includes the establishment of the Housing and Property Claims Commission as an independent body of the Housing and Property Directorate, which will resolve private disputes (non-commercial) concerning residential property referred to by the Housing and Property Directorate. ibid, art 2. The creation of the Housing and Property Directorate resulted in the removal of jurisdiction for all housing cases from domestic courts, aligning with standard legal interpretation in Kosovo. Morina (n 36). However, implementing this change was contingent upon the creation of rules of procedure for the Housing and Property Directorate. UNMIK Regulation no 2000/60 of 31 October 2000 `On Residential Property Claims and the Rules of Procedure and Evidence of the Housing and Property Directorate and the Housing and Property Claims Commission' <https://docs.pca-cpa.org/2016/01/UNMIK-Regulation-2000-60.pdf> accessed 15 December 2023. This situation created a void in property rights cases. Anneke Rachel Smit, `Housing and Property Restitution and IDP Return in Kosovo' (2006) 44(3) International Migration 67.

These quasi-judicial bodies dealt with three categories of applications/disputes:

a) Applications by individuals/natural persons whose property, possession or occupancy rights to residential real property have been revoked subsequent to 1989 on the basis of discriminatory legislation;

b) Applications concerning possible validation of unofficial/informal contracts or transactions Contracts or unofficial/informal transactions, in this context, pertain to those transactions occurring after 1989, which, under discriminatory laws were deemed illegal and not permitted. Otherwise under normal circumstances, absent discriminatory laws, these contracts would be considered legal transactions. See, Law of the Republic of Serbia `On Special Conditions Applicable to Real Estate Transactions' [1989] Official Gazette of the Republic of Serbia 30; Law On Changes and Supplements on the Limitation of Real Estate Transactions (n 42). of residential real property based on the free will of the parties after 1989; and

c) Applications by individuals/natural persons who were the owners, possessors, or occupancy right holders of residential real property prior to 1999 and who do not have possession of their property and where the property has not willingly been transferred. UNMIK Regulation no 1999/23 (n 72) art 1.2.

In post-conflict societies, also mistrust often persists among parties that were once in conflict. For this purpose, the formation of these bodies could only be facilitated by the UNMIK.

It is observed that the primary challenge impacting property rights in Kosovo stems from the unlawful occupation of both residential and non-residential properties. The proceedings before the Housing and Property Directorate can extend up to four years, In this regard, there was also criticism voiced by Venice Commission. See, Opinion on Human Rights in Kosovo: Possible Establishment of Review Mechanisms no 280/2004 (11 October 2004). <https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2004)033-e> accessed 15 December 2023. and there is a lack of an effective remedy to address the prolonged duration of these proceedings and/or decisions on the merits. This situation has created an environment of impunity concerning violations of property rights. In addition, a significant challenge that adversely affected the Albanians was the inability to furnish ownership proofs and evidence. This challenge came from the informal transactions (non-registration) between 1989-1998, compounded by the impact of the war in 1998-1999, which included the burning of houses and the loss of everything during the displacement in Albania.

Furthermore, it is crucial to highlight an exceptionally significant and unprecedented fact: the Serbian military forces, upon concluding the war and withdrawing from Kosovo, took the cadastral registers with them. The lack of cadastral records further complicated the situation, contributing to an even deeper chaos regarding ownership evidence. Regarding to this issue in 2011 within the European Union facilitated negotiations (between Kosovo- Serbia) was reached the Brussels Agreement on Cadastre (2 September 2011), which has never been fully implemented. See also, Shpetim Gashi and Igor Novakovic, Brussels Agreements Between Kosovo and Serbia: A Quantitative Implementation Assessment (Friedrich-Ebert-Stiftung 2020) 2. In practical terms, the situation unfolded with Albanians holding de facto possession of the property-- considered unlawful possessors, while the Serbs had the last ownership evidence--“papers”. Given these circumstances and considering that a significant number of Serbs did not consider themselves indigenous (with many arriving in the 1990s), they opted to sell these properties to the Albanians. In the opinion of the author of this article, the choice made may not be deemed a good or just option. However, it appears that such decisions were driven by circumstances to mitigate potential conflicts. In transitional justice, such methods may be considered at times, but it is essential that any actions occur with the full and voluntary consent of the parties involved. See for example, Rhodri C Williams, The Contemporary Right to Property Restitution in the Context of Transitional Justice (Occasional Paper Series, ICTJ 2007) 51; Edward Tawil, Property Rights in Kosovo: A Haunting Legacy of a Society in Transition (Occasional Paper Series, ICTJ 2009) 49-50.

To address disputes over private property, encompassing agricultural and commercial property, significant legislative changes were introduced in 2006. These changes aimed to implement a mass claims resolution methodology. Regarding the term `mass claims' see, Howard M Holtzmann, `Mass Claims' Max Planck Encyclopedia of Public International Law (Oxford Public International Law 2008) <https://opil.ouplaw.com/ display/10.1093/law:epil/9780199231690/law-9780199231690-e1891> accessed 15 December 2023. These changes transformed the Housing and Property Directorate into a new agency called Kosovo Property Agency. UNMIK Regulation no 2006/10 of 4 March 2006 `On the Resolution of Claims relating to Private Immovable Property, Including Agricultural and Commercial Property' <https://docs.pca-cpa.org/ 2016/01/UNMIK-Regulation-2006-10.pdf> accessed 15 December 2023. The central mandate of the newly established Agency was to ensure the effective and efficient resolution of property disputes related to private immovable property, encompassing agricultural land and commercial property. Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, UN Doc S/205/335 (23 May 2005) § 67 <https://undocs.org/SZ2005/335> accessed 15 December 2023. Also, Margaret Cordial and Knut Rosandhaug, Post-Conflict Property Restitution: The Approach in

Kosovo and Lessons Learned for Future International Practise (Martinus Nijhoff Pub 2009) 216, doi:10.1163/ej.9789004155602.i-1849. In substance, the Kosovo Property Agency was an administrative body. However, it was also quasi-judicial and had some reduced competencies. However, it was authorised to assist the courts in resolving war-related claims from the war-between 27 February 1998 and 20 June 1999. Its primary focus was on ownership claims concerning private immovable property, including agricultural and commercial property. Additionally, this Agency handled claims related to property use rights for private immovable property, covering agricultural and commercial holdings, especially when the claimant could not exercise such property rights. UNMIK Regulation no 2006/10 (n 82) art 2. Kosovo Property Agency decisions could be challenged through the judicial process only in the Appeals Panel of the Supreme Court of Kosovo. See, Law of the Republic of Kosovo no 06/L-054 (n 39).

The sociohistorical context in which the legal framework is created, with the aim of restoring rights that existed during the war, indicates that the legislator intended to establish a law specifically for the restitution of property rights held by individuals at the outbreak of the 1998-1999 war. Consequently, any property rights acquired after the eruption of the war-post factum should be addressed through regular civil procedure mechanisms within the framework of the standard civil court system. Case no GSK-KPA-A-217/11 BS v SK [2012] Appeals Panel of the Supreme Court of Kosovo.

According to the relevant legal framework, for an applicant to obtain a positive decision or order, they must present evidence substantiating ownership of private immovable property, encompassing agricultural and commercial holdings. Alternatively, the applicant needed to provide documentation supporting a use right for private immovable property, including agricultural and commercial property, especially in cases where the applicant could not exercise such property rights. UNMIK Regulation no 2006/50 of 16 October 2006 `On the Resolution of Claims relating to Private Immovable Property, Including Agricultural and Commercial Property' art 3.1 <https://www.yumpu.com/ xx/document/view/23938304/rregullorja-e-unmik-ut-2006-50> accessed 15 December 2023. Also, Order no PCC/D/2/2007 Kosovo Property Claims Commission (KPA 2007) 2. But, for applicants, particularly those of Albanian descent, demonstrating proof of ownership posed a significant challenge. Many of their evidential documents were either burned/destroyed or lost during the war. In such cases, their recourse was limited to presenting witnesses or any available evidence associated with the possession of the property. This could include details about the cultivation of the land, crops grown over a specific period, or similar factors.

In instances where restitution was ruled in favour of applicants/claimants, they were granted the prerogative to select from three potential options for implementation: first, the applicant/claimant could opt for immediate repossession of the claimed property; second, the applicant/claimant had the choice to place their property under Kosovo Property

Agency temporary administration through a rental scheme, or the third option involved the closure of the claim file when claimants had sold or voluntarily disposed of the property. UNMIK Regulation no 2006/10 (n 82) art 2.6. After 2008, Law of the Republic of Kosovo no 03/L-079 of 13 June 2008 `Amending UNMIK Regulation 2006/50 on the Resolution of Claims Relating to Private Immovable Property, Including Agricultural and Commercial Property' [2008] Official Gazette of the Republic of Kosovo 32/1.

In 2007, the Kosovo Property Agency claim intake concluded with a total of 42,749 registered claims by the end of the process, and by 2015, the adjudication process was within the mandate. About 10,646 claimed properties had been confirmed as inadmissible because of the damage to the houses and properties during the war, and as such was not conferred within the jurisdiction of these mechanisms to address claims for monetary compensation for damage or destruction of property, as it was explicitly excluded from consideration. Around 37.641 claims (88.1% of the total received) relate to agricultural land, while 943 claims (2.2%) relate to commercial properties and 4.162 (9.7%) to residential property. For 98.8% of claims the claimants claim ownership rights over the claimed properties. See, Kosovo Property Agency, Annual Report 2015 (KPA 2016). This category remains in the so-called “war reparations”.

Compared to the duration of court proceedings in regular courts, it can be asserted that the Kosovo Property Agency successfully fulfilled its mandate because its decisions became executable fifteen days after the date of announcement of the decision to the parties, UNMIK Regulation no 2006/50 (n 92) art 15. As amended by Law of the Republic of Kosovo no 03/L-079 (n 89). providing that no appeal has been filed before Appeals Panel of the Supreme Court of Kosovo. Hence, these decisions were directly executed by the Agency without the supervision of the court for administrative conflicts nor the application of enforcement procedure by the court provided by enforcement law.

In 2016, the Kosovo Property Agency was transformed into the Kosovo Property Comparison and Verification Agency. Law of the Republic of Kosovo no 05/L-010 of 9 June 2016 `On Kosovo Property Comparison and Verification Agency' [2016] Official Gazette of the Republic of Kosova 37/21. The establishment of the Kosovo Property Comparison and Verification Agency came as the result of the Brussels Agreement on Cadastre of 2 September 2011. See, Gashi and Novakovic (n 80). The scope of operation of this mechanism is to solve claims and legacy applications from the Kosovo Property Agency related to private property and continue affecting the authority for enforcement of the remaining decisions of the respective authorities, which are the Kosovo Property Agency or Housing and Property Directorate. In addition, and most importantly, comparing and resolving differences (identify any discrepancies, alterations, or missing information in the documents) between original cadastral documents dated pre-June 1999, which were taken by the Serbian forces during the war, and current cadastral documents in the Republic of Kosovo. Law of the Republic of Kosovo no 05/L-010 (n 92) art 2. The absence of cadastral documents resulted in an unforeseen and challenging situation, creating chaos in property relations that no one had expected or imagined. The resolution of such a complex issue required the intervention of the European Union and the implementation of various mechanisms. It involved the engagement of relevant stakeholders, including cadastral offices, archive institutions, property owners, communities, and religious institutions, to provide input and verify information.

5 PROPERTY CLAIMS DERIVING BY THE SYSTEM OF SOCIAL PROPERTY (AFTER 1945)

The third category of property disputes pertains to social property, which, in alignment with the demands of an open market economy, is scheduled to undergo the privatisation process. But, in the context of Kosovo, this process carries deeper significance and extends beyond purely economic considerations. Privatisation evokes emotional issues stemming from historical events such as confiscations and nationalisations of property after 1945-after the creation of socialist property and several subsequent property transformations. Therefore, this process is considered legally complex and politically difficult, with extensive consequences in an economy involving numerous former owners and employees.⁹⁵ Here, we are addressing the claims of former legitimate owners whose property was confiscated in the past, seeking its eventual return to them.

For illustrative purposes, let us refer to a case--a brief factual background from judicial practice:

“On 23 April 1946, after K.B. had been executed as an enemy of the people, the Peoples Council of in the Municipality I./I. decided, pursuant to Art 29 of the Law on Agrarian Reform, to confiscate ... ha of land belonging to K. B. located in a place known as “Q.”, assigning that land to the district council of the trade union as a sports playground. On 21 December 1955, the confiscated land was given to the Agriculture Cooperative “D” in “I./I” for temporary usage. The People's Council of the Municipality I./I. did not, at that time, render any permanent decision in regard to the concerned land...”⁹⁶

To fulfil the mission of transferring socialist property and socially owned enterprises into private capital through privatisation, the Kosovo Trust Agency was established as a competent body for administration, protection and selling part or all the shares of socially OSCE, Privatization in Kosovo: Judicial Review of Kosovo Trust Agency Matters by the Special Chamber of the Supreme Court of Kosovo (OSCE Pub 2008) 5-6 <https://www.osce.org/kosovo/32012> accessed 15 December 2023. Ondrej Pridal, Agnesa Vezgishi and Timo Knabe (eds), Jurisprudence Digest of the Special Chamber of the Supreme Court of Kosovo on Privatization Agency of Kosovo Related Matters, vol 1 (EULEX Kosovo 2016) 155. owned enterprises and publicly owned enterprises, At this point, the difference between Socially Owned Enterprises and Publicly Owned Enterprises comes to the surface. Socially Owned Enterprises means an enterprise that was created as socially capital managed and administered by workers' councils under the Law On Associated Labour (n 13); Law On Enterprise (n 13). Publicly Owned Enterprises means an enterprise that was created as publicly owned by a public authority (municipality or government) or other public organizations within the territory of Kosovo. Kosovo's legal doctrine also acknowledges and accepts this conceptual difference. See, Iset Morina (ed), Fjalor juridik: e drejta private, e drejta publike, e drejta penale: pravni recnik u privatnom, javnom i krivicnom pravu (Akademia e Drejtesise e Kosoves 2019) 669. and especially with the capacity to conclude contracts, to take, maintain and to sue third parties, as well as to be sued on behalf of SOEs as legal representative. UNMIK Regulation no 2002/12 (n 67). After 2008, with the declaration of independence of Kosovo and after came into the force of the Constitution of 2008, the transfer of competencies occurred. Kosovo Declaration of Independence (n 30); Constitution of the Republic of Kosovo (n 31). Within the scope of this transformation, the Privatization Agency of Kosovo was established as an independent public institution with complete legal liability as legal replacement/successor of the Kosovo Trust Agency with all rights and obligations. The Privatisation Agency, as the Kosovo Trust Agency, has executive competencies to administrate all enterprises in social ownership and assets placed in the territory of Kosovo, regardless of whether these enterprises undergo a transformation because of “repressive measures”. Law of the Republic of Kosovo no 04/L-034 `On the Privatization Agency of Kosovo' [2011] Official Gazette of the Republic of Kosovo 19/1.

For efficiency purposes, the Special Chamber within the Supreme Court of Kosovo was established, UNMIK Regulation no 2002/13 of 13 June 2002 `On the Establishment of a Special Chamber of the Supreme Court of Kosovo on Kosovo Trust Agency Related Matters' <https://www.yumpu.com/en/ document/view/37815826/unmik-regulation-no-2002-13-kosovo-trust-agency> accessed 15 December 2023. After 2008, Law of the Republic of Kosovo no 06/L-086 of 30 May 2019 `On the Special Chamber of the Supreme Court of Kosovo on Privatization Agency Related Matters' [2019] Official Gazette of the Republic of Kosovo 12/1. with exclusive competencies and authority over all cases and proceedings involving any claim alleging ownership or any other right or title/interest concerning assets of an SOE. In this way, property claims and creditors' claims in the liquidation or privatisation proceedings are subject to judicial protection. In the adjudication of these cases, provisions and rules of civil procedure law are applicable. Iset Morina dhe Selim Nik<;i, Komentar i Ligjit per Proceduren Kontestimore (Deutsche Gesellschaft fdr Internationale Zusammenarbeit 2012) 679. Also, it is important to emphasise that when treating cases, the Special Chamber within the Supreme Court applies international standards regarding human rights, especially Prot. 1-1 of the European Court of Human Rights prevails in any Kosovo regulation or law. The Special Chamber within the Supreme Court operates in two instances, and judgements rendered by the second instance are considered final. They can only be argued before the Constitutional Court of the Republic of Kosovo. Ardrit Gashi, `The Constitutional Protection of Property: The Case of Kosovo' (2019) 22(1) SEER Journal for Labour and Social Affairs in Eastern Europe 56, doi:10.5771/1435-2869-2019-1-53.

More precisely, the exclusive authority of the Special Chamber of the Supreme Court includes all the matters over the cases related to:

- Decisions/actions of the former Kosovo Trust Agency or the Privatization Agency of Kosovo;

- Allegations relating to ownership of property over which these Agencies have declared managerial authority by proclaiming the ownership of SOE on such property;

- Allegation relating to any investment, asset, capital, or money under the control of SOE;

- An application made by these Agencies of an SOE that has gone through or is under the liquidation procedures by these Agencies. UNMIK Regulation no 2002/13 (n 101) s 4. After 2008, Law of the Republic of Kosovo no 06/L-086 (n 101) art 5.

The problem is that privatisation in Kosovo was not followed by another important legal process for property rights: the denationalisation process. More precisely, this process involves restating lands to owners whose property was nationalised and confiscated after 1999. Denationalisation remains mainly characteristic and implemented in socialist and communist systems. Jozef M van Brabant, Privatizing Eastern Europe-The Role of Markets and Ownership in the Transition (Kluwer Academic Pub 1992) 116.

Today, there is a commonly known consensus among the societies of the countries in transition that the expropriation of assets under socialist regimes was not legitimate. Herbert Brncker, Privatization in Eastern Germany: A Neo-Institutional Analysis (Frank Cass 1997) 84. The failure to implement this process, as a consequence, created a huge number of property disputes. Certainly, from the perspective of property rights protection and to avoid injustice from the past, it would be more proper to conduct the denationalisation process prior to the privatisation process or at least in parallel.

Kosovo, as a part of the former socialist system of Yugoslavia after liberation, did not promulgate any law regarding property restitution or denationalisation. As a result, this kind of property dispute was presented in front of the Special Chamber within the Supreme Court because there were no other legal solutions. Since its commencement in June 2003, the Special Chamber of the Supreme Court of Kosovo has encountered a total of 42,593 cases, successfully resolving 20,644 among them. Presently, there are approximately 21,949 pending cases before the Special Chamber of the Supreme Court, originating from disputes arising between parties engaged in the privatization of socially owned enterprises and their assets. See, Pridal, Vezgishi and Knabe (n 96) [4]. Formally, the Special Chamber of the Supreme Court has exclusive competence for adjudicating these claims. However, there is a substantial legal gap in Kosovo's legal system.

Unusually, when adjudicating this nature of claims, the Special Chamber of the Supreme Court referred to the institute of prescription. A legal institute of property law which comes from Roman law (usucapion for movables, praescriptio longi temporis for immovables) as a mode of acquisition of property - the acquisition of title to property as a result of lapse of time. See, Adolf Berger, Encyclopedic Dictionary of Roman Law (American Philosophical Society 1953) 645; Reinhard Zimmermann, Comparative Foundations of a European Law of Set-Off and Prescription (CUP 2002) 69. The legal period for the acquisition of ownership through prescription for social entities (municipalities, organisations, entities, SOEs) was very short. If a property became an asset in social/public ownership without any legal foundations or basis, its recovery could be sought within five years from the date a previous owner learned about the change but no later than ten years after the factual change of the property. Law On Associated Labour (n 9) art 268. On this basis, the Special Chamber of the Supreme Court initiated the process of granting rights to social entities.

However, questions arose as to whether this interpretation was fair and just, particularly when the justifications of damaged parties that they were politically persecuted by the system and could not refer to courts run by the same politics were not taken into consideration. Supreme Court decided against claimant on reasoning that in the course of the socialist regime did not exhaust legal remedies. See; Case MT v Department of Kosovo Roads Rev no 43/2011 [2019] Supreme Court of the Republic of Kosovo. Logically, this inability of damaged parties automatically led to the commencement of acquisition prescription in favour of legal persons (municipalities, organisations, entities, SOEs) created by the socialist system. Recognising that this approach constituted a second injustice for the injured parties, the Special Chamber of the Supreme Court shifted its method of argumentation, and finally, the Special Chamber of the Supreme Court accepted that without a specific law which gives authorisation to Kosovo authorities to undertake actions regarding confiscation and nationalisation, the court could not decide over restitution of claimed property. Case no AC-I-15-0249 HB v Kosovo Trust Agency [2016] Special Chamber of the Supreme Court of the Republic of Kosovo. As well, without a definitive law or decision issued by a competent public organ-legislature in this case, which asserts acts of confiscations in the past as null and void, applicants cannot successfully restore confiscated property.

Similarly, the Constitutional Court of the Republic of Kosovo, in adjudicating a case on property restitution, recommended to the applicants initially to file a claim before the Special Chamber of the Supreme Court or to any other competent special court with the mandate to decide over this kind of property claims, without any constitutional recourse or recommendation. Case no KI02/09 KK v Ministry of Agriculture [2010] Constitutional Court of the Republic of Kosovo. The court later acknowledged the absence of a specific law in the Republic of Kosovo addressing property restitution. Consequently, claims for property restitution cannot rely on the protections outlined in Protocol 1-1 of the European Court of Human Rights, with necessary modifications-mutatis mutandis, the safeguards articulated in Article 46 (Protection of Property) of the Constitution. This limitation arises from the fact that property restitution claims cannot be deemed a “legitimate expectation” without a legal framework governing property restitution, as elucidated earlier. Case no KI78/18 PM v the Appellate Panel of the Special Chamber of the Supreme Court of Kosovo on Privatization Agency of Kosovo Related Matters [2019] Constitutional Court of the Republic of Kosovo. This inherently implies that these parties still face obstacles in obtaining justice, and legally, they do not have any legal instrument available to realise their rights.

CONCLUSIONS

A comprehensive understanding of property disputes and property law in general requires an examination of their origin and progression. Insight into the historical factors is essential for intelligently comprehending the evolution of this legal institution, the nature of property disputes, and their proper resolution.

Concerning property disputes stemming from “repressive measures" (1990-1998), a fundamental lesson drawn from the case of Kosovo emphasises how discrimination based on ethnicity can irreparably undermine property relations. Indeed, in the truest sense of the word, this situation amounted to apartheid. Though these violations of property rights may belong to the past, their repercussions persist in the present day. Still, justice eludes the victims of that time. The institutions have consistently emphasised that, as new entities, they lack the budgetary and financial capacity to compensate for the illegal actions of the regime after 1990. Corrective justice must be instituted for these citizens as well. Achieving substantive corrective justice is inseparable from its consequential impact on those who reaped the advantages of apartheid politics. The last hope and potential opportunity for compensations at this stage lie in their incorporation into the category of war reparations- whenever there is a demand for them.

A comparable scenario, marked by an absence of response or justice, is also evident in the realm of property claims that derived after the events of 1945. This category of claims is largely being overlooked. Even so, there are no surviving former owners, and the number of direct heirs is diminishing rapidly, while third-generation heirs may face various problems in securing the right information and evidence. Currently, the constitutional framework of the Republic of Kosovo is founded on key principles, including but not limited to freedom, democracy, equality, respect for human rights and freedoms, the rule of law, the right to property, social justice, pluralism, etc. A glimmer of hope emerged with the establishment of the Constitutional Court of the Republic of Kosovo. However, the Constitutional Court assumed a passive role in this matter. It aligned with the European Court of Human Rights stance, affirming that it does not compel Contracting States to pass a final law on the restitution of property. It granted considerable latitude to the Contracting States in defining the parameters of property restitution and determining the associated conditions. Hence, in this sense and in alignment with these principles, particularly those of social justice and the right to property, it is imperative for Kosovo to promptly enact legislation that addresses the restitution process.

From 1999 to 2008, the international administration (UNMIK) had legislative, executive, and judicial power and determined which laws were applicable. The issue arose from the fact that the UNMIK displayed a lack of readiness to address historical injustices or, at the very least, mitigate the repercussions of the past. For UNMIK, the standard that all property, including residential property, commercial and agricultural lands, enterprises, and other socially owned assets, should have a clear and rightful possessor to take effective possession of their property was valid by not going back to the past and origin of property disputes and problems. This is evidenced by how the property claims derived after the war (27 February 1998 - 20 June 1999) and their successful handling. This occurred because the process was more streamlined for UNMIK; they possessed international experience, or at least the potential to acquire it. Additionally, they had more advanced logistics and, crucially, access to information through liaison offices and diplomatic channels. In the current context, Kosovo still encounters substantial challenges in meeting these prerequisites.

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