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United Nations Committee on Economic, Social and Cultural Rights - State Party Reports |
THE GOVERNMENT OF THE REPUBLIC OF SERBIA
SECOND PERIODICAL REPORT ON IMPLEMENTATION OF THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS
ANNEX 1
1. The Committee on Economic, Social and Cultural Rights at its 34th session, in the eleventh, twelfth and thirteenth meeting held on May 2 and 3, 2005, discussed the Initial Report on Implementation of the International Covenant on Economic, Social and Cultural Rights in the state union of Serbia and Montenegro in the period between 1990 and 2002[1].
2. Having taken into consideration the explanation offered by the national delegation of Serbia and Montenegro[2] at the time, about the inability to submit report on performance of their duties related to the state of human rights in Kosovo on the ground, in its Concluding Observations[3], the Committee on Economic, Social and Cultural Rights specified the following:
“The Committee takes note of the State party’s explanation about its inability to report on
measures adopted and progress made in achieving the observance of the rights recognized in the Covenant with regard to the province of Kosovo and Metohija, where civil authority is exercised by the United Nations Interim Administration Mission in Kosovo under Security Council resolution 1244 (1999) of 10 June 1999. The State party suggested that the Committee should invite the Mission to submit to the Committee a supplementary report on the implementation of the Covenant in Kosovo. The Committee, however, calls upon the State party to request the Secretary-General to provide it with information collected by the Mission, in accordance with paragraph 11 (j) of Security Council resolution 1244 (1999), on the enjoyment in Kosovo since 1999 of the rights recognized in the Covenant and, without prejudice to the legal status of Kosovo, on the basis of such information to supplement its initial report to the Committee. In this regard, the Committee requests the State party, in cooperation with and with assistance from
the Mission and local civil authorities in Kosovo, to submit the additional information with regard to the implementation of the Covenant in Kosovo by 30 June 2006.”
3. In accordance with the recommendations by the Committee, the Republic of Serbia on June 1, 2005, sent a letter to H.E. Mr. Kofi Annan, the then Secretary- General of the United Nations, drawing attention to the conclusion of the Committee regarding the submission of the Report on the Implementation of the ICESCR (hereinafter: The Covenant) in Kosovo and Metohija.
4. In his reply of 23, September 2005, the Secretary-General wrote that UNMIK had initiated the process of preparing a report on situation of human rights in Kosovo since June, 1999. He also said that “[w]hile ... it is not legally bound by the reporting obligations (under the Covenant), UNMIK is nonetheless ready to submit a report directly to the Committee on Economic, Social and Cultural Rights on the implementation of the Covenant in Kosovo. In doing so, UNMIK wull be acting in recognition of its responsibilities under Security Council Resolution 1244 (1999) to protect and promote human rights in Kosovo.“
5. Acting in recognition of its responsibilities under the UN Security Council Resolution 1244 to protect and promote human rights in Kosovo and Metohija and its obligation under the Constitutional Framework to ensure the observance of internationally recognized human rights and fundamental freedoms, in October 2007, UNMIK submitted to the Committee on Economic, Social and Cultural Rights the Document on the Implementation of the International Covenant on Economic, Social and Cultural Rights in Kosovo since 1999[4].
6. The comments and remarks of the Republic of Serbia on the UNMIK Report are the following:
7. The competent authorities of the Republic of Serbia carefully examined the UNMIK Document on the implementation of the Covenant in Kosovo. The Report is extensive and focused primarily on the description of the legislation and partly the activities UNMIK carried out in that regard. In fact, the Report did not reflect the actual situation on the ground. It did not rely on the relevant statistical data nor did it describe measures carried out to promote the state of human rights there.
8. While referring to a number of laws and regulations regarding human rights, UNMIK attempted to draw attention to the efforts it invested in creating the legal system. As also confirmed by numerous expert reports, the legal system in Kosovo and Metohija is characterized by sloppiness and general confusion, overlapping or lack of competence, fields regulated by more than one legal regulation, a great many outdated or anachronistic laws and by-laws and vague and inapplicable rules on mandatory legislation. In legal practice in Kosovo and Metohija, even though a provision is drafted and adopted in cooperation with UNMIK, its implementation is often delayed for various reasons. In fact, majority of laws passed by the Kosovo Parliament require adoption of by-laws, hiring or training experts and the administrative staff who will apply or oversee their implementation and create material and technical conditions for their practical implementation.
9. In view of the above, the general level of human rights in Kosovo and Metohija is still below minimum of international standards. Serious analysis shows there are many problems especially in the fields of discrimination and property rights.
10. The lack of firmer security guarantees still affects mostly members of minority groups whose freedom of movement is restricted, thus limiting their access to health, education and other public services. Ethnic tensions, based on negative experiences with violence, contribute to persisting feeling of insecurity among Serbs and members of other non-Albanian communities. Such atmosphere contributes greatly to extremely slow process of reintegration of internally displaced persons to Kosovo and Metohija.
11. The Republic of Serbia expresses serious concern over delayed publication of UNMIK document or UNMIK documents in official languages used in the territory of Kosovo and Metohija – Serbian and Albanian.
12. Additional concern in this sense is caused by bad quality of submitted translation into Serbian language, which inevitably implies that this issue of significant importance for minority communities was approached with obviously insufficiently serious and unprofessional manner. All the abovementioned causes reasonable doubt in the sincerity of intentions of UNMIK to include in the process of the Document’s consideration the external, constructive criticism by the non-government sector and broader public. The obviously delayed publication of the Report in the language of minorities contravenes the generally recognized right to use one’s own language and runs contrary to the spirit of the Covenant[5].
13. One of the main problems regarding implementation of provisions of the Covenant and the rights it guarantees in Kosovo and Metohija is the fact that the obligation of its direct implementation by the public officials has not been explicitly included in any of the relevant legislation so far.
14. The UN Security Council Resolution 1244 established as one of the main responsibilities of UNMIK “protection and promotion of human rights.“[6] Within its mandate, through Regulation 1999/24[7] UNMIK defined that international human rights standards, including the ones contained in the Covenant that are an integral part of comprehensive legal corpus applicable in Kosovo, are mandatory to all persons undertaking public duties or holding public office in Kosovo and Metohija.[8]
15. While enumerating applicable international human rights instruments, UNMIK Regulation No. 2001/9 on the Constitutional Framework for Provisional Self-Government in Kosovo[9] did not explicitly impose the equivalent obligation upon the Provisional Institutions of Self-Government the equivalent obligation to implement the Covenant. In this context, it should be noted that, even despite the omission in the list, the Covenant is still directly applicable in Kosovo and Metohija. Apart from the abovementioned Regulation 1999/24, from the pure terminological perspective, the principles contained in the Covenant are not excluded from the direct implementation in Kosovo and Metohija, they are just not explicitly mentioned. Namely, the text of the Article 3.2 of Regulation 2001/9 provides that the “Provisional Institutions of Self-Government shall observe and ensure internationally recognized human rights and fundamental freedoms, including those rights and freedoms set forth in... [emphasis added]“. In accordance with that, despite the seemingly limiting provisions of Articles 3.2 and 3.3[10], the list of applicable standards and protected human rights is virtually open.
16. Apart from that, one should not forget that the relevant domestic legislation, recognized as applicable in Kosovo and Metohija in accordance with UNMIK’s Regulation 1999/24[11], includes this Covenant, on the ground of its raticifaction on 2 June 1971 by the former Socialist Federal Republic of Yugoslavia. Article 210 of the 1974 Constitution of SFR Yugoslavia established direct justiciability of ratified and published international agreements.
17. Regardless of the issue of legality and legitimacy of any transfer of responsibility to other authorities, pursuant to the existing legal framework, UNMIK is obliged to respect and promote the rights guaranteed by the Covenant. The observed trend towards gradual exclusion of the Covenant from the corpus of directly applicable legal instruments in Kosovo and Metohija causes reasonable suspicion in the readiness or existence of political will on the part of the existing authorities in Kosovo and Metohija to provide consistent protection of social, economic and cultural rights. Such approach requires precise declaration of reasons and explanation of such behavior, as well as a resolute action aimed at establishing legal security.
18. One of the obstacles to full protection of rights guaranteed by the Covenant is also the lack of structural impartiality by the Human Rights Advisory Panel, as well as the fact that the decisions of this body are not legally binding. Human Rights Advisory Panel had the duty of publishing “conclusions” on possible violations of human rights (including the ones guaranteed by the Pact[12]) committed by the UNMIK[13] (which appoints members of Human Rights Advisory Panel) that had occurred in the period after 23 April 2005[14], and, “where necessary, makes recommendations“. Such conclusions and recommendations are then submitted to SRSG, who, pursuant to Article 17.3 of the Regulation, has “exclusive authority and discretion“ to decide whether to act on those findings. Thus, the institution initially based on idea of independence and impartiality[15] is completely devoid of the “necessary authority and independence” from UNMIK in carrying out its mandate“[16].
19. Although Section 10 of Regulation 2006/12, which regulates the possibility that the affected party submit complaints to Human Rights Advisory Panel, took effect on 23 April 2006, Human Rights Advisory Panel was practically not functional until October 2007. The formal legal establishment of Human Rights Advisory Panel was not accompanied by the practical measures which would make submitting of complaints possible. This is dye to, among other things, lack of organized information management, which would allow the interested party to learn about the existence and mandate of this mechanism. As a result of the belated and sporadic media campaign, for the first 18 months of its existence, Human Rights Advisory Panel received only 14 complaints.[17] Members of the Human Rights Advisory Panel were appointed only in October 2007; they held their first session in November, while the Work Rule Book was adopted on 4 February 2008.[18] Unjustified delay of establishing full functionality of Human Rights Advisory Panel, together with the already existing problem of its decision not being legally binding, additionally questioned the possibility of effective protection of economic, social and cultural rights in Kosovo and Metohija.
20. Another problem regarding availability of Human Rights Advisory Panel to the victims of human rights violations is the six-month deadline defined by Article 3.1 of Regulation 2006/12 after the final decision (by UNMIK institutions) for addressing the Human Rights Advisory Panel, as a temporal admissibility criterion for submitting a complaint. If the contested decisions of competent bodies were made at the early period of formal existence of Human Rights Advisory Panel, during which there was no practical possibility for submitting complaints or an adequate public information campaign, the interested parties were, due to expired deadline, objectively prevented from addressing the institution in search of legal remedy.
21. During the period when Human Rights Advisory Panel practically did not function, the affected parties did not have the opportunity to refer to the Ombudsperson Institution in Kosovo for an equivalent protection either. The reason is the fact that, by UNMIK Regulation 2006/6[19] taking effect on 16 February 2006, the jurisdiction of the Ombudsperson Institution in Kosovo to determine alleged violations of human rights committed by UNMIK was fully eliminated, leaving it in charge of only determining human rights violations committed by the Provisional Institution of Self-Government.
22. In such context, between Regulation 2006/6 taking effect on 16 February 2006 and the actual functionality of Human Rights Advisory Panel, October 2007 at the earliest, potentially interested parties were absolutely devoid of any protection in cases of violation of by UNMIK of, among others, their economic, social and cultural rights in Kosovo and Metohija.
23. After Human Rights Advisory Panel stopped working, EULEX founded its own independent mechanism for the protection of human rights under the name Human Rights Review Panel. The Panel was founded by the decisions of the European Union on 20 November 2009. Human Rights Advisory Panel has a restricted mandate and can receive complaints only from those who believe to be victims of human rights violation by the EULEX mission while carrying out its mandate.
24. According to the news published on the internet presentation of Human Rights Advisory Panel, the Panel started working on May 2010. The then acting chief of the mission Roy Reeve appointed three elected members of the Panel for the period of a year. At the first meeting, the Panel discussed organizational and working aspects and appointed Antonio Balsamo as the chairman. It was scheduled that the first regular session of the Human Rights Advisory Panel be held between 9 and 11 June 2010, and then to regularly meet in the offices it was supposed to get. The further work of this Panel is impossible to follow because their internet presentation is not active.
Prohibition of Discrimination
25. On 30 July 2004, the Assembly of Kosovo adopted the Anti-Discrimination Law, that was promulgated on 20 August of the same year by means of UNMIK Regulation 2004/32.[20] This law was passed in accordance with the highest standards of protection of equality[21]. The Anti-Discrimination Law prohibits all forms of discrimination[22] and protects individuals not only from the discriminatory practice of public authorities, but also from discriminatory practices of natural and legal persons (vertical and horizontal effects)[23]. Pursuant to its ratione materiae, the Anti-Discrimination Law prohibits discrimination in access to and exercise of any right defined by applicable legal regulation in the Province[24], provides special protection to minority communities[25], lays down legal grounds for affirmative action[26] and, most importantly, establishes a rather elaborate system of sanctions against any violations of its provisions[27]. Unfortunately, neither UNMIK nor the Provisional Institutions of Self-Government have undertaken measures necessary for the implementation and application of this otherwise high-quality legal text.
26. Legal protection envisaged by the Anti-Discrimination Law aimed at preventing even the most subtle forms of discrimination remains in stark contrast with everyday examples of direct discrimination which prevents individuals in Kosovo from exercising their rights guaranteed by the Covenant[28]. In fact, it is difficult even to begin an analysis of the Anti-Discrimination Act concerning the realization of economic, cultural and social rights in a situation when not even fundamental preconditions for effectiveness of its provisions have been met. The level of lack of carrying out and implementation of this Law is such that one may reasonably argue the law has not yet taken root in the Kosovo judicial system at all[29].
27. Before analyzing the above mentioned obstacles for its implementation, we should point out the incomprehensibility of the text of laws and by-laws for its implementation. A mere glance at the Serbian version of the text of the Anti-Discrimination Law indicates a violation of the very principle on which it was founded – the prohibition of language discrimination.
28. Namely, the text of the Anti-Discrimination Law in Serbian does not respect the rules of Serbian language and replaces certain letters by their equivalents in English, while the translation itself into Serbia is of a very poor quality.[30] The whole situation becomes much worse with the basic by-law for implementation of the Anti-Discrimination Law. There are so many grammatical and terminological errors in the Serbian version of the Administrative Instruction No. 04/2006 on Implementation of the Anti-Discrimination Law[31] (hereinafter: “Administrative Instruction No. 04/2006”) that every attempt to grasp the meaning of provisions of this legal text remains futile[32].
29. The confusion created by the text of Administrative Instruction No. 04/2006 reaches its momentum once we notice that the length of the provision from Section 6 significantly varies depending on whether we read the article in Albanian, English or Serbian. While the English text of the Instruction contains a single paragraph, Albanian and Serbian versions of Section 6 have two paragraphs. At the same time, Serbian and Albanian versions of Paragraph 1 in this section are different.
30. When comparing all three language versions of Administrative Instruction No. 04/2006, we conclude that the text in Serbian language is of the poorest quality[33]. This not only harshly violates the right of citizens of Kosovo who speak Serbian to acquaint themselves with their rights and obligations in a timely fashion, but it also violates the fundamental prohibition of the Anti-Discrimination Law whose implementation this administrative instructions is supposed to facilitate – the prohibition of discrimination on the grounds of language.
31. Not even the long-awaited Administrative Instruction No. 04/2006 did remove confusion about what institutions and bodies should be implementing the Anti-Discrimination Law, although that was its purpose in the first place: ”The objective of this Administrative Instruction is to set the practical rules, structural and physical facilities to apply the Anti-Discrimination Law.”[34] On the contrary, Administrative Instruction No. 04/2006 introduces additional confusion when Section 3 regulates this issue in a completely new way, by establishing the Office for Good Governance and Human Rights Unit within competent ministries as ”bodies responsible for promotion of equal treatment in the Provisional Institutions of Self-Government in Kosovo”. What we could conclude by broader interpretation of provisions of this by-law is that the said bodies have jurisdiction only for the actions of Provisional Institutions of Self-Government which they are a part of.
32. Despite legal solutions which significantly make the position of the victims of discrimination in the process easier[35], the Anti-Discrimination Law has not come to legal life yet, which is further supported by the fact that so far there has not been a single court decision quoting its provisions[36]. This may be seen as the consequence of inactivity by the international administration in Kosovo when it comes to implementation of the Anti-Discrimination Law.
33. The special fund, intended to finance legal counselling to the victims of discrimination of Kosovo and Metohija, has not been established to date, although Section 9, Paragraph 4 proscribes that ”All monies collected through the imposition of the penalties mentioned in paragraph 9.2.(b) shall be placed in a fund which will be established for the purposes of supplying free legal assistance to natural or legal persons who claim violations of the right to equal treatment under this Law.” This way the lack of legal aid system intended for the victims of discrimination has become at the same time both a cause and effect of the failure to implement the Anti-Discrimination Act.
34. Failure to implement the Anti-Discrimination Law is also a result of the fact that the public is not aware of the content and scope of its provisions. Not only did the shortage of information affect the segment of population which is most frequently exposed to discriminatory acts of public and private entities, such as minority communities, women, disabled persons, etc., but the content of its provisions remains unfamiliar even to most of judges and lawyers in Kosovo and Metohija[37]. Non-government organizations are not acquainted with it any better either. The provisions of the Law which allow organizations of civil society to “institute or support legal actions either on behalf of a claimant or claimants, with their consent” remains only potentially powerful but unused tool at the disposal of the civilian sector[38]. Insufficient number of superficially carried out campaigns on protection against discrimination, as well as the lack of educational programs on the fight against discrimination intended for judges, lawyers and employees of state-owned companies, considerably contributed to this Law not taking root.
35. One of the more progressive features of the Anti-Discrimination Law is the obligation of ensuring not only equal opportunity, but also the equal opportunity for all people who live in Kosovo and Metohija to realize those opportunities. Thus in Section 6, Paragraph 2, the legislator stipulates that all persons exercising a public function shall ensure that that legal or natural persons awarded a public contract, loan, grant or other benefit, “will execute a document which states that they will act in compliance with this Law and will respect and promote a non-discrimination policy, as they carry out their obligations related to such a public contract, loan, grant, or other benefit.” Also, the following paragraph of the same Section stipulates that ”If the party, which obtains a public contract, loan, grant or other benefit as referred to in paragraph 6.2, violates any of the provisions of this law, such as public contract, loan, grant or other benefit, shall be declared null and void by the body that awarded it.”[39]
36. Implemented together with the prohibition of indirect discrimination (Section 3.б) and prohibition of discrimination in employment (Section 4.а), the said provisions become a powerful tool for preventing segregation. However, there is no record about a single case of awarding a public contract or other benefits where the relevant legal person committed to ensure measures for prevention of discrimination. This applies equally for tenders organized by international administration, as well as to those organized by the Provisional Institutions of Self-Government. This why discrimination is still dominant in Kosovo and Metohija in the closing of public tenders, in public companies and in access to employment, and minority communities and especially endangered groups remain ”disproportionately affected” by high level of unemployment and poverty.[40]
37. ”The principle of fair representation of all persons and all the members of communities to employment in the frame of public bodies of all levels” is one of the three fundamental principles of this Law.[41] Its realization is practically prevented by the lack of reliable statistic data. As the international administrator himself admits, “[b]ecause of lack of data it is difficult to assess, both at the central and the local level, the degree of discrimination against women, children, minority communities, disabled persons and other vulnerable groups”.[42] On the other hand, without reliable statistic data, every strategy for the fight against inequality which exists in Kosovo and Metohija is only an illusion of work on the fight against discrimination. As an illustration of this claim there is the ”Strategy for Establishing Proportional Representation of Communities” from 2006 which has not been implemented to this very day.[43] Moreover, the misconception of affirmative action and attempts to use them as indicators that the ”Standards for Kosovo”[44] have been met, leads to perceiving the issue of employing the members of communities in public services in Kosovo has ”too often been seen as a question of filling a quota rather than one of providing meaningful participation”.[45] The lack of reliable statistical data undermines the likelihood of success of potential anti-discrimination litigations, thus shedding light on provision contained in Section 8, Paragraph 2, which prescribes that ”a complainant may establish or defend their case of discrimination by any means, including on the basis of statistical evidence.”
38. In its essence, the privatisation is a political issue and can be defined as transfer of property or public sector’s production into a private ownership, which is, in majority of democratic systems, subject of fierce debates among politicians, general and expert public. In Kosovo, UNMIK opted as soon as in autumn 1999 for privatisation as the main approach to resolving problems in reviving Kosovo’s economy, without consulting founders of public companies and titular owners of state-owned property, and without thorough political, social or economic discussion on the best strategy for concrete situation. There has not been, then nor later, an extensive analysis of economic and social consequences of privatisation. When it comes to protection of the right to work and within work, property rights of owners of privatized property, poverty, education and economy in general, we can say that the Kosovo model of privatization implemented by the international community through Kosovo Trust Agency has no legitimacy in the sense of broader consensus of politicians and expert and general public, has no legitimacy when it comes to protection of property rights of owners of privatized property, it violates or at least does not protect but mostly endangers rights of workers in privatized companies on an ethnic basis and finally, does not have the estimation of effect on socio-economical situation, or any conclusion on the added value of its effect whatoever.
39. Section 6 of the UNMIK Regulation 1999/01 explicitly puts state-owned enterprises under UNMIK administration and “property of, or registered in the name of the Federal Republic of Yugoslavia or the Republic of Serbia or any of its organs” (monies, bank accounts, and other property). In addition, pursuant to the relevant UNMIK regulations, Special Representative of the Secretary-General (SRSG) retains full and exclusive rights (reserved powers) and responsibility to administer publicly-, state- and socially-owned property in accordance with the relevant UNMIK legislation in force, in cooperation with the Provisional Institutions of Self-Government.[46] In this regard we should also point out that this regulation does not envisage UNMIK authority to expropriate publicly-, state- or socially-owned property. The second international mission which exists in Kosovo, the European Union Rule of Rights Mission[47], has no mandate to deal with property issues except in case they are subject of a criminal act.
40. The privatisation in Kosovo is carried out by the Kosovo Trust Agency, pursuant to the mandate it received under UNMIK Regulation 2002/12 to administer public and socially-owned enterprises in Kosovo.[48] For a better understanding of circumstances under which the Kosovo Trust Agency works, we must take into consideration the corpus of the so-called applicable law, which sets 22 March 1989 as the cut-off date regarding the former legislation of the SFRY, the Socialist Republic of Serbia, and the Autonomous Province of Kosovo and Metohija. However, the first privatizations in the Republic of Serbia (including the Province of Kosovo and Metohija) began only in early 1990s, pursuant to the laws enacted only after 1989, meaning that those laws did not ipso facto entered the corpus of currently applicable laws.
41. Section 5.3 of Regulation 2002/12 stipulates that a “subsequent transformation of an Enterprise into a different business organization form shall affect its status as a Socially-owned Enterprise only if such transformation either occurred before 22 March 1989 or, if it occurred thereafter, was: (a) Based on Applicable Law; and (b) Implemented in a non-discriminatory manner.” Unfortunately, the Regulation does not specify clearly criteria which determine what makes a discrimination and what not, nor the organ in charge of such decisions, which practically paves way for arbitrary action. That is why Kosovo Trust Agency carried out privatisation of already privatised enterprises, which even had a clear sign in their company abbreviations DOO (in English: ltd.) or AD (in English: JSC), declaring them companies with limited liability or joint stock companies, respectively. Kosovo Trust Agency did not perform due diligence, nor did it establish who is the legal owner of the property, which is unusual and inadmissible in the field of legal transactions.[49]
42. Such linear application of Regulation 2002/12 represents factual discrimination of he ownership rights, which the OSCE Mission in Kosovo writes about in its Report on Privatization in Kosovo: “The OSCE is concerned by the complexity of the Regulations and Administrative Directions related to the privatization process.“[50]. “The legislative rules governing the privatization process stipulate that the Trust Agency may sell property owned by third parties and only must pay compensation to the owners from the sales proceeds”, which “may violate international human rights standards”.[51] In other words, a privatization as designed by UNMIK and performed by Kosovo Trust Agency may lead to expropriation without reason and without necessary measures of protection of the owner in the sense of just compensation for expropriated property. We remind you that the Supreme Court of Kosovo in its decision in 2008 found that certain provisions on privatisation violate Article 1 of the Protocol 1 and Article 6 of the ECHR and abolished them.[52]
43. In addition to the discrimination of owners and their ownership rights, the privatisation in Kosovo and Metohija is also discriminatory against employees of privatised enterprises who are entitled to a 20 per share of the proceeds[53] received from the sale.[54]
44. The process of privatization of socially-owned enterprises in Kosovo and Metohija, as designed, violates the right to work and represents a major and insurmountable obstacle to sustainable repatriation of internally displaced persons, coming from any of the non-Albanian communities, and their subsequent integration in Kosovo and Metohija. This conclusion is based on the fact that repatriates or internally displaced persons were not given opportunity to participate in the process of privatization because of the following restrictions: lack of information[55], lack of legal counselling and aid[56], difficulties in obtaining necessary documentation[57], language barriers[58], high expenses which all former employees who try to exercise their right to participation in the profit from sale of privatized enterprises are exposed to[59]. The privatisation plan, procedures and policies set by UNMIK and the Kosovo Trust Agency failed to secure adequate preparation of rules on non-discrimination in the transformed enterprises.
45. The same problem was observed by Mr. Kai Eide, the Special Envoy of the United Nations Secretary-General for Kosovo, who says: “[...] It is important to take into account the effects of this process on the different ethnic groups. The privatization process could lead to discrimination in employment along ethnic lines and affect the economic sustainability of minority communities. This process must move forward, but in a way which safeguards the interests of the minority population during and after privatization.” [60]
46. The process of privatization in Kosovo and Metohija was launched in 2003, namely, years after exodus of the non-Albanian communities from Kosovo which was a result of imminent danger, threats or ethnic violence they had been exposed to. The exodus and its consequences[61] were not taken into consideration when the UNMIK Regulation 2003/13 was drafted. Section 10.4 of UNMIK Regulation 2003/13 stipulates that an employee is eligible to a 20 per cent share if registered as an employee with the Socially-owned Enterprise at the time of privatisation (emphasis added), therefore, in 2003[62], and is established to have been on the payroll of the enterprise for no less than three years. This provision has, therefore, effectively prevented the internally displaced persons to take part in the process of privatization of enterprises in which they worked before they were forced to go into displacement.
47. Section 10.4 of UNMIK Regulation 2003/13, changed and amended by Section 1.B of the UNMIK Regulation 2004/45, grants an opportunity to the employees who claim they would have been registered and employed by the given enterprise as eligible had they not been subject to discrimination, to submit a complaint to the Special Chamber of Supreme Court of Kosovo. Section 10.6 (b) of UNMIK Regulation 2003/13 stipulates that any complaint “filed with the Special Chamber on the grounds of discrimination as reason for being excluded from the list of eligible employees has to be accompanied by documentary evidence of the alleged discrimination.” The competent Special Chamber of the Supreme Court of Kosovo found that the said provision is in contravention contrary with the non-discrimination principle contained in Section 14. of the European Convention on Human Rights, Section 221.4 of the Law on Civil Procedure and Section 8 of the Anti-Discrimination Law, as applicable in Kosovo and Metohija.
48. Furthermore, there are few more procedural obstacles which make internally displaced persons difficult to address the Special Chamber. Complaints are to be filed to the Special Chamber within 20 days of final publication in the media [...] of official list of eligible employees to be paid by the Agency“. It is next to impossible for the internally displaced people to do this within the given deadline since most often they are not informed through media in time, they have serious difficulties in obtaining the necessary documentation and they have to travel far from the place they have been displaced to in order to file a complaint in the first place. In addition, the lack of pro bono legal aid for potential claimants in the time of intensive privatisation and problems related to use of language in the privatisation process additionally limit the access of internally displaced persons to such legal remedy.[63]
49. It is important to emphasize that, pursuant to UNMIK Regulation 2003/13, employees have no right to see “the list of eligible employees” before it is published in media, and therefore don’t have the opportunity to lodge a complaint against the list prior to the court procedure before the Special Chamber of the Supreme Court of Kosovo. In addition, lists of eligible employees are compiled by unions which are mostly mono-ethnic and usually do not have a single member to represent minority communities and protect their interests. Due to this, internally displaced persons have small or no chances of establishing authenticity of the list and are usually forced to launch the court procedure in order to dispute the validity of those lists.
50. Another problem is the procedure for reorganisation or liquidation of socially-owned enterprises.[64] Among the criteria for evaluation of the reorganisation plans from potential buyers, UNMIK Regulation 2005/48 in its Section 20.1 Paragraph (ј) explicitly gives priority to “intention to retain or [...] employees and the approximate numbers and categories of employees to be retained by the Enterprise“. In other words, this section protects the rights of employees in the privatisation process. It also seems that, in addition to protecting employees in privatised enterprises, this provision was most likely aimed at preserving multiethnic make-up of labour force in privatised companies. However, Regulation 2003/13 does not take into consideration the unequal ethnic make-up of employees in socially-owned enterprises in Kosovo or the problem of mass displacement of workers from the ranks of ethnic minorities who used to work in these enterprises. Applied this way, this provision actually indirectly discriminates employees from minority communities, by neglecting the fact that the ethnic structure in those enterprises was changed completely and by forcibly.
51. UNMIK’s failure to establish legal mechanisms to remedy this act and its tacit permission to let socially-owned enterprises employ new workers without any attempt to reinstate former employees[65] whose employment was forcibly discontinued (as proposed by Serbian Government on several occasions) represent an act of violation of the Covenant by failure to act as defined in Sections 11 and 15 of Maastricht Guidelines. Noting that UNMIK did nothing in this matter, it obviously violated the duty to act and duty to achieve result from Section 7 of Maastricht Guidelines.
52. There are no legal provisions in the legal framework applicable in Kosovo and Metohija which provide appropriate representation of the non-Albanian communities in public enterprises. The only exception is Section 2.3 of UNMIK Regulation 1999/12 on the Provision of Postal and Telecommunications Services in Kosovo[66] which says that “[Post and Telecommunications of Kosovo] PTK shall apply non-discriminatory personnel policies, which shall ensure that the composition of PTK’s personnel reflects the multi-ethnic character of communities in Kosovo.”
53. Lack of relevant regulation is clearly reflected in the statistics on ethnic composition of labour in public enterprises. Ever present direct and indirect employment discrimination means that public companies do not reflect the ethnic breakdown of the population in the Province at all (see Table below). Further statistic data indicate lack of any measures of affirmative action, not even in publicly-owned companies, on improving the right of communities through organised and targeted employment of members of marginalised communities, such as ethnic minorities, women, disabled persons. Lately, it has been observed that certain advertisements for filling up certain jobs contain a clause that the employer is greeting applications sent in by women, disabled persons or members of minority communities, but the practice shows that such, so-called affirmative action ends with the advertisement’s text.
54. In its 2007 report, Humanitarian Law Centre Kosovo[67] assesses that the implementation of the Anti-Discrimination Law is not satisfactory when it comes to the employment of ethnic minorities. Members of ethnic minorities are not represented in Kosovo public companies according to their overall participation in the population of Kosovo. Humanitarian Law Centre Kosovo describes as progress the fact that the members of ethnic communities employed with the Kosovo Energy Corporation and the Post and Telecommunications of Kosovo started receiving their employment contracts in their own mother tongues[68], with the exception of Roma.
55. The same report offers data on representation of ethnic communities in certain companies in percents: Post and Telecommunications of Kosovo 4.71 per cent, Pristina international airport 2.5 per cent, Kosovo Railways 12 per cent, Kosovatrans[69] 5.8 per cent, Termokos[70] and Remote Heating Djakovica[71] 3.5 per cent. We point out that after this extensive report there were no relevant and reliable reports or statistics on the number of employees among members of non-majority communities, whether in public or private sector.
56. The applicable legal system in Kosovo and Metohija establishes several forms of social assistance, such as basic pensions[72], benefits for war invalids and next of kin of those who lost their life in armed conflict in Kosovo[73], disability pensions[74], various forms of social assistance for families with children, etc. One of the basic elements of eligibility to use these mostly social entitlements is that the claimant does not possess reckonable assets above the legally defined minimum. For example, the social assistance beneficiary in Kosovo cannot be a person who owns more than 0.5 hectares of cultivatable land.[75] This provision is the main obstacle which prevents minority communities from meeting the criteria necessary for access to the system of social assistance, which is why relevant provisions take on an indirectly discriminating character. Namely, great number of members of minority communities, especially repatriates, own more than the allowed limit of cultivatable land, but due to unstable security situation for minorities, long standing usurpation of the land and passivity of competent authorities when it comes to protection of property rights in the Province, they are objectively prevented from cultivating that land and thus generating revenue from it.
57. According to the report of the International Centre for Migration Policy Development from 2006, this problem was temporarily resolved in certain municipalities in Kosovo and Metohija through some sort of interim measure carried out by international military authorities in the Province. KFOR was issuing certificates declaring insufficient security in the area where cultivatable land is located, on the basis of which member of minority community who applied for social assistance could prove that they are not capable of generating any kind of income by using their cultivatable land, or, in other words, proving their eligibility for social assistance despite the fact that they own more cultivatable land than set as minimum. But, such practice, as mentioned earlier, was sporadic more than uniform and, while it lasted, represented temporary solution for a permanent problem.[76]
58. Beside various forms of indirect discrimination of members of minority communities, the social assistance system established in Kosovo and Metohija has also been violated by acts of direct discrimination, over a long period of time, by denying members of minority communities to access information in their mother tongue. For example, although the Law on Disability Pensions in Kosovo took effect on 17 December 2003, relevant forms and instruction in Serbian language were published as late as January 2006, only then allowing disabled persons who don’t speak Albanian to apply for social assistance.[77]
59. Discriminatory practice was also observed in the implementation of provisions of UNMIK Regulation 2000/66 оn benefits for war invalids in Kosovo and next of kin of those who lost their lives in armed conflict in Kosovo, from 21 December 2000.[78]
60. The above mentioned claims about existence of obstacles for access to the social assistance system affecting only members of minority communities is clearly proven by the Report on Number of Users of Social Assistance and Pensions in Kosovo, published by the Statistical Office of Kosovo in 2006. The report specifies that in that year a total of 7.501 members of the majority community successfully applied for this type of social assistance, while only 24 successful applications were submitted in the Serbian language.[79]
61. The internally displaced persons, as a specially threatened category of population, are under care of the Centres for Social Work of the Republic of Serbia, which in the territory of Kosovo and Metohija[80] works only in areas with predominantly Serbian and non-Albanian population.[81] Centres make regular monthly payments[82] of social assistance to families with children, newly-born, disabled persons, and assist threatened families in any other way.
62. Since 1999, in areas inhabited by non-Albanian population, there is not a single institution of social assistance to take care of disabled persons, nor is there a single nursing home for taking care of the elderly.
63. According to the available data, and taking into consideration the report of the Mental Disability Rights International on situation in Special nursing home for mentally disabled persons in Stimlje, there are serious and numerous violations of rights of persons with intellectual disability and mental disorders sheltered in this institution. Beneficiaries of the said institution are exposed to inappropriate care and physical, psychological and sexual abuse. Following the publishing of the report by the Mental Disability Rights International, the Dutch government and UNMIK built a special facility in Gracanica of highest international standards for nine non-Albanian children (alternative shelter for beneficiaries in community – the so-called protected housing). However, despite meeting world standards in technical characteristics of the facility, nothing else changed. The same unqualified staff still works with beneficiaries with little guarantees of protection of professional ethics and hygiene standards. In Stimlje, there are still 88 beneficiaries of Serb nationality, and Serbian Government cannot get any official information on them through UNMIK channels, or organise visits of their custodians or relatives.
64. After June 1999, there were 98 Serb beneficiaries left in the Gerontology Centre in Pristina. Since then, measures have been take for their urgent transfer to similar centres in Serbia proper, as well as transfer of mortal remains of the deceased to members of their families. A request was also sent to UNMIK to submit complete documentation on deceased inmates in the Special Institute for Mentally Disabled Persons in Stimlje and about the missing from the institution.
65. Since June 1999, the process of return of the minority non-Albanian communities to Kosovo and Metohija has been full of obstacles comprising of, among other things, unstable security situation, lack of economic sustainability for repatriates, unresolved status of their property and limited freedom of movement.[83] The lack of basic guarantees of physical survival under the existing conditions in Kosovo and Metohija implies the impossibility of enjoying relevant aspects of the right to adequate standard of living, with special emphasis on the right to adequate housing.
66. Article 11 of Covenant recognises the right of all people to adequate housing, which “should not be interpreted in a narrow or restrictive sense”, but as “the right to live somewhere in security, peace and dignity“.[84] Realisation of the principle of effective monitoring of the situation regarding housing, as “obligation of immediate effect”, is perceived through the prism of all necessary measures undertaken alone or on the basis of international cooperation.[85] Based on the facts presented in further text, we conclude that the situation in Kosovo and Metohija is an obvious example of violation of this right, especially in the field of existing mechanisms for resolving property disputes, as well as in the sense of non-existing but necessary mechanisms.
67. Establishing the right to housing was the task of the Housing and Property Directorate and Housing and Property Claims Commission. In their work several significant problems when were observed regarding claims processing[86], contrary to the essence of the generally acknowledged elements of the right to adequate housing. The incompatibility primarily applies to the field of element of legal safety of the property, or the guarantee of “legal protection against forced eviction, eviction harassment and other threats”, which includes the imperative of undertaking “immediate measures aimed at establishing legal security of property for persons and households which currently lack such protection“.[87]
68. Despite clear obligation to “deliver copies of the Reply to Claim to the other parties“[88], the Housing and Property Directorate was delivering neither reply nor the evidence from opposing side to C-claimants[89]. This problem is especially noticeable in the cases of so-called “related” А- and C-claims.[90]. Bearing in mind that the allegations of discrimination were a priori accepted without a reasonable burden of proof on the side of the A-claimant, in these situations it was of the utmost importance for the C-claimant to have the full insight into the arguments and the evidence submitted by the other party. Withholding such information violated the imperative principle of an adversarial process as “the opportunity for the parties to have knowledge of and comment on the observations filed or evidence adduced by the other party“[91] and, consequently, jeopardized effective conduct of the proceedings and the legal security of tenure.
69. The first instance decisions which dismissed C-claims did not contain any or clear reasons as the basis for the decision or explanations why some evidence was taken into consideration while others weren’t.
70. Certain number of these decisions was based on claims that C-claimant had already sold their housing property before the 1999 conflict, but that they submitted the claim after the fact because they were dissatisfied with the achieved price under the expected market value at the time of purchase, or because the price was never actually paid at all. Furthermore, certain number of cases was solved based on claims that the reason for discontent was unjustly closed contract on exchange of the housing property.[92] Having in mind that C-claimants were had been providing valid supporting documents, that type of decisions was apparently based solely on claims of the opposing side, without possibility to dispute them, due to a lack of insight into the opponent’s responses and evidence material.
71. Certain number of decisions claimed without basis that C-claimants failed to prove their property right although valid supporting evidence had been presented in the first instance procedure (e.g., contract on use, lease, purchase, etc.), without explanation why the evidence was not considered relevant for the decision. Thus were the C-claimants prevented from successful participation in the second instance proceedings.
72. In the cases related A- and C-claims, despite the fact that HPCC had the mandate to establish whether there had been discrimination in the implementation of the so-called “discriminatory laws” as regulated by the relevant provision[93], the body often went further than that to assume the existence of general discriminatory practice, and thus take it upon itself (without authority) the role of court, behaving ultra vires. As applicants of C-claims were almost without exception Albanians, priority recognition of their legal claims based on abstract indications of discrimination in practice was equalised with indirect discrimination of C-claimants as members of non-Albanian communities, which can be read as contrary to Article 11.1 and Article 2 (2) of the Covenant.
73. Beside general problem of bias and lack of independence with HPCC in regard to realistically non-existence distribution of competences in Kosovo[94] and lack of rules on ethnic composition of local commissioners, there was also the issue of structural impartiality: a practice has been introduced that the first instance and second instance decision be made by the HPCC panel of the same make-up. Article 2.2 of UNMIK Regulation 1999/23 envisaged that HPCC only “initially be composed of just one panel.” Persistence of that situation for years was certainly not the intention of the legislator. The same conclusion can be drawn from the wording in Article 25.1 of UNMIK Regulation 2000/60 which explicitly states that “following the establishment of two or more Panels of the Commission, any reconsideration of a matter shall be conducted by a different Panel than the one that decided the claim, unless... [it was determined] that it should be conducted in plenary session.“ Similarly, the SRSG’s clarification of Regulation in 2001 says that the “only appeal from the decisions of the HPCC is to another panel or a plenary session of the HPCC, and not courts [emphasis added].“ [95]
74. This means that the principle of impartiality of the tribunal was not respected, or, in other words, the fair trial guarantee, as one of the prerequisites of adequate protection of legal safety of the property, was not provided.
75. In numerous cases resolved at the first instance, HPCC accepted to process claims submitted after scheduled deadlines, after maximum one year from the date when the decision was made.[96] Beside cases when untimely claims were processed without any reasonable ground, or by crude discrimination presumption, HPCC was quoting Article 19.6 of Regulation 2000/60 which allows that “[the Commission] may, in specific cases, proceed notwithstanding non-compliance with any procedural rule by any Party or by the Directorate in the interests of the efficient administration of justice, where there is good reason to do so and this would not materially prejudice the rights of any party.” [emphasis added]. Although such action generally can be justified in very exceptional cases, arbitrary interpretation of the possibility of exclusion of basic procedural rules was observed, while the questioning of res iudicata endangers the principle of legal security.
76. The majority of the cases in which HPCC was instructing A-claimant to launch a court procedure were the cases where A-claimant had had the decision (of the competent socially- or state-owned enterprise) on the right to use the apartment but still did not sign the contract on use and still did not enter the physical possession of the apartment at all. The fact that the apartment was never in legal possession of the A-claimant is allegedly the reason of his addressing the court in order to have the legal remedy established.
77. HPCC justified this by quoting provision which stipulates the possibility that HPCC may “refer issues arising in connection with a claim, which are not within its jurisdiction to a competent local court or administrative board or tribunal.“[97] However, we should note that the in the said example this referring happened only after the positive interpretation of its own jurisdiction by HPCC, in other words, after final decision in the legal matter. By referring to the court, HPCC obviously de facto opened the possibility of court re-examination of the “final” decision by the HPCC.[98]
78. Since the 60-day deadline for the A-claimant refers to his/her expression of intent to launch a court procedure, and not the actual launching of procedure itself, this provision represents a very realistic field of abuse. As C-claimant is prevented from using his property fully as an owner (his right can be entered into cadastral records, but he has no possibility of transferring the right) till the end of court procedure, introduction of this legal remedy allows virtually unlimited interference into their property rights. In addition, having in mind the finality of the second instance decision by the HPCC, C-claimant, as conscientious claimant and prima faciae owner, does not have an equivalent possibility of referring to a judicial or administrative body for protection of the right.
79. The HPCC was, according to the regulation, granting restitution of the property to successful A-claimant in kind when the housing property in question did not already become a property of natural person, by closing valid voluntary transaction[99], and after the A-claimant paid HPCC the purchase price for the apartment contained in the contract of sale concluded by the First Owner, or the price at which the claimant would have been entitled to purchase the apartment under the Law on Housing but for the discrimination, plus a percentage of the current market value of the apartment, as determined by the Directorate, and the cost of any improvements made to the apartment by the First Owner.[100] The sum must be paid to the Directorate within 120 days of the Commission’s decision on the right to restitution.[101] Any claimant found by the Commission to have a right to restitution of a socially owned apartment, but who is not awarded restitution in kind, shall be issued a certificate by the Directorate stating the current market value of the apartment in its current condition[102], whose amount would be determined on the basis of the Directorate’s formulae.[103]
80. Despite the firm obligation to pass a subsequent legislation which would regulate
compensation problem[104] and precise deadlines for payment, HPD and UNMIK have never done it. Allegedly[105], the draft law of compensation was submitted to UNMIK in 2004, but was never passed. Because there are no mechanisms of restitution (compensation)[106] and UNMIK failed to execute its legal obligations[107], large number of successful C-claimants were fully prevented from realising their right to adequate housing.[108]
81. Decisions made upon B-claims are, due to the nature of the claims, of constitutive character, and allow registration of the determined property right into cadastral books. Also, decisions made upon A-claims can be a valid basis for cadastral registration if the successful A-claimant paid the value of the housing property in question.
82. Contrary to all this, the HPCC’s decision for successful C-claimants has almost no practical value in terms of the possibility of registration of the property right into appropriate cadastral records or proving the right before any other institution in Kosovo and Metohija. This is because such decision formally determines only the holding of physical possession in a defined period, but not the ownership right. In order to conduct the cadastral registration, it is necessary to submit the competent municipal office of the Kosovo Cadastral Agency a “classical” legal ground, i.e. relevant property documents, with or without positive HPCC decision. If these documents undoubtedly prove the property right, in majority of cases Kosovo Cadastral Agency was conducting registration. These are usually the same documents which HPD/HPCC had already taken into consideration when making a decision about the disputed right. This raises the question of the real end value of the HPCC’s obviously manifestly declaratory act which remains unrecognised by itself in terms of proving and protecting the owner’s right to housing property.
83. The Republic of Serbia has identified numerous legal problems related to the mandate of the Kosovo Property Agency which considerably affect the possibility of access by persons from Kosovo, primarily internally displaced persons, to the right to adequate housing.
84. Kosovo Property Agency was established by UNMIK Regulation 2006/50 as an independent administrative body with sole jurisdiction to “receive, register and resolve“ ownership claims related to private immovable property in Kosovo and Metohija[109]. The established final deadline for submitting claims to Kosovo Property Agency was 3 December 2007, in accordance with UNMIK Administrative Instruction 2007/5 from 1 June 1 2007[110], passed in order to implement Regulation.[111] The regulation itself does not stipulate any concrete deadlines for submitting claims, except for the deadline of its own validity (31 December 2008.).[112] Having in mind that the Administrative Directive, as an act of lesser legal power, can only implement and in not in any substantial way materially change or amend regulations stipulated by the Regulation, this manner of time limit for access of interested persons to Kosovo Property Agency is illegitimate, because the cessation of reception of ownership claims in the period of legal validity of Regulation which grants Kosovo Property Agency the exclusive jurisdiction to receive and resolve claims results in impossibility for the interested parties to refer to any other body for meritorious resolution of relevant the property issues. It is the violation of the right to a due process (access to court) and certainly does not contribute to protection of the interested person’s security and peaceful enjoyment of possession, or, in other words, right to adequate housing.
85. Another problem is the earlier practice by the officers of Kosovo Property Agency who refused to receive claims from persons whose housing property had already been a subject of consideration by HPD/HPCC. This can be interpreted only as unauthorised preliminary selection and arbitrary interpretation of the Kosovo Property Agency’s mandate. According to applicable administrative rules in Kosovo and Metohija, the competent staff of an administrative body (which Kosovo Property Agency formally is) is in any case obliged to receive and register the case. Upon interventions from non-government organisation, officers of Kosovo Property Agency started receiving claims without prejudice, but the damage was already done since many interested parties were previously not able to submit claims for said reasons.
86. In the course of submitting the claims, interested persons were required to present the required evidence obtained on their own. Kosovo Property Agency did not have the responsibility to ex officio collect the available evidence to which the parties eventually point during the initiation or in the later phases of the proceedings. Kosovo Property Agency considered verified only the evidence whose existence it could check in archives in Kosovo and Metohija (priority evidence) and Serbia proper. Problem was the fact that the documented evidence held in archives of Kosovo institutions, due to bad security situation and lack of money, often were not available to internally displaced persons in Serbia. Furthermore, competent administrative clerks officials in cadastral offices frequently resorted to illegal conditioning of issuing necessary documents by previous paying of tax duty for the property in question. That is why it can be said that the factual impossibility to access the requested evidence, which the Kosovo Property Agency could easily obtain by using its own authority, resulted in practical impossibility to protect property rights of interested parties.
87. Section 12 of Regulation 2006/50 provided the possibility of appeal against the decisions by Kosovo Property Agency to Supreme Court of Kosovo, i.e. the three judge panel which was supposed to be authorised by the Special Representative of the UN Secretary-General.[113] The Chamber has never been founded, and there are no clear indications when and how it would be done. According to statements from officials of the Kosovo Property Agency, the appeal mechanisms has not yet been established because there was no need for it – Kosovo Property Agency has so far been dealing only with undisputed cases. Having in mind the time limitation of the Regulation 2006/50 which regulates the mandate of the Kosovo Property Agency and uncertainty of its extension or renewal, the lack of access to and ineffectiveness of the envisaged appeal stance represents an example of inability of the existing claims resolution mechanism to adequately protect the right to adequate housing.
88. Pursuant to Section 17 of UNMIK Regulation 2006/50, Kosovo Property Agency exercises the same powers as the Housing and Property Directorate, for the execution of all the same decisions and eviction orders by Housing and Property Claims Commission which were ready for execution on 7 March 2006 but were never executed.[114] Despite the very clear obligation of execution of final and executive decisions by the Housing and Property Claims Commission, Kosovo Property Agency often was not capable of executing this duty and provide entry to the housing property due to the lack of political will. This significantly undermined the credibility of the whole Kosovo Property Agency mechanism and UNMIK to protect property rights of minority communities in Kosovo.
89. One of the problems encountered in the course of the execution of decisions by the Housing and Property Claims Commission was damage caused to immovable and movable property which is the subject of eviction. Pursuant to existing regulations, Kosovo Property Agency, just like the former Housing and Property Directorate, has no obligation to preserve the totality of the property in question, not in a single phase of its activity, not even under its administration, in order words, in the procedure of implementation of rental scheme. The practice confirmed the absolute certainty of total destruction of all movable property, but the biggest concern of is raised in respect of total destruction of immovable property. Due to the fear of total loss of the only residential object available and adequate for living, many owners decide not to request or to reject eviction of the unlawful occupant.[115]
A special problem is the lack of adequate protection after the execution of the first eviction, because the usurper or the third party usurps the property once again within 24 hours from moving out by simply removing the protective seal. Kosovo Protection Agency has no obligation to carry out multiple evictions, instead transferring the matter to law enforcement bodies. However, police and prosecution in Kosovo very rarely undertake such actions and legally prosecute repeat perpetrators of such criminal acts.
90. According to interpretation of Article 13.6 of UNMIK Regulation 2000/60 (оn prosecution of repeat usurpers) given in February 2007 by Mr. Borg Olivier, earlier legal advisor of the Special Representative of the Secretary-General, for subsequent evictions in cases of property sealed by Housing and Property Directorate or Kosovo Property Agency, police do not have to seek agreement from he public prosecutor. On one hand, this move could have been a useful contribution to the more efficient action by the police. On the other hand, such action is contrary to the provision of the Provisional Criminal Code of Kosovo, according to which usurpation of someone else’s property represents a criminal act punishable by fine or imprisonment of up to a year[116] and results in a situation in which re-usurpation in the name of “efficiency” becomes non-punishable.
91. Since KFOR arrived to Kosovo and Metohija on June 12, 1999, national KFOR contingents[117] occupied, among the rest, private property as well, which the owners were forced to leave in the midst of armed conflict or its consequences, under the circumstance of forced evictions[118]. Individual owners encountered series of difficulties in an attempt to obtain restitution or at least a fair compensation for the use of usurped property or inflicted damages.
92. UNMIK has no mechanisms whatsoever to protect the damaged persons in cases of endangered property by KFOR international security presence. Primary problem is the full legal immunity of KFOR. Pursuant to the text of the Military-Technical Agreement and its accompanying annexes, KFOR “will deploy and operate without hindrance within Kosovo and with the authority to take all necessary action to establish and maintain a secure environment for all citizens of Kosovo.”[119] KFOR (nor any of its personnel or staff) shall be liable for any damages to public or private property that they may cause in the course of duties related to the implementation of this Agreement.[120] Furthermore, pursuant to UNMIK Regulation 2000/47, “KFOR, its property, funds and assets shall be immune from any legal process“.[121]
93. Section 7 of the UNMIK Regulation 2000/47 exceptionally provided that KFOR Claims Commission resolve third party claims for, among others, property loss or damage arising from or directly attributed to KFOR which do not arise from “operational necessity“.[122] Regulation (or any other document) does not make it clear what is operational necessity. The question which property claim is considered legitimate in individual cases KFOR can interpret differently, depending on its requirements. Mechanism for processing claims, briefly given in Regulation, formally was established only on March 22, 2003, through Standard Operating Procedure 3023 on claims in Kosovo, issued by the KFOR main headquarters. According to SOP, “each Troop Contributing Nation [TCN] is responsible for adjudicating claims that arise from their own activities, in accordance with their own claims rules, regulations and procedures.“[123] However, this mechanism of resolving claims “is not legally binding” – any decision made is internal in character for KFOR and the contingent’s nation, and the Standard Operating Procedure serves only to “encourage” member states to process claims in accordance with “advisory steps” from Annex B of the Standard Operating Procedure.[124] Similar is the situation in the appeal procedure, which was assumed to be unimportant from the very beginning, and fully stopped functioning back in 2004.[125]
94. Despite the fact that in a presumed democratic order the civilian authorities have to have a reasonable level of control over its military component and adequate protection from possible and current abuses of power, the relation of KFOR towards UNMIK is fully devoid of any subordination. Resolution 1244 demands from Secretary-General to “instruct his Special Representative with coordinating closely with the international security presence in order to secure both presences acting towards the same goals in a mutually supportive manner.“[126] Lack of civilian control over military force in Kosovo deprives the threatened persons of all guarantees of legal protection from violation of property rights: inability to enforce restitution or compensation for property, and thus inability to return or freely chose the place of living. This creates a persistent existence of a huge hole in the law in the component of legal security contained in the right to adequate housing.
95. In Kosovo and Metohija, the illegal construction boom is the cumulative result of absence of rule of law, non-implementation of laws, non-harmonized and poor practice of municipal authorities, and lack of civil construction inspection.[127] Property relations were made extremely difficult by exponential growth of illegal construction around bigger cities and along the main roads after migration of rural population into cities. That resulted in construction on agricultural land in vast majority of cases without agreement and even contrary to intentions of lawful owners, who are often displaced persons.[128] Illegal construction in places of destroyed buildings or in the immediate vicinity or connection with destroyed housing property, beside huge ecological attack on the environment, represents a huge problem, which seriously reduces the chances of forcedly displaced persons to realise their right to adequate housing through peaceful enjoyment of their property, or, in other words, undermines the legal security of the property.
96. Enormous amounts of money are funnelled into illegal construction on unwillingly and temporarily abandoned property, so it cannot be expected from authorised institutions to order the demolition of such erected buildings and return of property to previous condition. This is sad but true, and this is exactly what all the illegal investors rely on.[129]
97. One of the constitutive elements of the right to adequate housing is the availability of services, buildings and infrastructure, which include permanent access, among other things, to “power supply for cooking, heating and light [...] means to store food [...]“.[130] In this there is a series of problems in Kosovo.
98. By linear implementation of its so-called ABC policy, designed to supply electricity to consumers according to their regularity of paying electrical bills, Kosovo Energy Corporation achieved factual discrimination of non-majority population in territories in which they live and in territories to which they would like to return. Reasons are poor material state of the repatriate community, caused by long standing displacement and objective inability of the economic sustainability of the return. The context itself of the practice opens up the question of possible indirect discrimination in the protection of rights guaranteed by Section 11.1 in collision with Section 2(2) of the Covenant.
99. Another very problematic policy by the Kosovo Energy Corporation is to charge repatriates with electricity bills, including the electricity spent during the time they were away, i.e. on the property they did not and could not use because it was illegally taken away from them by the third party.
100. In those and similar situations, consumers may file complaints to branch offices of Kosovo Energy Corporation, which are mostly located in cities, which causes financial expenses and security risk. According to available information, when certain threatened persons addressed the competent municipal court in such cases, it did not have a positive outcome.
101. Additional problem is the practice by Kosovo Energy Corporation to charge the repatriates relatively high amounts of tax for activation of power consumption meters (electric-meters), even for houses built through humanitarian aid. Majority of projects for repatriates does not cover these kind of expenses, repatriates mostly cannot pay the bills, and that is why they don’t have the chance to start using and paying the spent electrical energy. Such approach is contrary to implicit obligation to refrain from actions which can endanger or threaten the access to adequate housing and sheltering.
102. In the summer of 2009, in an attempt to charge the electrical energy spent in some Serb enclaves, Kosovo Energy Corporation first partially and then fully stopped sending electrical power to Sredacka Zupa, with a population of around 15,000 Serbs and a smaller number of Kosovo Albanians. Consequences were large amounts of spoiled food, with several cases of food poisoning, deteriorated personal hygiene, denied information over radio and television, difficult situation for acutely and chronically sick people, necessity to fire up timber for cooking in the summer months and many others examples. The fact that no one from the international community stood up in the defence of fundamental human rights of the affected population to dignity of life and appropriate standard of living. This way the non-selective worsening of living conditions had been carried out for all citizens of Sredacka Zupa. Unfortunately, not even members of European Union reacted to draw the attention to the golden rule of the EU: principle of proportionality, which says that we must always take care of proportion of measure and consequence, or, in other words, to ask yourself whether you can achieve the same goal with other non-invasive measures which would not endanger life and health of 15,000 people. We cannot take into consideration the remarks that one economic operator must generate profit and charge its service, because there are regular courts which, among other things, deal with the issue of people who do not pay regularly for communal services. This way, Kosovo Energy Corporation got away with obvious act of clearly targeted discrimination towards an ethnically determined group. This way, in the situation when there are Provisional Institutions of Self-Government and two international missions, the United Nations and European Union, a milieu was created for anarchy, unpunished discrimination and unscrupulous violation of fundamental human rights contained in international instruments signed by all members of EU.
103. Difficulties in obtaining construction permits from municipal authorities for construction or refurbishment of residential units are just some among many problems that undermine the right to adequate housing. The process is encumbered by protracted duration and unreasonable costs, which put additional burden to already extremely vulnerable returning community. Getting the necessary documentation is a problem faced even by the international NGOs implementing return projects. The procedure for issuing these permits may last up to a year, and in the overall atmosphere of restricted freedom of movement and limited communication with municipal authorities, such protracted period can be seen as an impediment of the right to freely choose a place of living and/or return, and of the right to adequate housing.
104. Special group of problems for securing adequate housing is related to extremely poor quality of reconstructed houses. Due to failure to respect construction standards, houses given to repatriates either from the very beginning or after short period do not offer protection any more from the “cold, humidity heat, rain, wind or other threats to health, structural hazards and sickness“.[131] The phenomenon was observed and confirmed by Secretary-General and the UN Security Council.[132]
105. Lack of basic preconditions for the exercise of rights to adequate housing results in practical impossibility to efficiently carry out return of internally displaced people and endangers the local integration of the so-called internally-internally displaced persons[133]. Despite the apologetic attitude of local and international organisations active in the process of repatriation, which often tend to explain the low degree of return with lack of funding, that is not the whole truth because in many cases even when the money was secured, there is no return because of the lack of political willingness to receive a large number of repatriates from minority communities. Obstruction or passivity from authorities in executing their duty in the filed of repatriation obviously violates the principle of access to adequate housing, especially to threatened groups[134]. These groups, including internally displaced persons and minority communities, suffer disproportionately large damage as victims of violation of economic, social and cultural rights.[135]
106. The respect of international standards of human rights when it comes to displacement – among others, the right to free choice of the place of living, is one of the elementary prerequisites of protection of right to adequate housing.[136] Despite the huge amount of spent resources, there are no effective and visible results with UNMIK when protecting this right in the context of allowing displaced people from Kosovo to return.
107. According to official data of the International Red Cross and UNHCR, since June 1999, Kosovo was left by 238,000 Serbs, 30,000 Roma and other non-Albanians.[137] By the end of 2007, according to data from the UNHCR office in Pristina, around 18,000 Serbs and members of other ethnic communities returned, which makes 7.5 per cent.[138] That number changed a little in the subsequent years. Between March 2005 and May 2006, only 2,816 individuals returned. According to data from UNHCR, the total of around 600 displaced persons returned in 2009, only 184 of which opted for the organised return through registration. In 2010, that number is 393 individuals, also according to the same data. For the sake of comparison, in six months only – between June and December 1999, approximately 90 per cent of Albanian refugees returned to Kosovo, which includes all except those who fled to countries of the western Europe in an attempt to seek asylum.
108. By signing the Memorandum on Understanding of 23 January 2007, reserved powers for the return of displaced people by SRSG have been practically transferred to provisional institutions such as “localisation” of the UNHCR’s function[139], by obvious severe interference into the mandate and without participation and agreement from UNMIK. Results of that transfer of authority are devastating: between February and September 2008, the total of 143 persons (0.6 per cent of the displaced population) returned to Kosovo[140], which means that the return was practically stopped. One of the key goals of Resolution 1244[141] is the return of refugees and the displaced.[142] Having in mind that by autumn 2008 only 7.5 per cent of internally displaced persons returned to Kosovo, we can conclude that the goal was not met and that strong segregation is still spreading in all segments of life in the Province.[143]
109. UNMIK as mandated to facilitate the return of the displaced persons[144] has been effectively restricting the process by conditioning the return exclusively to places of origin, despite Belgrade office of UNHCR insisting on return according to the places of choice.[145] This is completely contrary to UNMIK’s stance about the return of Albanian displaced population in 1999, when this principle was not implemented.[146] Such discriminatory approach violates the right to free choice of place of living by members of non-Albanian communities and thus, among other things, right to adequate housing. Having in mind the unfavourable security situation and the fact that many settlements and all the cities in Kosovo south of the Ibar River became mono-ethnic[147] and unsafe for minority ethnic communities, conditioning the return of smaller groups and individuals to unsafe places for them is tantamount to denying them return.
110. In June 2006, the Protocol on Sustainable Return was signed[148], which recognises the right to return to any place in Kosovo. In practice, for the displaced persons this once again boiled down to objectively reduced choice of relatively safe places with mostly Serb population in rural parts of Kosovo. Despite this, the document remained in the sphere of political manipulation (as false evidence of meeting obligations of provisional institutions and alleged success of international administration in the field of repatriation), and in practice was never implemented.[149]
111. Sections 2 and 3 of the Protocol determine a 60-day deadline for competent municipal bodies to carry out and finish the procedure for organised return of persons who declared they intend to return. However, the revised Manual for Sustainable Return[150], adopted as a document for implementation of the Protocol, unnecessarily complicated the procedure of return introducing numerous administrative mechanisms and instances of work groups and bodies[151] for certain phases of the procedure. That way, the initial deadline of 60 days was virtually abolished and turned into an open period.[152] That is why local Albanian authorities, with obvious aim to slow down the return, insist on consistent implementation of all phases and mechanisms under the Manual.[153]
112. Another measure which considerably slows down the return is an arbitrary selection of displaced persons willing to return by the so-called “receiving community”. This arbitrary selection was usually carried out by informal representatives of the reception community, taking over the role of arbiters who decide who can and who cannot return. The selection of acceptable candidates does not depend on material or legal evidence, or decisions by authorised bodies (such as indictments, court verdicts, etc.).[154] Although it is important that the receiving community accept repatriates in order to achieve sustainability of return, such practice of “filtering” repatriates by receiving community is very disputable, because of the highly obvious discriminatory effect.
113. The important moment in the creation of preconditions for the respect of rights to adequate housing for minority non-Albanian communities is made by so-called balancing components, i.e. an investment into local receiving community in order to reduce resistance to the return of non-Albanian communities.[155] Such programs include between 30 and 50 per cent of finances intended for individual project of return. It often happens that, after realisation of the balance program, repatriates are exposed to intimidation and attacks and forced to once again leave their homes and enter secondary displacement. Naturally, the receiving community gets to keep the benefits from the return program.
114. The fact is that efforts by UNMIK so far aimed at sustainable return and securing adequate housing for minority communities in Kosovo, due to all the mentioned circumstances, failed to bear fruit. In that context, especially worrying is the initiative that the buildings built for minority communities that were not taken up be put to use to municipal authorities. The alleged purpose is securing temporary accommodation for second categories of repatriates, such as unsuccessful asylum seekers from Western Europe, almost solely Kosovo Albanians. Project of return and reintegration in Kosovo financed by European Union and UNDP in cooperation with Ministry for Communities and Return of the Provisional Institutions of Self-Government, worth over five million dollars, envisages as one of its final goals “development of the revised strategy of municipal authorities for reconstructed empty property“.[156] Such initiatives may become additional obstacle in the series of already existing obstacles in the field of protection of rights to adequate housing of endangered members of repatriate minority communities.
115. Another very worrisome moment is the intention of the said EU/UNDP Project to be the single project of return in Kosovo, especially when having in mind that the Project relates to only four municipalities (Istok, Pec, Kosovo Polje and Gnjilane). In addition, most of the secured finances is planned for “capacity building” in those municipalities in order to enable undisturbed return, which makes it fairly certain that another dispersion of already modest finances would occur. In other words, finances intended for return of displaced persons are redirected to various training of uninterested local officials instead of to displaced persons and repatriates.
116. Additional problem of the above described context of preventing return and adequate housing is the lack of coordination among Ministry for Communities and Return, Kosovo Provisional Institutions and municipal return offices. What’s worse, the competent Ministry is shaken by frequent corruption scandals, dismissals of officials, which is why there is no necessary continuity in work or institutional memory. This is added to by frequent institutional changes as well, the latest of which being the merge of earlier positions of municipal official for return and municipal official for communities.
The right to access to health care services on a non-discriminatory basis belongs to a group of rights from the Constitutional Framework for Provisional Self-Government (Article 4.4, Paragraph (m)). [157] The Provisional Institutions of Self-Government shall ensure that all Communities and their members may exercise their rights[158], and the Ministry in charge “develops policies and implements legislation for a non-discriminatory and accountable health care system.”[159] According to Constitutional Framework and based on its duties in accordance with Resolution 1244, SRSG will retain the authority to protect the “rights of Communities and their members” [160].
The Kosovo Law on Health, basic law in this field, contains a series of provisions which make a legal foundation for a non-discriminatory and inclusive system of healthcare. In Section 7.1, legislator stipulates that the “system of health care should be accessible to all citizens and all Communities of Kosovo.“, and Section 12 defines principles which guarantee access to health care system to members of non-Albanian communities (principles of equity, quality, inclusiveness and non-discrimination).
117. However, that legal framework does not contain necessary provisions whose implementation would guarantee efficient implementation of principles of inclusiveness and non-discrimination, in other words, establishing conditions for adequate use of Serb language as official language of Kosovo. It can be concluded that the valid provisions point out to the fact that health care institutions in Kosovo under Provisional Institutions of Self Government are not aware of the equal significance of Albanian and Serb language. That is why their work can become indirect source of discrimination towards patients who do not speak Albanian.
118. Beside that, the provision which guarantees non-discriminatory functioning of the health care system in Kosovo does not include ethnic origin[161] as basis for discrimination, which means that it offers only partial protection from discrimination of communities in Kosovo.
119. However, non-Albanian population in Kosovo is afraid to use health care services in hospitals employing solely Albanian-speaking staff. That is why one of the biggest problems of minority communities remains the secondary health care[162].
120. Especially threatened segment of population when it comes to health care is displaced persons and repatriates who live in isolated neighbourhoods and Albanian surrnounding. Generally speaking, their economic positions is poorer than that of the total population, even than that of the other displaced persons and repatriates who live in larger Serb settlements, such as Gracanica, Strpce and villages in Kosovsko Pomoravlje. Because of their geographical location, they are far from health care institutions under the jurisdiction of the Republic of Serbia. On the other hand, health care institutions under jurisdiction of Kosovo authorities are practically inaccessible to them, due to language barrier, mutual mistrust, lack of freedom of movement and safety in mono-ethnic Albanian communities.
121. Almost all projects of return of displaced persons even in their blueprint plans contain a sub-project or component of health care, usually through a construction of small outpatient clinic which covers one or several neighbouring villages. However, in practice that part of project remains unfinished due to a lack of funding, without the question ever being asked why sufficient funding was not provided or why there is a discrepancy between the plan and realisation.
122. Health care in areas with predominantly Serb population is carried out according to health protocols and with funding from the Republic of Serbia[163], including medicine supplies. However, distribution of medicine and other medical material to these health care institutions encounters great problems. Medicine supplies were detained and confiscated on several occasions at the Merdare administrative line crossing, and at the customs checkpoints in southern part of Kosovska Mitrovica.[164] This creates additional pressure on Serb population and insecurity when it comes to full protection of the right to health care.
123. We remind that the right to health, among others, contains four inter-connected and fundamental elements, of which the right to medicine was established as one of the basic determinants of elements of availability[165] and elements of quality[166]
124. Thanks to exceptional engagement of the UN office and Red Cross of Serbia, with assistance from World Health Organisation, distribution of humanitarian aid is temporarily normalised. However, UNMIK Office for Civil Affairs informed the Red Cross of Serbia on 18 August 2008 that it ceases activities which included cooperation with UNMIK customs in the field of procuring permits to Red Cross of Serbia for customs free and unhindered supply of humanitarian aid and medicine to endangered population of Kosovo and Metohija.
125. The right to education in Kosovo and Metohija is regulated by relevant international instruments and local regulations, in compliance with Section 3.3 of the Constitutional Framework.[167] The right to education in one’s own language belongs to a group of rights directly guaranteed to communities in Kosovo based by Chapter 4 of the Constitutional Framework 4: “Communities and their members have the right to receive education in their own language.”[168]
126. The Provisional Institutions of Self-Government shall ensure that all Communities and their members may exercise this right[169]. Within the Provisional Institutions of Self-Government, the Ministry of Education, Science and Technology have specific competences to implement laws and promote non-discriminatory education system.[170] Beside that, in accordance with the Constitutional Framework and based on its duties in accordance with the UN Security Council Resolution 1244 (1999), SRSG reserves the power to “protect the right of communities and their members”.[171]
127. In academic year 1998/99, in 29 municipalities and 5 districts in Kosovo and Metohija, Serbian-language were attended by 45,279 pupils in primary and 19,966 students in secondary schools. After the exodus of Serb and non-Albanian population, the picture of education system has been completely changed. Majority of schools were moved from their bases, mostly in cities, to inadequate buildings most often in rural areas. Several secondary schools often work in the same building. Seven primary schools teach in private homes.
128. Primary and secondary schools in Kosovo and Metohija financed from the budget of the Republic of Serbia are using the same education programs as in Serbia proper. Provisional Institutions of Self-Government in Kosovo do not recognise the validity of these programs which directly endangers the right of minority communities in Kosovo to realise their right to education in their mother tongue. The reason for this is that programs used in the Province and the ones used in the territory of Serbia proper are so different that students who would finish secondary education pursuant to the Kosovo program would be impossible to resume their education in universities in Serbia, including universities in Vojvodina and Mitrovica. We should also add that Kosovo Ministry for Education, Science and Technology still did not organise lectures of high education in the Serbian language.
129. The key problem in the sector of education, beside exodus of minority communities, is the lack of security in educational facilities, and frequent, almost daily disruptions of teaching, restricted freedom of movement of students, involuntary transfer of school buildings into inadequate rooms in villages in which only a small number of Serb and non-Albanian population remained. Coordination Centre for Kosovo and Metohija of the Republic of Serbia in the meantime launched reparation of the school buildings. Competences and the status of primary and secondary schools in Kosovo and Metohija for Serb community have been defined pursuant to 1244 and resume work under plan and program of the Serbian Ministry of Education.
130. Especially difficult is the situation of the municipality of Dragas (also known as Gora), inhabited by the Gorani ethnic community.[172] The pressure on the community of Gorani, which have been going on since 1999, culminates at the beginning of each school year, which delays the beginning of classes. The attempt of forced assimilation of Gorani results in moving the Gorani community out of the area. Schools are moved to private houses or facilities which not only are not adequately equipped, but do not have the most basic means for performing lectures. Parents and children, members of the Gorani community, declared themselves through petitions that they want to attend classes according to the plan and program of Republic of Serbia.
131. Two secondary schools with 150 students were moved from Dragas to the village of Mlike, after expulsions and pressures on pupils and teachers to work according to the education plan of the Provisional Institutions of Self-Government of Kosovo. Since the building in the village of Mlike is inadequate and that it does not even have a toilet, Serbian Government through its National Investment Plan allocated finances for adaptation and supplementary construction works on the school building. However, municipal authorities of Provisional Institutions of Self-Government in Gora refused to issue the earlier requested construction permit, although the hired contractor was the non-government organisation registered with UNMIK. That is why Gorani parents started building the annex which contains the IT classroom and toilet on their own. Their effort was annulled when the authorities on 11 October 2008 tore down the newly built section, which caused a serious conflict between the villagers and local authorities.
132. Since June 1999, some 1,500 professors, associates and employees of the University of Pristina, together with 16,000 Serbian-speaking students, were expelled from the university and its faculties, and due to a bad security situation, they never returned to Pristina. The Serbian-teaching part of the University of Pristina moved to Kosovska Mitrovica[173], the only remaining multi-ethnic city. The University currently employs 746 professors and associates and around 350 non-teaching staff, and educates over 10,000 students.[174]
133. Beside the University in Kosovska Mitrovica, there are no other higher education programs in Serbian language in Kosovo and Metohija[175]. In the University of Pristina, there is no single program for students who speak Serbian.
134. Although the only education institution in Kosovo with lectures in Serbian, there are cases when students who graduated at this university had difficulties in seeking jobs or entering further education programs, because diplomas of this institution are not recognised in practice[176]. The same goes for diplomas of all education institutions in Kosovo financed from the budget of the Republic of Serbia.
135. This situation is one of the factors which increases the level of insecurity and endanger the return of displaced persons and normal functioning of non-Albanian communities in Kosovo. According to the Advisory Committee of the Framework Convention for Protection of National Minorities:
“[...] availability of higher education in one’s mother tongue can be a key factor in deciding whether to stay in Kosovo. Together with access to primary and secondary levels of education in one’s mother tongue, the availability of higher education is influencing the return decisions of IDPs and refugees. This should be reflected in the policies and practices developed in this field. Furthermore, the Advisory Committee wishes to underline that the important role assigned to the Serbian language in official bodies and other contexts in Kosovo, reflected inter alia in the Constitutional Framework and in the draft law on languages, implies that there is a need to ensure adequate language skills and capacity within various public sectors. This also needs to be taken into account in the design and implementation of educational legislation and policies, including in higher education.“ [177]
136. Non-recognition of diplomas issued by the University in Kosovska Mitrovica is a direct consequence of the discriminatory acts of the Kosovo Assembly in the course of adopting Kosovo Law on Higher Education[178] and failure of the interim international management to adequately react to such acts.
137. In 2003, Kosovo Assembly adopted the Law on Higher Education. This law directly accredited the University in Pristina. At the same time, prescribed conditions for accreditation seriously questioned the possibility of University in Kosovska Mitrovica being accredited as well. That is one of the reasons why, still in the phase of adoption of this law, representatives of the Serb community in the Assembly sent a complaint to the Presidency of the Assembly[179], claiming that draft law on higher education “violates vital interests of the community they belong to, in other words, negatively affect the rights of community or their members, in accordance with Section 4.“[180] Since Presidency of the Assembly failed to reach consensus on the proposal, Special Panel was founded with task of assessing the situation.[181] Within five days, Special Panel gave a recommendation that Assembly adopt the amended Law on Higher Education which would directly accredit University in Kosovska Mitrovica, in order to allow persons who speak Serbian to realise their right to higher education. According to James O’Brien, chair of the Panel, the decision was made because after the Assembly refused to legalise the work of the University in Kosovska Mitrovica, this University “had no practical way of applying for certification in the near term, even if it chose to do so, because the procedures for certifying universities will not be in place.“[182] Despite this, Kosovo Assembly dismissed the recommendations of the Panel and the Law was not amended.
138. In compliance with Section 9.1.45, laws shall become effective “on the day of their promulgation by the SRSG“. However, in this case, promulgation of the Law on Higher Education without amendments recommended by the Special Panel would be contrary to obligations of SRSG in the field of protection of rights and interests of communities[183]. A year after it was adopted, SRSG promulgated the Law on Higher Education in Kosovo. He did it by adding a new provisional supplement to Article 10 by which the University in Kosovska Mitrovica acquired temporary accreditation: “All providers of higher education that were authorized to operate in the academic year 2001-02 will get the license for work by this Law and in accordance with the international principles of non-discrimination, in an effort to reach standards envisaged by the Law“. Since then, SRSG is each year extending the accreditation to this University by decree.[184]
139. The Law on Higher Education, as basic legislation in this field in Kosovo and Metohija, contains a series of other shortfalls which indirectly discriminate the Serbian-speaking communities. Namely, this document, or any other legislation adopted in Kosovo since 1999, does not contain a provision which explicitly stipulates the right to higher education in one’s own language. The Law on Higher Education only generally stipulates that “objects of higher education are [...] to provide opportunities for all inhabitants of Kosovo with the ability to benefit from such education, throughout their lives.“[185], while the Ministry of Education of Provisional Institutions of Self-Governments of Kosovo is responsible for “promoting equality of opportunity in access and admission to higher education“.[186] Therefore, although it represents a fundamental law in the field of higher education, not a single provision of the Law on Higher Education says that Albanian and Serbian are official languages in Kosovo, and that, accordingly, the system of higher education should be based on principle of equality of these two languages in institutions of higher education and their programs. The Law contains only general prohibition of discrimination regarding approach to higher education in Kosovo and Metohija (Section 3.1) and prohibition of discrimination against students.[187]
140. The Law on Higher Education does not contain any other guarantees necessary for effective functioning of a bilingual system of higher education either, such as affirmative measures in fields of employment in institutions of higher education, provisions on equal use of official languages in these institutions and use of official languages on diplomas of institutions of higher education in Kosovo.
141. Despite claims by UNMIK about existing investments aimed at reconstructing 156 destroyed Orthodox churches in Kosovo[188], set as specific priority, no real positive progress has been observed in that regard. On the contrary, certain activities of local authorities can be perceived as directly aimed against preservation of the Serb cultural heritage in Kosovo.
142. The position of the Serbian Orthodox Church is still very difficult in Kosovo. The huge number of churches, monasteries and other temples are destroyed or severely damaged since June 1999. Destruction, burning down and attacking of 117 churches, monasteries and innumerable cemeteries happened in the second half of 1999, in the presence of several thousand soldiers of international forces and UNMIK. That must not be forgotten and made insignificant as previous destruction, despite unprecedented and unseen repeated destruction of other and the same monasteries, churches, monuments of culture, cemeteries and everything else with a Serb or Orthodox sign which happened on March 17 and 18, 2004. In the two-day March pogrom alone, 34 buildings or locations of the Serbian Orthodox Church under management of the Eparchy of Raska and Prizren and Kosovo and Metohija were destroyed, burned down or damaged. The most affected were churches and monasteries. Of that number in the March pogrom, 18 buildings were monuments of culture of the Serbian cultural heritage in Kosovo, and of the total number of damaged buildings (monasteries and churches), 60 are monuments of culture of the Serbian cultural heritage. These numbers are incomprehensible. In this century, an unthinkable pogrom is being carried out, seizing of the land, human and cultural genocide against Serb people and its heritage. Qualification “crime against cultural heritage” in Kosovo was entered into Resolution 26, XXXI of the General Conference of UNESCO.
143. The events from March 17, resulted in new expulsion, displacement and pogrom of population and monuments of culture in Kosovo. By expelling Serbs and “erasing” their cultural heritage which testifies of emergence of the state of Serb people, Albanians from Kosovo are trying to rewrite and falsify history. The destruction exceeded the one from 1999 (after the war). Two monuments were burnt down (monastery of St. Archangel, sepulchral temple of King Dusan and unique city church of Bogorodica Ljeviska), which were, in the Report of UNESCO mission in Kosovo in 2003 deemed monuments of universal significance (of the total of six such monuments in Kosovo).
144. Mostly all churches and many monasteries suffered some damages (the example are Prizren churches, especially the church of Bogorodica Ljeviska and Holy Salvation then church of St. Andrew in Podujevo, church of Holy Mother of God in Belo Polje, church of St. Ilija in Vucitrn and others) or were completely destroyed (for example, monasteries: Zociste near Orahovac, Holy Trinity near Musutiste, Devic near Srbica, Dolac near Klina, St. Mark’s in Korisa, St. Archangels’ in Gornje Nerodimlje, St. Archangel Michael in Buzovik and others; and churches: St. George in Prizren, Recani and Siga, Virgin Hodegetria in Musutiste, Holy Mother of God in Suva Reka, Church of Holy Trinity in Djakovica, Birth of Holy Mother of God in Softovic, St. Nicholas in Pristina, Prizren, Slovinj, Djurakovac, Stimlje, Popovljan, Mlecani, Kijev, Donje Nerodimlje, Sicevo, Bistrazin, Ljubizda and Cabici, St. Petka in Drsnik, Most Holy Mother of God Sajkovac and others), even in the form of annihilating-making all the traces disappear – even the foundations of churches (example: church of Most Holy Mother of God with its parochial home in Djakovica). Together with the destruction of monasteries, churches, cemeteries and other, over 10,000 icons were destroyed, as well as church art and church service objects. It is interesting that, before the churches were burnt down or blown up, the looting of movable Orthodox treasure happened and that it is currently being exploited at the world illegal market of antiquities and art objects, old manuscripts and other rarities.
145. As an example of institutional usurpation of property we can offer the example of a Serbian Orthodox Church in Djakovica. The Church of Holy Trinity in Djakovica was torn down by Albanian extremists in 1999. In the place of the destroyed church, municipality of Djakovica started works on construction of city park, despite the fact that the land in the Cadastre is registered to Serbian Orthodox Church. Bishop of Lipljan Teodosije sent a protest to UNMIK and Council of Europe.
146. The municipality of Decani refused to carry out the executive decision made by SRSG Joachim Ruecker on 17 May 2008, returning to the Decani monastery 24 hectares of land which the Communist authorities took away from the monastery after WWII. Serbian Government made a Decision in 1996 that this land be returned to the monastery. After 1999, municipal authorities of Decani still treated this land as socially-owned and erased the monastery from the Cadastre as owner. On 17 May 2008, on insisting of Bishop Teodosije, Ruecker made the Decision that the land be returned to the monastery and ordered the municipal authorities to enter it into Cadastre once again as the owner. Local Assembly of Decani declaratively rejected the carrying out of this UNMIK Decision and decided to terminate all contact with local UNMIK staff. Bishop Teodosije informed the UN headquarters in New York about the case.
147. One of the priorities for reconstruction, because of its exceptional religious and cultural significance, should also be the Church of Holy Trinity in Djakovica. After a series of cardinal damages and ignoring from authorities in its recent history, that Church was fully reconstructed in 1992, after denationalisation of the church plot. In July 1999, it was blown up by local Albanian residents. It was additionally damaged in 2004, when only foundation and parts of a wall remained. Although this location is included in the Memorandum on the Restoration of the Holy Sites Destroyed which were damaged in March 2004 and despite secured finances from the Donor Conference in 2005, UNMIK never even attempted to reconstruct it, because the reconstruction of this church is considered to be a politically sensitive issue. The principle and duty to preserve cultural heritage dictates that, if the already damaged monument cannot be reconstructed due to current lack of finances, it at least must not be deteriorated further. However, representatives of the municipality of Djakovica undertook a series of steps aimed at worsening the current situation. Representatives of local authorities together with members of the Association of War Veterans of the so-called Liberation Army of Kosovo, erected the monument to the “heroes of war’ in the plot which belongs to the Serbian Orthodox Church (later removed). In September 2007, the place where the church stood was once again cleaned up, in order to remove the remains of the temple, and in early 2008 almost all signs of its existence were completely removed. In the place of the church, local authorities built a public park.
148. Similar activities aimed at making the access more difficult, disrespect and direct annihilation of cultural heritage were carried out in the territory of Kosovska Kamenica, where the church in the village of Tomance was turned into a waste dump, and the church of St. Petka in Dobrocan, damaged in 1999, was covered in waste. In Prizren, in a part of the plot Crven breg owned by the Serbian Orthodox Church, 12 houses were built for the local Albanian population, completely preventing access to the plot in order to be used. In the yard of the church of Apostle Peter and Paul in Petrovac which was destroyed in 1999, a monument to the KLA was erected.
149. As an exceptionally frequent problem we have the vandalizing of gravestones on Serb cemeteries. According to existing data of the Serbian Orthodox Church, local Albanian population destroyed 5,250 monuments in 254 cemeteries[189], while in over 50 cemeteries there is not a single untouched gravestone. In gross negligence, on the hill above the Serb cemetery in Zakovo (municipality of Istok), local Albanian community built a water tank, which caused landslide and extensive damage to graves.
150. Another example of manifest attempt to root out Serb national identity and gross perversion of historical facts is the content of the presentation of tourist offer in Kosovo, under sponsorship of Provisional Institutions of Self-Government in Kosovo (Tourism Department of the Ministry of Industry and Trade).
151. In the International Fair of Tourism in Ohrid (FYR Macedonia) held between 17 and 20 January, 2008, four brochures of the Kosovo Tourist Association[190] were distributed with signs of statehood of Provisional Institutions of Self-Government in Kosovo, which presented monasteries of Decani, Gracanica and the Pec Patriarchate without mention of their Serb origin[191]. When it comes to Pec Patriarchate, there was a warning to “be ready to hear the other side of the Kosovo story as well, as told by the Serb church community, from their angle“.[192] Above the text about the Catholic church, there was a photograph of the Orthodox church of St. George in Prizren, without a mention that it is an Orthodox church damaged in the March pogrom of 2004. Left out were the information about Serbian religious and cultural heritage when mentioning Sredacka Zupa. There was also no mention of existence of 15 Serbian churches, some of which are monuments of culture of exceptional significance for the Republic of Serbia. The same was left out when mentioning Rugovska and Decani gorges on which there are Orthodox hermit cells. There were incorrect historical and expert information (for example, claims that Emperor Dusan “conquered Albanian land” in 1346, that “Orthodox churches date back to the Byzantine period”, etc.) In such international presentation of historical and cultural characteristics of Kosovo, Serb cultural identity is completely marginalised and presented only through the prism of Kosovo multi-ethnicity.
152. Identical errors when it comes to identification and recognition of non-Albanian and Serb cultural heritage was observed on official internet presentation of the tourist offer of Kosovo supported by Provisional Institutions of Self-Government in Kosovo.[193] As part of the presentation of the tourist offer, basic protected pillars of the Serb cultural heritage in Kosovo such as Gracanica (recognised by UNESCO) were for a long time presented as Albanian, or Illyrian cultural heritage[194], without any mention of their Serb origin. The usual practice is also renaming of the most important Serb churches, which are, despite frequent objections, consistently called alternatively “castle”[195].
153. Permanent incorrect presentation of historical and expert data can justifiably be interpreted as a part of strategy of alienation of Serb cultural heritage in Kosovo from Serb people who have created and are its legal owner. Such behaviour violates the principle of preservation, development and spreading of culture, as a right of the individual to participate in cultural life. Such practice demands broader condemnation of UNMIK and broad international public which should undertake appropriate measures.
154. Special problem is the actual rooting out of Serb language, as one of the three languages in official use in Kosovo, through the practice of writing incorrect topographical names as symbols of ethnic presence and part of national treasure. It is a relatively frequent phenomenon that instead of Serb names to write the Albanized version[196] or use official new-Albanian names. This practice directly opposes the Article 9.4 of UNMIK Regulation 2000/45[197] which stipulates bilingual (Albanian-Serb) official signs of names of cities, villages, roads, streets and other public places in Kosovo.
ANNEX 2
LABOUR MARKET
Table 1
|
Basic indicators of labour market of Roma
population
|
||||||||
|
|
Unemployment rate
|
Employment rate
|
Activity rate
|
Inactivity rate
|
||||
|
Total
|
Roma
|
Total
|
Roma
|
Total
|
Roma
|
Total
|
Roma
|
|
|
Total
|
16.4
|
40.7
|
50.8
|
27.8
|
60.8
|
46.8
|
39.2
|
53.2
|
|
Males
|
15.0
|
28.0
|
58.7
|
42.6
|
69.0
|
59.1
|
31
|
40.9
|
|
Females
|
18.1
|
68.2
|
43.3
|
10.3
|
52.8
|
32.3
|
47.2
|
67.7
|
Source: Survey on labour force, Statistical Office of the Republic of Serbia (Note: Sample of Roma from ARS, 2009, do not contain Roma with highest level of education).
Table 2
|
Number of the unemployed included in the measures of
active employment policy carried out by the National Employment Strategy
2005-2010
|
||
|
Measure
|
2009
|
|
|
Number of persons included in the measure
|
Effects on employment
|
|
|
Career management and counselling
|
93.377
|
16.327
|
|
ATP-1
|
35.911
|
6.229
|
|
Self-efficiency training/ATP-2
|
1.975
|
/
|
|
Clubs for seeking jobs
|
3.190
|
642
|
|
Employment fairs
|
52.301
|
9.456
|
|
Programs of additional education and training
|
20.515
|
19.097
|
|
Probationary employee
|
17.150
|
17.150 *
|
|
Trainings
|
3.365
|
1.947
|
|
Employment subsidies
|
11.732
|
11.732
|
|
Self-employment subsidies
|
5.303
|
5.303
|
|
New job opening subsidies
|
6.429
|
6.429
|
|
Public works
|
10.160
|
10.160 **
|
|
TOTAL
|
135.784
|
57.316
|
|
* Employed as probationary employee for a definite time.
|
|
|
** Employed for a definite time for the duration of public work.
|
|
Table 3
|
Fluctuation of employment and unemployment
rate[198]
|
||||||
|
Year
|
2005
October
|
2006
October
|
2007
October
|
2008
October
|
2009
April
|
2009
October
|
|
General unemployment rate
(15 – 64 years of age)
|
21,80%
|
21,60%
|
18,80%
|
14,70%
|
16,40%
|
17,40%
|
|
General employment rate
(15 – 64 years of age)
|
51,00%
|
49,90%
|
51,5 %
|
53,30%
|
50,80%
|
50,00%
|
Source: Statistical Office, Survey on labour force
Table 4
|
Basic indicators of the labour market (15-64) according to
gender
|
||||||||
|
APS for persons of working age
15-64 years of age
|
April 08
|
October 08
|
April 09
|
October 09
|
||||
|
m
|
f
|
m
|
f
|
m
|
f
|
m
|
f
|
|
|
Employment rate
|
62.3
|
46.0
|
62.2
|
44.7
|
58.7
|
43.3
|
57.4
|
42.7
|
|
Unemployment rate
|
12.4
|
16.1
|
12.7
|
17.3
|
15.0
|
18.1
|
16.1
|
19.1
|
|
Activity rate
|
71.1
|
54.8
|
71.3
|
54.1
|
69.0
|
52.8
|
68.4
|
52.8
|
|
Inactivity rate
|
28.9
|
45.2
|
28.7
|
45.9
|
31.0
|
47.2
|
31.6
|
47.2
|
Source: Survey on labour force, Statistical Office of the Republic of Serbia
ANNEX 3
Regulations in the filed of safety and health at work
- The Law on Safety and Health at Work (Official Gazette, No. 101/05);
- Rule Book on the method and procedure of risk assessment at work station and in work environment (Official Gazette, No 94/06, 108/06 и 30/10);
- Rule book on conditions and amount of expenses for issuing licenses for work in the field of safety and health at work (Official Gazette, No. 29/06, 72/06 and 62/06);
- Rule book on program, method and amount of expenses taking expert exam for carrying out duties of safety and health at work and jobs of persons in charge (Official Gazette, No. 29/06 and 62/07);
- Rule book on procedure of establishing whether regulated conditions in the field of safety and health at work are met (Official Gazette, No. 60/06);
- Rule book on amount of expenses of procedure for establishing whether regulated conditions in the field of safety and health at work are met (Official Gazette, No. 60/06);
- Rule book on records in safety and health at work (Official Gazette, No. 62/07);
- Rule book on previous and periodical medical exams of employees at work station with increased risk (Official Gazette, No. 120/07 and 93/08);
- Rule book on content and method of issuing report forms on injuries at work, professional sickness and work related sickness (Official Gazette, No. 72/06 and 84/06);
- Rule book on procedure of testing and examining work equipment and examining conditions of work environment (Official Gazette, No. 72/06 and 84/06);
- Rule on preventive measures for safe and health work by using means and time for personal protection at work (Official Gazette, No. 23/08);
- Provision on safety and health at work in temporary and movable construction site (Official Gazette, No. 14/09);
- Rule book on preventive measures for safe and health work at work station (Official Gazette, No.21/09);
- Rule Book on preventive measures for safe and healthy work when using work equipment (Official Gazette, No.23/09);
- Rule Book on preventive measures for safe and healthy work when handling burden manually (Official Gazette, No. 106/09);
- Rule Book on preventive measures for safe and healthy work when using work equipment with a screen (Official Gazette, No. 106/09);
- Rule Book on preventive measures for safe and secure work when exposed to asbestos (Official Gazette, No. 106/09, 6/10-correction and 15/10-correction);
- Rule Book on preventive measures for safe and healthy work when exposed to chemical materials (Official Gazette, No. 106/09).
Regulations in the field of safety and health at work adopted by the Assembly of the Republic of Serbia and Government of the Republic of Serbia in 2009:
- Law on ratification of International Labour Organization’s Convention No. 187 for Promotional Framework on Occupational Safety and Health (Official Gazette, No.42/09);
- Law on ratification of International Labour Organization’s Convention No. 167 on Safety and Health in Construction (Official Gazette, No.42/09);
- Law on ratification of Revised European Social Charter (Official Gazette, No. 42/09).
ANNEX 4
DOMESTIC VIOLENCE
Table 1
Domestic violence, Article 194 of Criminal Code
2006
2007
2008
2009
I-IV 2010
Total
Number of criminal offences from Article 194
1.904
2.605
2.980
3.396
1.220
12.105
Number of criminal offences reported
1.871
2.569
2.932
3.313
1.196
11.881
Incarceration under Article 227 CC
67
73
94
110
40
384
48 hours custody under Article 229 CC
98
191
277
313
163
1.042
Table 2
YEARS
AGE/GENDER
М
F
TOTAL
М
F
TOTAL
М
F
TOTAL
М
FЖ
TOTAL
М
F
TOTAL
М
F
TOTAL
UP TO 14
71
63
134
82
68
150
86
93
179
87
98
185
21
25
46
347
347
694
14 AND 18
19
54
73
28
50
78
37
63
100
41
85
126
17
21
38
142
273
415
18 AND 21
19
46
65
12
73
85
21
81
102
20
104
124
12
27
39
84
331
415
21 AND 30
29
287
316
53
404
457
58
430
488
96
481
577
36
165
201
272
1.767
2.039
31 AND 40
24
382
406
44
540
584
53
592
645
64
686
750
23
226
249
208
2.426
2.634
41 AND 50
35
383
418
54
464
518
62
533
595
91
603
694
37
187
224
279
2.170
2.449
51 AND 60
87
260
347
103
357
460
137
393
530
147
433
580
63
137
200
537
1.580
2.117
60 AND OLDER
113
194
307
151
252
403
144
318
462
190
346
536
64
108
172
662
1.218
1.880
TOTAL
326
1.606
1.932
445
2.140
2.585
512
2.410
2.922
649
2.738
3.387
252
871
1.123
2.184
9.765
11.949
AGE AND GENDER STRUCTURE OF PERSONS DAMAGED BY CRIMINAL ACT OF DOMESTIC VIOLENCE IN PERIOD BETWEEN 2006 AND APRIL 2010.
IN TERRITORY OF THE REPUBLIC OF SERBIA
2006
2007
2008
2009
I-IV 2010
TOTAL
Table 3
YEARS
AGE
/
GENDER
M
F
??????
TOTAL
M?
F?
??????
TOTTAL
M?
F?
??????
TOTAL
M?
?F
??????
TOTAL
M?
F?
??????
TOTAL
M
FF
??????
TOTAL
14
-
18
20
2
22
24
3
27
38
5
43
52
7
59
14
2
16
148
19
167
18
-
21
36
4
40
49
4
53
48
8
56
71
4
75
26
2
28
230
22
252
21
-
30
338
19
357
427
26
453
451
35
486
570
31
601
181
16
197
1.967
127
2.094
31
-
40
498
23
521
626
32
658
681
50
731
730
58
788
286
14
300
2.821
177
2.998
41
-
50
498
23
521
653
36
689
763
30
793
830
46
876
252
22
274
2.996
157
3.153
51
-
60
321
10
331
415
19
434
467
26
493
531
28
559
189
6
195
1.923
89
2.012
60 +
106
6
112
181
12
193
197
12
209
243
25
268
64
5
69
791
60
851
TOTAL
1.817
87
1.904
2.375
132
2.507
2.645
166
2.811
3.027
199
3.226
1.012
67
1.079
10.876
651
11.527
AGE AND GENDER STRUCTURE OF PERSONS WHO COMMITTED CRIMINAL ACT OF DOMESTIC VIOLENCE IN PERIOD BETWEEN 2006 AND APRIL 2010
.
.
IN TERRITORY OF THE REPUBLIC OF SERBIA
2006
2007
2008
2009
I- IV 2010
??????
NEGLECT AND ABUSE OF CHILDREN
Table 4
m
f
total
m
f
total
м
f
total
м
f
total
2006
3.737
992
810
1.802
515
379
894
904
474
1.378
2.411
1.663
4.074
2007
4.125
1.124
887
2.011
556
384
940
895
495
1.390
2.575
1.766
4.341
2008
4.403
1.290
979
2.269
608
426
1.034
957
529
1.486
2.855
1.934
4.789
2009
4.431
1.163
890
2.053
569
423
992
868
582
1.450
2.600
1.895
4.495
I-IV 2010
1.128
233
170
403
123
90
213
229
127
356
585
387
972
TOTAL
17.824
4.802
3.736
8.538
2.371
1.702
4.073
3.853
2.207
6.060
11.026
7.645
18.671
TOTAL NUMBER
OF CRIMINAL OFFENCES
14-16
TOTAL NUMBER OF CRIMNAL OFFENCES COMMITTED AGAINST UNDERAGE PERSONS (WITH AGE AND GENDER STRUCTURE)
IN THE PERIOD BETWEEN 2006 AND APRIL 2010 IN THE TERRITORY OF THE REPUBLIC OF SERBIIA
AGE/
gender
16-18
UNDERAGE CHILDREN
Total number of underage damaged by the criminal offence
UP TO 14
CHILDREN
Table 5
CHILDREN WITHOUT PARENT CARE
Table 6
|
Reason for the absence of parent care
|
2007
%
|
2008
%
|
|
Parents deceased
|
12,7%
|
11,8%
|
|
Parents unknown
|
0,4%
|
0,3%
|
|
Parents completely stripped of parenting right
|
5,7%
|
7,4%
|
|
Parents partially stripped of parenting right
|
3,8%
|
4,4%
|
|
Parents prevented from performing parenting duties
|
22,9%
|
21,2%
|
|
Inadequate parent care
|
55,5%
|
54,9%
|
|
Total number of children
|
9.572 = 100,0
|
9.790 =100,0
|
Table 7
|
End of 2008:
Age of children and youths without parent care
|
Male children
|
Female children
|
Total children
|
|
Between 0 and 2 years
|
203
|
220
|
423
|
|
Between 3 and 7 years
|
909
|
857
|
1.766
|
|
Between 8 and 17 years
|
2.749
|
2.629
|
5.378
|
|
17 years and older
|
554
|
543
|
1.097
|
|
Total number of children and youths without parent care
|
4.415
|
4.249
|
8.664
|
Table 8
|
Users – children without parent care.
Type of measures, forms, services:
|
2007
|
2008
|
|
Adoption
|
131
|
147
|
|
Custody
|
4863
|
5262
|
|
Temporary custody
|
1157
|
1362
|
|
Foster parents
|
3809
|
4238
|
|
Social protection institution
|
1459
|
1392
|
|
Material security
|
2570
|
2997
|
Table 9
|
Users – children with disability
Type of measures, forms, services:
|
2007
|
2008
|
|
Adoption
|
12
|
15
|
|
Custody
|
657
|
744
|
|
Temporary custody
|
286
|
308
|
|
Foster parents
|
376
|
364
|
|
Social protection institution
|
1066
|
982
|
|
Material security
|
1009
|
1167
|
|
Allowance for aid and care and increased allowance
|
6386
|
6949
|
|
Professional training (rehabilitation)
|
449
|
468
|
ANNEX 5
THE RIGHT TO WATER
Table 1
|
METHODS OF SOLVING PROBLEM WHEN WATER IS NOT AVAILABLE ACCORDING TO THE
TYPE OF SETTLEMENT
|
|||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
Belgrade
|
cities
|
villages
|
|
|
|
|
|
|
|
|
|
||
|
Use alternative source of drinking water
|
|
70,9
|
73,8
|
59,5
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Use previously stored water
|
|
22,8
|
27,4
|
26,5
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Addresses neighbour for help
|
12,8
|
15,8
|
31,2
|
|
|
||
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
100%
|
100%
|
100%
|
|
|
Source: Study on living standard – Serbia 2002 - 2007.
Table 2
|
APARTMENT FOR PERMANENT RESIDENCE ACCORDING TO HOW THEY ARE EQUIPPED
WITH WATER INTALLATIONS
|
|
|
|
||||
|
|
|
|
|||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Type of settlement
|
|
Total population
|
Equipped with water installations
|
Equipped in per cent
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Urban settlements
|
No.
|
2743996
|
2453319
|
89,4
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other settlements
|
No.
|
1551036
|
1521326
|
98,1
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
source: Census of population, households and apartments, 2002.
|
|
|
|||||
|
Statistical Office of the Republic of Serbia
|
|
|
|
|
|||
THE RIGHT TO ADEQUATE HOUSING
|
Data on shelters for adults and users according to years of age 1)
|
|
|
|||||||||
|
|
|
|
|
|
|
|
|
|
|||
|
|
Shelters in the Republic of Serbia
|
users
|
Younger than 18
|
18-27
|
28-40
|
41-60
|
61 and older
|
||||
|
|
|
total
|
women
|
|
|
|
|
|
|||
|
2006
|
3
|
545
|
232
|
6
|
46
|
74
|
219
|
200
|
|||
|
2008
|
3
|
511
|
227
|
8
|
33
|
64
|
171
|
235
|
|||
|
|
|
|
|
|
|
|
|
|
|||
|
1) Data on shelters are collected in a two year period
|
|
|
|
|
|
||||||
|
|
|
|
|
|
|
|
|
|
|||
|
source: Bulletin of the Statistical Office of the Republic of Serbia
|
|
|
|
|
|
|
|
||||
Table 3
[1] Е/1990/5/Add.61
[2] On February 4, 2003, Federal Republic of Yugoslavia changed its name into Serbia and Montenegro.
[3] Е/С.12/1/Add108
[4] UN/doc. Е/С.12/UNK/1
[5] See articles 77 and 76 of the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights (Limburg Principles) (2-6 June, 1986).
[6] Article 11 (ј) of the UN Security Council Resolution 1244 (10 June 1999).
[7] UNMIK Regulation 1999/24 (12 December 1999) оn the Law Applicable in Kosovo, amended by the UNMIK Regulation 2000/59 (27 October 2000).
[8] Article 1.3 (d) of Regulation 1999/24 (12 December 1999) оn the Law Applicable in Kosovo. See articles 17 and 19 of the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights from science gathering in Maastricht 22-26 January 1997 (hereinafter: Maastricht Guidelines).
[9] UNMIK Regulation 2001/9 (15 May 2001)
[10] Article 3.3 of Regulation 2001/9: “The provisions on rights and freedoms set forth in these instruments shall be directly applicable in Kosovo as part of this Constitutional Framework.”
[11] Article 1.1. of UNMIK Regulation 1999/24.
[12] Ibid, Article 1.2.
[13] Ibid, Article 1.1.
[14] Ibid, Article 2.
[15] See European Commission for democracy Through Law (Venice Commission), “Opinion on Human Rights in Kosovo: Possible Establishment of Review Mechanisms“, Opinion No. 280/2004 (11 October 2004), CDL-AD (2004) 033, Section VI B (b), emphasis on paragraph 106.
[16] Human Rights Watch, “World Report for 2007“, page 419.
[17] The media campaign started in February/March 2008. It was conducted through just a couple of local TV stations broadcasting their programmes almost exclusively in the Albanian language and having no audience among the non-Albanian speaking communities. Statement of Mr John J. Ryan, HRAP Executive Officer given at a meeting with legal experts of the International Organization for Migration (IOM, Project of Institutional Support to the Government of the Republic of Serbia in the Refugee/IDP Sector) on 23 July 2008.
[18] Statement of Mr John J. Ryan, Ibid
[19] UNMIK Regulation 2006/6 (February 16, 2006) оn the Institution of Ombudsman in Kosovo.
[20] Anti-Discrimination Law No. 2004/32 promulgated by UNMIK Regulation 2004/32 оn Promulgation of the Anti-Discrimination Law, 20 August 2004.
[21] Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (published in OJ L 180 of 19 July 2000) and Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (published in OJ L303 of 2 December 2000)
[22] Section 2 of the Anti-Discrimination Law No. 2004/32.
[23] Ibid, Article 4.
[24] Ibid.
[25] Anti-Discrimination Law envisages special protection to minority communities through an explicit prohibition of discrimination in those fields which are of special significance for the survival and equal treatment of these communities. See Section 4, paragraph (h), (i), (k), (l), (m) Section 4 of the Anti-Discrimination Law No. 2004/32.
[26] Section 6 of the Anti-Discrimination Law No. 2004/32.
[27] Ibid, Article 9.
[28] “All reports on the human rights situation in Kosovo, particularly those concerning the so-called ‘vulnerable’ groups such as minority communities, persons with disabilities, women, children etc., talk about the huge marginalization of these categories of people, thereby confirming the presence of discriminatory practices in all spheres of public life.“ Hilmi Jashari, Kosovo Anti-Discrimination Law and the Role of Ombudsperson in it, see: OMIK, Implementing the Law on Anti-Discrimination – Challenge for Kosovo, Pristina, 2007, p. 22
[29] See similar conclusion of the Minority Rights Group International in its report on minority rights in Kosovo. Clive Baldwin, Minority Rights in Kosovo under Ineternational Rule, Minority Rights Group International, London, 2006.
[30] For example, the entire Law contains wrong lettering for ‘ć’, ’č’ and ’đ’.
[31] Administrative Instruction No. 04/2006 on implementation of the Anti-Discrimination Law, of 25 May 2006. This legal act has been unavailable to public for a long period of time. For instance, NGO Youth Initiative for Human Rights managed to get hold of its text only after it demanded from the Office of the Prime Minister a request for access to information of public importance. See: Youth Initiative for Human Rights, Report on implementation of the Anti-Discrimination Law, Pristina, 2007, p. 70.
[32] Milica V. Matijević, An Outline on the Implementation of the Kosovo Anti-Discrimination Law – the Serbian Perspective, see: OMIK, Implementing the Law on Anti-Discrimination – Challenge for Kosovo, Priština, 2007, p. 34.: ОМИК, Спровођење Закона против дискриминације – изазов за Косово, Приштина, 2007, стр. 34.
[33] Youth Initiative for Human Rights, Report on implementation of the Anti-Discrimination Law, Pristina, 2007, p. 72.
[34] Section 1 of the Administrative Instruction No. 04/2006.
[35] In its Section 8, the ADL transfers the burden of proof to the plaintiff once the discriminatory practice was established prima facie.
[36] The only claim with claimant invoking provisions of the Anti-Discrimination Law was filed by the Gorani community because of administrative silence, namely, because of lack of response on the part of the Ministry of Education, Science and Technology in the administrative proceedings. The Supreme Court rejected this claim by its decision of October 2007.
[37] Hilmi Jashari, Kosovo Anti-Discrimination Law and the Role of Ombudsperson in it, see: OMIK, Implementing the Law on Anti-Discrimination – Challenge for Kosovo, Pristina, 2007, p. 25
[38] Section 7, paragraph 6 of the Anti-Discrimination Law.
[39] Section 6, Paragraph 3 of the Anti-Discrimination Law.
[40] Annex to the Letter of 7 October 2005 from the Secretary-General addressed to the President of the Security Council - A comprehensive review of the situation in Kosovo, p. 11
[41] Article 2 (b) of the Anti-Discrimination Law.
[42] United Nations Interim Administration Mission in Kosovo, Report on Situation of Human Rights in Kosovo since June 1999, submitted to the UN Committee for Human Rights, February 2006, p. 41.
[43] Ibid, pages 43-44.
[44] Standards for Kosovo.
[45] Annex to the Letter of 7 October 2005 from the Secretary-General addressed to the President of the Security Council - A comprehensive review of the situation in Kosovo, p. 10.
[46] UNMIK Regulation 2001/9 on Constitutional Framework for Provisional Institution of Self-Government in Kosovo, from May 15, 2001.
[47] EULEX
[48] The Kosovo Trust Agency was established by UNMIK Regulation 2002/12. The other acts which regulate the business of the Kosovo Trust Agency are: Regulation 2002/13 оn founding and competences of the Special Chamber of the Kosovo Supreme Court for resolving issues from the competences of Kosovo Trust Agency; Regulation 2003/13 оn the procedure for privatization, Regulation 2005/48 оn reorganization and liquidation of company and their asset under administrative authority of Kosovo Trust Agency.
[49] Kosovo Trust Agency itself admits that it does not posses sufficient data by publicly declaring that it does not guarantee that any data it publicly announces is full or authentic.
[50] OSCE Report, Privatization in Kosovo: Judicial Review of Kosovo Trust Agency Matters by the Special Chamber of the Supreme Court of Kosovo (May 2008)
[51] Concrete reference to Article 1 of the Protocol 1 of the European Convention on Human Rights.
[52] This Supreme Court’s decision instituted direct application of Article 1 of the Protocol 1 to, and Article 6 of, the European Convention on Human Rights.
[53] UNMIK Regulation 2003/13 in Section 10.1 establishes that employees shall be entitled to a share of the proceeds from the privatisation on a priority basis. This share shall be 20 per cent of the proceeds from the sale of shares of a subsidiary corporation of a Socially-owned Enterprise that is privatised pursuant to
section 8 of Regulation No. 2002/12.
[54] UNMIK Regulation 2003/13 establishes procedure for privatization, as well as bases, conditions and procedure for participation of employees in the process of privatization.
[55] Pursuant to Section 10.3 of Regulation 2003/13: “The official list of eligible employees issued by the Agency shall be published, together with a notice of the right of complaint pursuant to 10.6, on two consecutive workdays and the following weekend in major Albanian language publications of general circulation in Kosovo and major Serbian language publications.“ The subsequent complaint then must be filed with the Special Chamber within 20 days after the final publication in the media (Section 10.6a). However, many displaced persons cannot afford to regularly buy a newspaper, and there are no newspapers of general circulation in Serbian language in Kosovo.
[56] Majority of internally displaced persons and repatriates who can submit claims to title, ownership or interest related to property which currently is or was under administrative management of the Kosovo Trust Agency is not aware of their own rights or does not have enough knowledge about complex legal procedures pursuant to which they can exercise and protect their rights. At the same time, at the time when majority of privatization was carried out, there was almost no free legal aid in Kosovo and majority of internally displaced people and repatriates cannot afford a lawyer.
[57] Internally displaced persons and repatriates face serious problems when attempting to obtain documents which they have to submit with their requests. Many documents, such as employment record and other relevant proof of their earlier employment in enterprises that are being privatized, were destroyed during the conflict, or are otherwise unavailable. Acquiring necessary documents demands a lot of time and financial resources.
[58] Beside UNMIK Regulation 2005/48 which prescribes that all written materials prepared by the Kosovo Trust Agency should be published in three official languages (Section 50), all other UNMIK regulations which regulate participation of employees in the process of privatisation explicitly lack an obligation that Kosovo Trust Agency publish all forms and information in three official languages in Kosovo. There are cases when Kosovo Trust Agency was sending forms to workers who speak Serbian only in Albanian.
[59] If the internally displaced persons who worked in socially-owned companies manage to take part in the process of privatization, they are exposed to additional financial expense. At the completion of the procedure, claimants are required to come to Kosovo in person to execute the financial transaction. Travel expenses are just one of many other expenses such as: high prices for personal photographs which can be obtained only in a specified bank (8 Euros per set of pictures), 10 Euros for a mandatory membership card in a trade union of Kosovo and expenses of accommodation during the procedure which lasts at least two days, etc. There are no provisions which explicitly regulate this issue.
[60] Annex to the Letter of 7 October 2005 from the Secretary-General addressed to the President of the Security Council - A comprehensive review of the situation in Kosovo, p. 3.
[61] Another setback was ethnically motivated violence of March, 2004.
[62] By 2003 the exodus of members of non-Albanian communities was already finished.
[63] ICMPD Legal Team: Report on Gaps and Needs Analysis of the Legislative Framework Including Recommendations for Revisions and Complementary Legislation, Belgrade, July 2006. The Report identifies practical obstacles to the return of displaced persons and refugees, with special emphasis on property rights and indirect discrimination in Croatia and Kosovo.
[64] Privatisation and liquidation are regulated in more detail by UNMIK Regulation 2005/48
[65] For example, Electric Power Industry of Serbia (which today works under the name of Kosovo Energy Corporation) has been employing around 8,000 people of Serb and other nationalities by 1999. After numerous killings of Serbs and other employees in their working places, the rest stopped coming to work and went to displacement. In 2000, Kosovo Energy Corporation publicly called on former employees solely in Albanian-language media to return to their jobs by June 30, 2000, at the latest, or otherwise their employment will be terminated. This practice is only seemingly in accordance with the law, since the displaced persons virtually had no opportunity to be informed of such invitation which was reported only by Albanian-language media; security situation in 2000 was very risky and demanded that KFOR has its checkpoints in front of every Serb-populated settlement and convoys with armed escort; in negotiations between Serbian Government and UNMIK on re-employment of these employees, KFOR offered to provide them with armed escort when going to and from work, but could not guarantee them safety at the work . Therefore, such invitation to former employees and termination of their employment which ensued bears all characteristics of discrimination.
[66] UNMIK Regulation No. 1999/12, 14 October 1999.
[67] Humanitarian Law Centre – Kosovo, “Implementation of the Anti-Discrimination Law and Law on Use of Language in public companies in Kosovo”, December, 2007.
[68] There are exceptions when Bosniaks and Turks requested to get an employment contract in Albanian language. Although this is not explained in report, it may have been an attempt of individuals to mitigate tensions and humor the majority population by such gesture.
[69] Kosovatrans is a public transportation company.
[70] Termokos is a remote heating company in Pristina.
[71] Remote Heating Company Djakovica.
[72] UNMIK Regulation 2001/35 on pensions in Kosovo, amended by UNMIK Direction 2005/20, 22 December 2005.
[73] UNMIK Regulation 2000/66 оn benefits for war invalids of Kosovo and next of kin of those who died as a result of the armed conflict in Kosovo, 21 December 2000.
[74] UNMIK Regulation 2003/40 оn disability pensions in Kosovo, 17 December 2003.
[75] UNMIK Regulation 2003/28, 18 August, 2003, Section 5 and adjoining Administrative Instruction 8/2004.
[76] For example, according to available information, in the territory of municipality of Klina, this practice has never taken root.
[77] ICMPD Legal Team: Report on Gaps and Needs Analysis of the Legislative Framework Including Recommendations for Revisions and Complementary Legislation, Belgrade, July 2006, p. 39. The Report identifies practical obstacles to the return of displaced persons and refugees, with special emphasis on property rights and indirect discrimination in Croatia and Kosovo.
[78] UNMIK Regulation 2000/66 оn benefits for war invalids in Kosovo and next of kin of those who lost their lives in armed conflict in Kosovo, 21 December 2000.
[79] Statistical Office of Kosovo, Report on the number of users of social assistance and pensions in Kosovo in 2004, Pristina, October, 2005, table 2.2.
[80] The legal grounds for their operation are Resolution 1244 (1999) UNSC and Common Document: Agreement on Cooperation between the Federal Republic of Yugoslavia and UNMIK, signed by Nebojsa Covic, the then President of the Coordination Centre for Kosovo and Metohija, and Hans Haekerup, the then Special representative of the Secretary-General of the UN, November 2001..
[81] In Serb communities in the territory of Kosovo there are eight centres for social work: Social Work Centre Kosovska Mitrovica (covers enclaves in Metohija as well), Social Centre Work Leposavic, Social Centre Work Zubin Potok, Social Centre Work Srbica, Social Centre Work Vucitrn, with headquarters in Priluzje, Social Centre Work Kosovska Kamenica (for municipalities of Kosovska Kamenica, Vitina and Gnjilane) based in Ranilug, Social Centre Work Pristina based in Gracanica, Social Centre Work Strpce with outpost in Gora).
[82] More detailed data on assistance presented in table in Annex 3.
[83] See, UNHCR, UNHCR’s Position Paper on Continued International Protection Needs of Individuals from Kosovo June 2006, page 3, paragraph 6, available at http//www.unhcr.org.cgi-bin/texis/vtx/news/opendoc.htm?tbl=NEWS&id=44928257e, accessed on October 15, 2008.
[84] Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 4 (The Right to Adequate Housing from Article 11 (1)), Paragraph 7.
[85] Ibid, Paragraph 13.
[86] The data is based on direct experience and information of Ministry for Kosovo and Metohija of the Republic of Serbia, non-government organization Praksis and International Organisation for Migration (Project of institutional support to government of the Republic of Serbia in sector for refugees and internally displaced persons.).
[87] CESCR, General Comment No. 4, Paragraph 8 (а).
[88] Article 9.7 of the UNMIK Regulation 2000/60 (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. An exception from this obligation, in a sense of providing the parties with only summaries of the documents presented by the other party(ies) is possible only “in appropriate cases” which can hardly (if anyhow) be applicable to the procedures initiated upon the reconsideration requests.
[89] According to internal classification of Housing Property Department, A-claims were submitted mostly by Kosovo Albanian who claimed that their right to housing property was denied to them solely on the basis of discrimination. C-claims were submitted mostly Serbs and member of other communities in order to prove ownership over real estate which was in factual and illegal possession of other parties.
[90] The cases when the C-claim is followed by an A-claim of an interested person who also asserts that he/she had had the property right (which determination is sought before the HPD), but that such right was once lost due to application of discriminatory laws in Kosovo and Metohija.
[91] See Ruiz-Mateos v. Spain, Verdict of the European Court for Human Rights from 23 June 1993, Paragraph 63.
[92] In such cases, HPD/HPCC regularly deemed themselves incompetent and passed on the cases to local courts in order to establish the disputed property right.
[93] See Article 1 of the UNMIK Regulation 1999/10 (October 13, 1999) which applies to repealing of discriminatory laws related to real estate and ownership rights.
[94] Stance of the Human Rights Committee оn “influencing executing decisions” in legal matters and recommendation for establishing “clear distribution of competences among executive and legal bodies“, Closing Remarks of the Human Rights Committee: Romania, UN doc CCPRC/C/79/Аdd 111 (28 June 1999), Paragraph 10.
[95] Clarification of the Special Representative of the UN Secretary-General of UNMIK Regulation No. 2000/60 from April 12, 2001, Paragraph 21, available at: http//www.hpdkosovo.org/pdf/engclari/pdf. Updated on 1 August 1 2007.
[96] Article 14.2 of Regulation 2000/60.
[97] Article 22.1 of Regulation 2000/60.
[98] Ibid, Article 22.3: “The Commission shall not award any remedies other than those provided for in the present regulation.“
[99] Regulation 2000/60, Article 3.3.
[100] Ibid, Article 4.2.
[101] Ibid,
[102] Ibid, Article 4.2 and 4.4
[103] Ibid, Article 4.4.
[104] Ibid, Article 4.5.
[105] Source of information is Mr. Agron Beka, coordinator of the Kosovo Property Agency’s enforcement unit – conversation conducted in March 2007.
[106] Article 23 of Maastricht Guidelines.
[107] Article 15 of Maastricht Guidelines.
[108] CESCR, General Comment No. 7 (оn the right to appropriate housing from Article 11 (1): forced eviction), Paragraph 13.
[109] UNMIK Regulation 2006/50 on the resolution of claims relating to private immovable property, including agricultural and commercial property.
[110] Article 8 in relation to Article 26
[111] Ibid, Article 22
[112] Article 21, Regulation 2006/50.
[113] Article 12.8 of Regulation 2006/50.
[114] Ibid, Article 17, see UNMIK Regulation 2006/10 (changed and amended by Regulation 2006/50).
[115] See e.g. the case Stamenko Kovacevic v. UNMIK, The Institution of Ombudsperson in Kosovo, No. 592/02.
[116] See Article 259 of the Law, or UNMIK Regulation 2003/25 (July 6, 2003)
[117] At first there were four multinational brigades – South and East were making one (MNTF-SW). As of May 15, 2006, MNTF-S (South) exists as a special multinational brigade.
[118] CESCR, General Comment, No. 7, Paragraph 3.
[119] Article 1 Paragraph 2 and Annex B of the Military-Technical Agreement.
[120] Ibid, Article 3 of Annex B.
[121] Article 2 of Regulation 2000/47.
[122]Ibid, Article 7.
[123] Ibid, Article 6.
[124] Ibid.
[125] See e.g. Margaret Cordial, ‘Outline of Presentation on the Situation in Kosovo’ in International Committee of the Red Cross, Report on Applicability of International Humanitarian Law and International Human Rights Law to UN Mandated Forces (2004 ICRC, Geneva), p. 52, available at www.icrc.org.
[126] Resolution 1244, preamble, paragraph 13, point 6 (emphasis added). See point 9 (f). See also Official web-site of NATO/KFOR, www.nato.int/kfor/kfor/objectives.htm. See Venice Commission, Opinion on Human Rights in Kosovo, para. 79.
[127] Ombudsperson Institution in Kosovo, „Seventh Annual report for 2006-2007“
[128] EAR, “Feasibility Study for Evaluation of Scope and Nature of Work on Administrative Mechanism for Settlement of Disputes Related to Land and Commercial Property in Kosovo, Final Report“, (December 2004)
[129] Construction in Kosovo is regulated in Kosovo by UNMIK Regulation 2000/53 оn construction in Kosovo, or the Luci Regulation. It was named after Rexhep Luci, who, doing seriously the job that’d been assigned to him on trying to put illegal construction into order, ordered cessation of work and demolition of a certain number of illegal buildings. He was murdered soon afterwards, under mysterious circumstances. His murdered was never found or brought to justice. After his murder, interest in demolishing illegal constructed building drastically dropped.
[130] CESCR, General Comment No. 4, Paragraph 8 (b).
[131] CESCR, General Comment No. 4, Paragraph 8 (d).
[132] Report of the Secretary-General on the United Nations Interim Government in Kosovo (January 25, 2006), UN Document S/2006/45, page 17: “Over 170 complaints have been received about the quality of residential reconstruction; 38 оf 42 houses inspected by UNMIK and KFOR engineers are not habitable.”
[133] Internally-internally displaced persons are persons who were forced to leave their homes in 1999 and 2004, but remained as displaced persons within safe zones in Kosovo.
[134] CESCR, General Comment No. 4, Paragraph 8 (e).
[135] Article 20 Maastricht Guidelines.
[136] CESCR, General Comment No. 4, Paragraph 9
[137] Cf. EAR, „Situation Assessment on Communities and Return in Kosovo“ (February 2006), p. 4.
[138] The figure is unreliable because of the methodology used by Pristina office of UNHCR. Namely, field operatives register as permanent repatriates persons who stay in their place of return at least six months, while in 2007 that limit was two months. This was a subject of stern criticism by the Commissariat for Refugees of the Republic of Serbia and former Coordination Centre for Kosovo, which proposed that the threshold for determining permanence of return be twofold – temporal (at least and a year) and fundamental (only in case of return of the whole family and not only one person). Realistically, the vast majority of those registered “repatriates” was coming back to finish various administrative and family affairs, such as оставински поступак, realisation of right to UNMIK pension or sale of immovable property. According to estimates of the Ministry for Kosovo of the Republic of Serbia, done based on number of school children and payment of social welfare, the number of actual repatriates is somewhere between 3.5 and 5 per cent.
[139] Memorandum on Understanding was signed by Lufti Haziri, minister for local self-government of Provisional Institutions, and Martin Loftus, head of UNHCR mission in Pristina. UNMIK had no comment.
[140] 55 Serbs, 52 Ashkali, 17 Gorani, 15 Roma and 4 Bosniaks. Data from Department for Return and Humanitarian Aid in the Ministry for Kosovo of the Republic of Serbia.
[141] Adopted by the Security Council on June 10, 1999.
[142] Item 9.3 of Resolution 1244 stipulates that the responsibility of international security presence is: “Establishing a secure environment in which refugees and displaced persons can return home in safety, the international civil presence can operate”; Item 11.11 stipulates main responsibilities of civil presence: “Assuring the safe and unimpeded return of all refugees and displaced persons to their homes in Kosovo.”
[143] See Table in Annex 4.
[144] Return of displaced persons, due to its significance and need for international protection and engagement, remained one of the reserved authorities of SRSG.
[145] We remind that Article 11 of the Pact stipulates the right to safe, peaceful and dignified life in any place, which was denied by restricting the return solely to the place of origin.
[146] ЕАР, „Процена ситуације у погледу заједница и повратка на Косову“ (February 2006), page 40.
[147] Ibid,, page 7.
[148] Protocol on Sustainable Return was signed by representatives of UNMIK, Provisional Institutions of Self-Government and Serbian Government on June 6, 2006.
[149] Protocol established four basic preconditions for return: (1) security and freedom of movement, (2) access to public services, (3) access to shelter, and (4) economic viability. UNMIK and Provisional Institutions of Self-Government proclaimed the first two conditions met, despite continued security incidents and ethnically motivated attacks; the whole concept stuck with стамбеног збрињавања because that included return of private property, which turned out as insurmountable obstacle. In more detail in part about property rights.
[150] Revised Manual for Sustainable Return was adopted in June 200 and revised very quickly. In 2008, due to many objections from associations of displaced persons, the work on new revisions and amendments began, which were still not finalised or adopted. In practice, some kind of mixture of basic and revised text, as well as non-adopted changes, are used.
[151] See schematics in Annex 1.
[152] EAR, „Situation Assessment on Communities and Return in Kosovo “(February 2006), p. 31.
[153] The return was led by the Work Group for Direct Dialogue, supported by regional UNHCR office in Vienna. It met only twice. The executive hand of the Work Group was supposed to be the Technical Subgroup, which, due to frequent and consistent obstruction by the Pristina delegation, met only once or twice a year. There were no visible efforts from the Pristina delegation, or from Vienna office of UNHCR for that matter, to overcome these obstructions.
[154] A representative of the American Refugee Council (ARC) indicated to another complication experienced in the process of return, saying that, in three separate occasions, returns almost became “conditional returns” because the receiving community and the municipal structures used to exercise veto on who will return and who will not. EAR, „Situation Assessment on Communities and Return in Kosovo“ (February 2006), p. 21
[155] For example, construction of waterworks, road network, kindergartens or houses for local Albanian population.
[156] EU/UNDP Joint Return and Reintegration Project in Kosovo (2008-2010), page 11.
[157] This is in accordance with Article 25 of the Universal Declaration on Human Rights and Article 12 of the International Pact on Economic, Social and Cultural Rights, which are in direct implementation in Kosovo, in accordance with Article 3.3 of the Constitutional Framework.
[158] UNMIK Regulation No. 2001/9, articles 4.5 and 5
[159] UNMIK Regulation No. 2001/9, Annex 6, paragraph (i), Law No. 2004/4, articles 16, 17
[160] UNMIK Regulation No. 2001/9, articles 4.6 and 8.1
[161] Article 12 of the Kosovo Law on Health No. 2004/31 stipulates that inclusiveness and non-discrimination mean: equal health care for all citizens by ensuring the standards during fulfilling the needs at all levels of health care as well as ensuring health care without discrimination regardless: gender, nation, race, color, language, religion, political preferences, social status, the property status, the level of physical or mental abilities, family status, or age differences.
[162] This was as well the finding of the ICMPD study on the health care system in Kosovo and Metohija. ICMPD Legal Team: Report on Gaps and Needs Analysis of the Legislative Framework Including Recommendations for Revisions and Complementary Legislation, Belgrade, July 2006. The Report identifies practical obstacles to the return of displaced persons and refugees, with special emphasis on property rights and indirect discrimination in Croatia and Kosovo, p. 37.
[163] Legal foundation of their activity is UN Security Council Resolution 1244 (1999) SBUN and Joint Document: Agreement on Cooperation of Yugoslavia and UNMIK, signed by Nebojsa Covic, at the time President of the Coordination Centre for Kosovo and Hans Haekkerup, the then special Representatives of the UN Secretary-General, in November 2001.
[164] Reasons for confiscation of those packages are of various administrative nature, although the distribution is carried out by the authorised distributer, Velefarm.
[165] General Comment No. 14 of the UN Committee for economic, social and cultural rights: the element of availability таксативно lists basic medicine, as defined by Action program for Basic Medicine of the World Health Organisation.
[166] Ibid. An element of quality in point (d) enumerates the basic medicaments, as defined in Action Program for basic medicaments of World Health Organization.
[167] Article 36 of the Universal Declaration of Human Rights, Article 2 of the Protocol 1 of the European Convention for Protection of Human Rights and Fundamental Freedoms, Article 13 of the International Pact on Economic, Social and Cultural Rights, UNMIK Regulation 2001/9.
[168], Article 4.4 of the UNMIK Regulation 2001/9.
[169] Ibid, articles 4.5 and 5.
[170] Ibid, Annex 4.
[171] Ibid, Articles 4.6 and 8.1.
[172] Gorani are of Slav origin and Muslim religion, a separate ethnic community which speaks Serbian. They live in southwest of Kosovo, in geographic “pocket”, isolated and surrounded by Albanian communities, which makes their position difficult. Additional problem is that Turkish battalion of KFOR is stationed there. Turks from the battalion also pressure them to accept Albanian language and Albanian school plan and program.
[173] By the decision of the Government of Republic of Srpska (Official Gazette No. 60/01) in late 2001, University in Pristina moves to Kosovska Mitrovica, which is determined as temporary headquarters of the university. Gradually and thoroughly all the faculties which were a part of the University are returning to the territory of Kosovo.
[174] At all faculties there is work on reform of educational plans and programs, which are being synchronised with the Bologna education process. Especially is being insisted upon synchronisation of curriculum for study programs with the same or kindred faculties in Serbia according to the principle that curriculums for study programs of kindred faculties cannot differ from the same for more than 10 per cent. It is realistically expected that by 2010 the University in Pristina (K. Mitrovica) will fully take over the Bologna process.
[175] Partial exception from this claims is the program in Bosniak language at the Business School in Pec and at the Faculty of Pedagogy in the University of Prizren.
[176] Ibid. See also OSCE Mission in Kosovo: Parallel structures in Kosovo, Pristina, March 2003, page 32.
[177] Advisory Committee on the Framework Convention for Protection of National Minorities, Opinion on Implementation of Framework Convention for Protection of National Minorities in Kosovo, Strasbourg, November 2005, page 27.
[178] UNMIK Regulation 2003/14 (12 May 2003) on the promulgation of a law adopted by the Assembly of Kosovo on higher education in Kosovo.
[179] In accordance with the procedure for adoption of legislation as stipulated in Article 9 of Constitutional Framework.
[180] In accordance with Article 9.1.39 of the UNMIK Regulation 2001/9.
[181] Ibid, articles 9.1.40 and 91.41.
[182] James O’Brien, Working Towards a Unified System, Focus Kosovo, Pristina, August 2002.
[183] Chapter 8 of the UNMIK Regulation No. 2001/9.
[184] According to the available information, University in Kosovska Mitrovica was accredited for the last time in early 2007. European Commission, Progress Report (under 1244) 2007, Brussels, 2007, page 21.
[185] Article 2.1, Paragraph (b) of UNMIK Regulation No. 2003/14.
[186] Ibid, Article 4.1, Paragraph (h).
[187] Ibid, Article 3.1 and Article 2.9.4, Paragraph (c). The only provision which stipulates, once again indirectly, the right of Serb communities to higher education in their mother tongue, is contained in the article which regulates authority of Ministry of Education: “In exercising powers and duties under this Law, the Ministry shall respect and promote the rights of Communities and their members established in Chapter 4 of the Constitutional Framework for Provisional Self-Government. (Article 4.2).“
[188] In the period between June and October, 1999, 76 monasteries and churches were destroyed or damaged. See for example http://www.rastko.org.yu/kosovo/crucified/default.htm. On March 17 and 18, 2004, alone, 36 monasteries, churches and other cultural and religious objects were destroyed or damaged. UNHCR Kosovo, Supplement on Kosovo communities of Roma, Ashkali, Egyptians, Serbs, Bosniaks, Gorani and Albanians in minority situation (June 2004), page 32.
[189] By the end of 2005.
[190] Available at official internet presentation of KOTAS at http://www.kotas-ks.org/publications.html.
[191] KOTAS’s Tourist Package 03 KO.
[192] KOTAS’s Complete Tourist Package of Kosovo, page 12.
[193] Official internet presentation of the tourist officer of Kosovo http://www.visitkosova.org.
[194] For details, see, for example http://www.kosovo.net/news/archive/2006/December_02/1.html, accessed on October 15, 2008. Distortion of cultural and historical facts was also present at the official internet presentation of the tourist offer of Kosovo, but such content was removed after strong pressure from the public.
[195] See, for example, http://www.visitkosova.org/english/photogallery.htm, accessed on October 15, 2008.
[196] For example, Kamoglava instead of Kamena Glava, or Gllogoc (Albanian) instead of Glogovac (Serbian).
[197] UNMIK Regulation 2000/45 (11. август 2000.) оn municipal self-government in Kosovo.
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