A Decade or Two in Courts, Still Without Property Rights

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Houses, flats, land parcels have been usurped in Kosovo since 1999. To date, some owners have failed to come into possession of their property.  CBS talked with property owners who have been fighting for their right for two decades and with the representatives of institutions.

“By the old well” – was a cult place for citizens of Mitrovica in the southern part of the city at the time when the city was not divided.  For Renata Milosavljević, this is where her family home used to be. The house was set on fire in 1999. Another house is on the same plot now, owned by the Ć. family (last name known to the editorial staff).

“All courts have ruled out in our favor. It was decided that their house be demolished within 30 days, but nothing happened,” says Renata Milosavljević in an interview with CBS. She now lives in Mali Zvornik. The rest of the family is in the northern part of Mitrovica.

A magnificent hotel is being built on one of the plots near the Peć-Dečani highway. The owners of the land are the Petrović family.

“We have spent fourteen years in courts,” says Ivan Petrović in an interview for CBS, who now lives in Kruševac. They are trying to prove ownership of their own land.

Naser Avdiu owns an apartment in the northern part of Mitrovica. He found out in 2006 who exactly was in his property and started getting the rent for his apartment 8 years later. He is still not in his apartment.

All three stories began in 1999.

Renata Milosavljević and her family left their home in the southern part of Mitrovica, former Bora Vukmirović Street, at the beginning of the bombing.

“We managed to go a couple of times to get the most needed things, clothes. We took absolutely nothing else out of our house,“ says Renata.

On the day when KFOR arrived in Kosovo, the house was set on fire. The next day, accompanied by French gendarmes, she managed to visit the burnt down remnants of the house.

“There was nothing left to see except soot, everything was completely burned and the well, which was the embodiment of Mitrovica, hundreds of years old, was cluttered. I was revolted by the burned house and the cluttered well,” she adds.

Naser Avdiu left his apartment in the northern part of Mitrovica, near Polet, a month after the NATO bombing.

According to him, he was beaten up by “paramilitaries” and at one point they threatened him with murder. Still, he was eventually released.

“Just one bag and nothing more, that’s what they told us,” Avdiu says, explaining that one bag was all that his family took out of the apartment.

The Petrović family left Peć in 1999, too.

The return of the first Serbs to places near Peć/Peja began in early 2000, explains Ivan Petrović. During one of the “go-and-see visits”, Ivan’s father tried to get a new possession certificate, apart from the old one. Everything was alright for all the property except for a land parcel next to the motorway:

“He found out that he was not the owner of the plot near the Peć-Dečani motorway. He was shocked. And that was when the truth came to light. The first link in the whole story was, imagine, in Belgrade.”

Ivan Petrović

“Allegedly, in Belgrade, in the First Basic Court my father authorized a person from Savski venac, who does not actually exist, to dispose of his property. Afterwards, that non-existent person, with all that forged documentation, went to Berane and transferred the authorization to a third party. The third party-person goes to Peć and sells the property. The ownership is then transferred to a new person. What happened next was that after a month, that person divided our land parcel into two parts and transferred the ownership to his relatives,“ explains Ivan.

Renata Milosavljević’s family found out in a similar manner that the family property, i.e. the land parcel on which the family house was located, was no longer owned by their grandmother.

“A colleague’s father went to the southern municipality to apply for a possession certificate on our behalf. The possession certificate was on the name of A.Ć. (full name known to editorial staff). So our land parcel was in fact owned by that person, not us,“ she explains.

Until 2006, Naser Avdiu had visited his apartment once.

Naser Avdiu

“I was accompanied by the French KFOR. An „Alfa“ stove was the only part of furniture that remained in the apartment. In 2006, I found out who was in my apartment,” he says.

Now he knows who is in his apartment, but he did not want to expel the family, because they agreed to pay the rent. The rental began in 2014.

The cases of Petrović and Milosavljević families became lengthy court proceedings. Our interviewees believe that they have evidence of fraudulent attempts to seize their land.

In the Petrović’s case, a Belgrade court confirmed that it did not have a recorded case regarding the authorization of the person from Savski venac. It was also confirmed that this person actually did not exist.

“We went to court in Belgrade and they confirmed this information,” says Ivan Petrović, adding that the authorization was still recorded in Berane.

Renata Milosavljević

Renata Milosavljević states that the first offer for the sale of their property came from the former President of the Basic Court in Mitrovica (name known to the editorial staff), offering 7,000 euros.

As she did not accept this offer, the court process continued. At the hearing-confrontation in court, to which she was summoned together with a member of the Ć. family, all witnesses testified in favor of her family, she explained. 

“My witnesses – former neighbors, testified that the property was mine, or that my mother Ljiljana Milosavljević is the only successor, because she was the only legal heir of the land parcel,” Renata explains further.

However, this was not the end.

Despite this decision – that they are the owners of their own land, one of the officials in the municipality of South Mitrovica refused to transfer the property to Renata’s family. On the other hand, the decision to demolish the building on their land pacel within 30 days was not implemented, neither the one that the usurpers have no right of appeal.

“We have received confirmation from all possible courts that this is our property and that they are not entitled to appeal. And no compensation, no rent, nothing,“ our interviewee states.

Moreover, she says that, after the verdicts in favor of her family, she was threatened, via SMS, and then repeatedly by unknown persons. She reported it to the police. She believes the threats came because she did not give up on her property.

“We wanted to sell the property. I asked them – would you, in order not to have the house demolished, buy the property for a reasonable amount of money? One of the brothers Ć. told me – Slobodan (Milošević) died,” Milosavljević testifies, adding that it was especially devastating when the family who usurped the property mortgaged the land parcel and took out a loan.

These are the reasons why she believes that the usurpers of her parcel are in some way protected by institutions.

Asked if they ever received an explanation as to why the building on their parcel was not demolished, Renata replies: “No, never!”

Neither the usurpers in the Petrović case have been puniched so far.

“My father, after collecting all the necessary documentation filed a lawsuit with the Basic Court in Peć and a report to the UNMIK police. However, nothing has happened regarding that report until now. In the meantime, we have extended the accusation to the person who is building a hotel,” says Ivan Petrović.

He believes that they were experiencing major obstruction in their case, since it was constantly moved from the jurisdiction of one court to another. The has lasted 14 years and is still ongoing. The Petrović family is now awaiting a new hearing.

No precise data regarding the number of cases of usurped property

The Kosovo Property Comparison and Verification Agency (KAUVI) deals with cases of usurped property. As explained by this agency, it has the mandate to receive, compare and decide on differences and divergences between the original cadastral documents before June 1999 and current cadastral documentation in Kosovo.

Its mandate is to deal mainly with private property, private commercial property and private property of religious communities. It is also mandated to resolve property claims and claims for the right to usage (with the right of appeal to the Supreme Court of Kosovo) in relation to private real estate, including agricultural and commercial property.

KAUVI has inherited a mandate from the Kosovo Property Agency (KPA), which has inherited a mandate from the Housing and Property Directorate (HPD). The mandate inherited from the KPA includes executive competencies in the implementation of decisions of the KPA and, from this aspect, except deciding, the KAUVI also has the executive authority in the implementation of decisions of the KPA and the Property and Housing Directorate, whose closure coincided with the establishment of the KPA, it was explained by KAUVI in their response to CBS.

CBS requested from this agency, among other things, information on the number of usurped property in Kosovo according to their data.

However, the agency provided us with “statistics regarding the KPA mandate”:

“The total number of requests received is 42,749, decisions rendered 41,849, appeals (lawsuits) to the Supreme Court of Kosovo 1310, reviewed 1124, pending 186.”

It was not specified, however, whether the number of over 42,000 claims can also be interpreted as the number of usurped assets.

The nationality of persons who submitted the requests is mostly Serbian, in almost 97% of the cases.

“Albanians – 1.35%; Serbs – 96.84%, Turks – 0.07%; Roma – 0.76%; Bosniaks – 0.22%; Askalia – 0.04%; Gorani – 0.19%; Egyptians – 0.01%; have not declared themselves – 0.25% ”- was the answer provided by KAUVI.

The total number of evictions conducted was 8,167, 2,271 canceled, pending 83, while the number of criminal complaints sent to prosecutors’ offices was 449, they added.

As the agency is also responsible for property management, we asked for statistics regarding that matter as well.

“In total, there were 12,454 properties under the management of the agency, although in 65 cases the property owner filed a request for the administration to be terminated. When a party places assets under the management of the agency, it has the opportunity to enter into a voluntary property lease program. A total of 1,020 lease payments were made, of which 284 were agricultural property, 7 commercial and 729 residential property. A total of 4,112 were covered by the voluntary lease program and 8,342 properties were identified as unsuitable for the program because of their location, poor conditions and the lack of consent of the property right holder to include the property under the voluntary lease program,“ they specified.

When asked what they see as the main obstacle to the work of this agency, they stated that it was a pending amendment to the law awaiting to be adopted by the Assembly of Kosovo in order for the Agency to be able to continue its work.

“KAUVI manages the property and implements a lease program no later than eighteen (18) months from the effective date of the KAUVI Law, respectively, until May 18, 2018. The Kosovo government, meanwhile, has adopted a concept-document for amendments to the agency law. In order to find a way out of this situation due to a legal vacuum, the agency continued to adhere to internal rules and procedures for inspecting assets after May 18, 2018, to prevent misuse of these assets. The Assembly’s vote for this amendment is still pending,” they said.

In 90 percent of cases, the same persons are re-usurpers

However, delays in the Assembly of Kosovo are not the only ones. The 2018 Ombudsman’s report in Kosovo emphasizes that delays in court proceedings occur, while the most cases are regarding property disputes.

“The fact that a positive step has been made in addressing this problem with respect to the property rights of the persons whose property has been usurped cannot be denied, but there are still many significant problems regarding the peaceful enjoyment and accessibility of private real estate faced by a large number of citizens. Continuous illegal usurpation of minorities’ private property in Kosovo, as well as private property of members of the Albanian community in northern Kosovo, remains a concern,“ the report reads.

The Ombudsman, as it was stated, has received and registered a number of complaints regarding the usurpation and re-usurpation of immovable property, which are pending review of judicial authorities, either as criminal cases of usurpation of immovable property or as civil cases, but which have not yet been resolved within a reasonable timeframe, which is stipulated by Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).

Aleksandra Dimitrijević from the Regional Ombudsman’s Office in Gračanica, a lawyer with years of experience in the matter of usurped property, says that continued illegal usurpation of private property is still a concern.

This issue requires a decisive response from the authorities, which should guarantee full protection of property rights as fundamental human rights of all communities in Kosovo, she explains.

“However, the decisive response is missing, not because the laws are bad or because of the lack of capacity to deal with the problem, but because of the inconsistency of law enforcement, as well as the mild penalties given to usurpers in criminal proceedings,” Dimitrijević told in an interview for CBS.

From her experience so far, Dimitrijević believes that it is necessary for judicial authorities to react more effectively, not only to usurpation, but also to re-usurpation, since in 90% of cases the re-usurpers are the same persons:

“The total number of repossessed property initiated before the competent prosecutor offices has reached 449 – data from KAUVI. Out of this number, 327 cases have been decided before the primary / municipal courts and 122 cases are pending in the prosecutor offices or basic courts. They added, however, that the number of consecutive usurpations has decreased over the years, so that, for example, in 2015 there were 157, in 2016 – 212 cases, while in 2017, there were 133 and 17 in 2018. KAUVI states that progress has been made “thanks to the Agency’s involvement and close cooperation with relevant institutions.”

“They were only fined financially, and in some cases that we had the court did not order the eviction of these persons from the usurped property, but referred the injured party to the lawsuit where they would file an appeal for removal of persons and belongings from their property. This is a long process and can last for an average of 6 years in the first instance, 4-5 in the second instance. Thereafter the process is also delayed, since the procedure has now been taken over by private enforcement agents who are reluctant to work on such cases. Enforcement by the courts used to be delayed for several years due to the fact that in that time, before private enforcement agents began working on enforcement cases, there had been a small number of judges, since they had been working on a large number of cases.”

The problem is of a systemic nature, Dimitrijević says, noting that competent courts must treat such cases with priority and special attention:

“An absolute human right is a right to own property and as such is inalienable and enjoys special protection from the state itself. Courts should identify and address these cases with priority, second instance courts must prioritize them, whether it is about property disturbance, usurpation of property, removal of persons and belongings, real estate repossession, etc. These are all lawsuits that are differently addressed in the courts, but in 90% of cases they refer to the previous usurpation of property, which property owners cannot use even 20 years after the end of the conflict. From the point of view of human rights and the rule of law in general, this is disappointing.”

Asked what property owners can do when it comes to their ownership, or whether they can contact the Ombudsman’s office, Dimitrijević explains that citizens must firstly use all the legal means at their disposal.

“They can always seek legal advice from the Ombudsman if they do not know who to turn to first in order to resolve the issue. They can also contact us if they have objections to the work of the prosecution in the sense that a criminal complaint has been dismissed, that it has been too long in the investigation process, etc,” Dimitrijević added.

She cited an example of a case in Prizren.

Following a letter of recommendation from the Ombudsman, the Basic Prosecutor’s Office took specific actions outlined in the recommendation and submitted an indictment to the Basic Court. Previously, the application had been pending in the Prosecution for two years.

“When it comes to court proceedings, citizens can submit an appeal on their length, if the case is in court and if it had not been acted upon for a year after the submission, as well as in the case of refusal of private enforcement agents to work on enforcement of cases that include eviction of the usurper from usurped real estate, etc.”, says Dimitrijević.

However, the Ombudsman’s decisions are not executive.
“The Ombusman’s Office does not have an enforcement mechanism for the implementation of the recommendations, it depends on the institutions themselves whether they want and to what extent to implement not only our recommendations, but the law itself, because our recommendations are based on the implementation of the laws in force in Kosovo. Thus, according to the data for 2018, 38% of recommendations were implemented, 11% were not implemented, while 51% of recommendations are still pending.”

Ways of property usurpation – inspiration for future PhD theses

According to reports from international and local organizations and institutions in Kosovo, fraudulent transactions, counterfeit sales contracts and power of attorney – are common ways of usurping property in Kosovo.

“Since 1999, this has been one of the most pressing legal issues in Kosovo. There were many different ways to gain property ownership. People were scared to travel to Kosovo. On the other hand, until 2002-2003 it was allowed that property sale licenses can be certified in Serbian courts. Each city had an organized group that did this and worked out counterfeit power of attorney and sold property. Over time, this was revealed, people began to prosecute such cases,“ says lawyer Dejan A. Vasić.

As a lawyer, he participates in a multi-year free legal aid project implemented by a Consortium led by the European Consulting Group. The project is funded by the European Union with the support of the Government of Serbia’s Office for Kosovo and Metohija. He was also engaged with property issues before participating in the project.

Lawsuits, when it comes to property rights, are generally lengthy, says Vasić, while explaining some of the reasons:

“Let’s say we have a case of forged power of attorney and it needs to be verified that it was indeed certified in the Kruševac court. Therefore, the Kosovo court in which the proceedings are conducted must appeal to the Serbian institutions.”

He further explains that such a verification requires time, as it goes through a lengthy procedure of informing and sending requests to several Serbian ministries and, in the end, the response is sent in the same way.

“This authorization process can last really long. On the other hand, it has happened that due to the workload, courts cannot invite both parties to the trial. There are some of the cases that last for 20 years,” Vasić explains for CBS.

Statistical Report of the Basic Courts in Kosovo for the First Six Months of 2019:
Number of pending cases at the beginning of the Reporting Period – 211,090
Number of items received at work during RP – 44,028
Number of cases during RP – 255,118
Number of resolved cases during RP – 66,753
Number of unresolved cases at the end of RP – 188,260
Items transferred to the next RP – 105

The number of judges in primary courts in Kosovo is, according to the same report, “218.5”, with the exception that misdemeanor judges are not covered.

Data for the Basic Court in North Mitrovica and its branches are not included. The category name was taken from the report.

These are the biggest obstacles in such processes, says Vasić.

He also estimates that due to the free legal aid system and the work of experienced lawyers the issue of usurpation has been institutionalized and addressed in a more systematic way.

When asked about usurpation methods that he encountered throughout his long practice, Vasić replied that within property usurpation cases in Kosovo there are “future PhD theses for lawyers on real law”.

“Because of the usage of various methods in order to alienate property and all of the ideas usurpers had, the way they left out rightful heirs through the forged inheritance process and passed on property to each other. It is a whole treasury of ways in which the Law on Inheritance can be abused. I think that this issue should be further expanded in the legal sense, irrespective of nationality, because it is unbelievable what was being done,“ Vasić explains further.

As an example of usurpation, he cites a case of demolition of the Marušić family house in Klina.

“We are awaiting a first instance verdict. A KLA veterans building was built on their land parcel. We sought compensation for the demolished house. The procedure was not conducted by the Municipality properly, as there was no decision on demolition. The Municipality made a decision that we have never received, nor seen. The decision must be brought and the party has the right to appeal. The family was in Klina at the time and the decision could have been delivered to them, if not, the Municipality had to post it on the bulletin board,” Vasić said.

The diversity of methods of usurpation is not described only through cases mentioned above. For example, in one of the cases that CBS had an insight into, the usurpation of a private parcel was done by the Municipality of Pristina. The case was in one part handled by the Special Chamber of the Supreme Court of Kosovo. This Chamber is otherwise concerned with social property.

However, there is an enormous number of pending cases in the Special Chamber of the Supreme Court with the largest number being old cases.

As the biggest obstacle in the work of the Special Chamber, the Supreme Court states the “insufficient number of judges and administrative staff”.

They add that the SCSC currently has 11 judges for two judicial levels and they expect nine more judges to be appointed this year.

As a result, a case like the one mentioned afore, though it has been brought to court, is pending.

Waiting on justice

“I said that I would not sell the property until the court process was completed, because they are sure that they will lose it since the first link is a forge,” says Ivan Petrović.

The court battle – after both his father and uncle passed away as a result of serious illnesses – is lead by himself.

“Even today, their palace is on my land, all the property is usurped,” Renata Milosavljević recalls.

Waiting in courtrooms for better security, waiting on the will of the usurper, waiting for a more resolute response from the institutions – even after twenty years our interlocutors have failed to have their absolute and inalienable human right fulfilled.

POSTAVI ODGOVOR

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