International Conference: “National Human Rights Institutions and the Promotion and Protection of Human Rights in Macedonia and the Western Balkans”, Skopje, 3 - 4 October 2012

Presenter: Milica V. Matijević, Institute of Comparative Law, Belgrade

The research was party realized within the EU-funded Project “Further support to refugees and IDPs in Serbia”, implemented by Diadikasia Business Consultants S.A. in consortium with Hilfsverk Austria International, ICMPD and Group 484

(http://www.pravnapomoc.org)

Basic facts and figures:

After Serbian military withdrawal from Kosovo in June 1999 and during March 2004 Riots about 245.000 persons were forcefully displaced from Kosovo (Internal Displacement Monitoring Centre (IDMC))

Thirteen years after, an estimated 210,000 pre-conflict inhabitants of Kosovo live in displacement in Serbia proper and there are approximately 20,100 internally internally displaced persons (IIDPs) in Kosovo (UNHCR, 2012 UNHCR Country Operations Profile – Serbia (and Kosovo: SC Res. 1244))

97.000 IDPs are in need of assistance according to survey criteria based on housing status and income

74.3% of the IDP households in need survive on less than 200 EUR per month for an average household size of 4.42

An average IDP household moved three more times after the displacement from Kosovo

Most of the IDP households with insufficient monthly income own an apartment or a house in Kosovo (49%) yet, more than half of these persons are subtenants (48.9%) or live with relatives or friends (21.6%)

widespread instances of illegal occupations of immovable property or other violations of their property rights

hindered access to courts

limited access to public services

serious obstacles to the access to housing, employment and other socio-economic rights

human rights violations are often consequence of unequal treatment of IDPs

multiple discrimination of IDPs on the ground of their status, ethnic origin, language and/or religion

Many of human rights violations are of systemic character and arise as a result of indirect discrimination of IDPs where an apparently neutral law or institutional practice put IDPs at a particular disadvantage compared with the other persons in Kosovo

Article 1

“The purpose of this Law is prevention and combating discrimination, promotion of effective equality and putting into effect the principle of equal treatment of the citizens of Kosovo under the rule of Law (italic added).”

“[…] Hereby promulgates effective as of the date of signature the Anti-Discrimination Law adopted by the Assembly of Kosovo on 30 July 2004 (Law No. 2004/3), attached to the present Regulation, provided that:

(a) The words “citizens of Kosovo” in Articles 1 and 2(c) shall be replaced by “persons in Kosovo”; […]

These amendments shall be reflected in the final official text of the Law.”

directly applicable in Kosovo pursuant to Article 22 of the post-UDI Constitution of Kosovo

Universal Declaration of Human Rights (UDHR), International Covenant on Civil and Political Rights (ICCPR), Convention for the Prohibition of All Forms of Discrimination (CERD), European Convention on Human Rights (ECHR), etc.

United Nations Guiding Principles on Internal Displacement:

Article 1(1): ” [IDPs] shall not be discriminated against in the enjoyment of any rights and freedoms on the ground that they are internally displaced.”

Article 29(1): “Internally displaced persons who have returned to their homes or places of habitual residence or who have resettled in another part of the country shall not be discriminated against as a result of their having been displaced.”

Article 156 of the post-UDI Constitution of Kosovo:

“The Republic of Kosovo shall promote and facilitate the safe and dignified return of refugees and internally displaced persons and assist them in recovering their property and possession.”

Article 3a of the Law on the Protection and

Promotion of the Rights of Communities and their Members No. 03/L-047:

“All refugees from Kosovo and internally displaced persons shall have the right to return and claim their property and personal possessions in accordance with national and international laws.[…]”

1. Article 15.2 of the Law on Ombudsperson No. 03/L – 195 of 27 August 2010:

“The competences of Ombudsperson extend to the entire territory of the Republic of  Kosovo. In exercising his/her functions related to cases that arise within the territory of the Republic of Kosovo, the Ombudsperson can provide good services to the citizens of the Republic of Kosovo who temporarily live outside territory of the Republic of Kosovo (italic added).”

2. Law on Ombudsperson does not fully authorise the civil society organisations to bring a claim before the Ombudsperson (Article 17, Article 15.4 of the the Law on Ombudsperson)

3. the Ombudsperson’s power to initiate ex officio investigations of the human rights violations, including unequal treatment of individuals, is conditioned upon the prior consent of the victim (Article 15.4 of the Law on Ombudsperson)

remoteness of IDP victims from the Ombudsperson’s offices; expenses incurred for the travels to Kosovo in order to participate in the proceedings before the Ombudsperson (given the non-existence of the functional postal service between Kosovo and Serbia proper and the overall impoverishment of IDP population); frequent changes of address featuring life of IDPs in the place of displacement; the general lack of awareness among IDPs about the mechanisms for the protection of their rights in Kosovo, etc.

The legal and institutional equality guarantees existing in Kosovo do not provide for a sufficient level of protection of IDPs against discrimination.

1. The wording “citizens” contained in the Anti-Discrimination Law and the Law on Ombudsperson should be replaced with the wording “natural or legal persons” and other appropriate terms, which would include IDPs and other groups of individuals who do not hold post-UDI citizenship, yet need protection against unequal treatment in Kosovo.

2. The Law on Ombudsperson should include the explicit reference to the Ombudsperson’s powers and responsibilities for the protection against discrimination of particularly vulnerable groups, including internally displaced persons.

3. The Law on Ombudsperson should be amended in order to enable that third parties, such as NGOs and other civil society organisations, be permitted to bring cases before the Ombudsperson on the victim’s behalf.

4. In order to strengthen the Ombudsperson’s power to address discrimination against IDPs more consistently, he/she should be allowed to initiate ex officio investigation without the prior consent of the victim of discrimination.

5. The Ombudsperson’s mandate should be further developed through empowering him/her to intervene in matters before courts which are of strategic importance for combating discrimination in Kosovo, especially discrimination of IDPs and other vulnerable groups.