Reforming Property Law in Kosovo: A Clash of Legal Orders

摘要

The legal framework regulating property in Kosovo has been defined as 'A jumble of laws, regulations, administrative instructions, court practices and directives combine to create a complicated and seemingly impenetrable system for determining contests over immovable property ownership in Kosovo. At the highest level, international human rights standards affect property rights.' 1 As in other areas of legislation, laws addressing property issues derive from different periods in Kosovo's history, that is to say the Yugoslav time, the so-called discriminatory period of the 1990s, UNMIK's rule of the first decade of the 2000s and, finally, independent Kosovo. Laws are scattered through several legal texts, regulate different aspects of property rights, and often refer to institutions that no longer exist. This paper focuses on the specific issues affecting property law in Kosovo, a sector where international organizations and bilateral cooperation are massively intervening. While assessing legal acts in force and data collected on the field, the author argues how, for an effective reformation of the sector, a clear and coordinated strategy will have to be adopted by the two main donors which, in the next few years, will be launching several technical assistance contracts. Comparing European best practices with the proposed intervention suggested by the European Union and USAID will also give the chance to illustrate how a strict adherence to ECHR standards in the field of property, as the Constitution of Kosovo requires, will bring to light problems already seen in other European countries, that is to say a clash between domestic civil legislation on property, on the one hand, and the case-law of the European Court of Human Rights on Article 1 Protocol 1, on the other. The author will also notice that the tendency to adopt a too political approach, typical of international organizations and donors, in an area characterized by legal principles of a more technical nature, will be cause for additional confusion.