Towards the Agreement
Working Group of the National Convention on the European Union for Negotiating Chapter 35 gathers 23 organisations and one individual who, through their joint work, initiate a social debate on topics important not only for this chapter but also for the Brussels Dialogue and normalisation of relations between Belgrade and Priština. Our Working Group is the only network of civil society organizations in Serbia that systematically and in an organised manner deals with these issues that are important not only for European integration of Serbia, but also for reconciliation between Albanian and Serbian society, and thus for establishing lasting peace in this region.
In the previous year, the Working Group organised meetings with representatives of the highest state bodies, including a meeting with the President of the Republic of Serbia, as well as with representatives of international organisations and the media. As part of our work, we organised expert and thematic debates on various topics relevant to the Brussels Dialogue and reconciliation, including a discussion on the work of the Kosovo Specialist Chambers & Specialist Prosecutor’s Office for crimes against humanity, war crimes and other crimes committed during and after the war in Kosovo, as well as a discussion on the work of the Commission for Missing Persons of the Government of the Republic of Serbia.
In this publication, symbolically titled “Towards the Agreement”, we are publishing four short analyses that contribute to an expert discussion on topics of importance for the negotiation process. The topics were selected through a consultative decision-making process within the Working Group, and each analysis was done through a partnership of two organisations, members of the Working Group. All four analyses are relevant to the topics negotiated in Brussels, which makes this document more useful and relevant at this stage of the dialogue. English translation of the publication will make it available to interested audiences in Brussels and Pristina, as well as other international centres.
In the first analysis, the Belgrade Centre for Security Policy (BCBP) and the Centre for Social Dialogue and Regional Initiatives (CDDRI) give a historical overview of the views of Serbian citizens about the Brussels Dialogue, the normalisation of relations with Priština and the reconciliation process. This study analyses over 30 public opinion polls that covered this topic in the period from the signing of the Brussels Agreement in 2013 until 2020, and provides a historical overview of trends in citizens’ views. This analysis also provides a methodological recommendation for future public opinion polls on Kosovo, the Belgrade-Priština dialogue, or relations between Serbs and Albanians, in order to better record the dynamics of changing citizens’ views over time.
The second analysis deals with the sensitive topic of finding missing persons from the war in Kosovo, primarily the efficiency of the mechanisms of the institutions of Serbia and Kosovo in the period between 2016 and 2020. This analysis is authored by researchers from the Youth Initiative for Human Rights YIHR Serbia and the New Social Initiative (NSI), in which they dealt with mapping the problem of inconsistencies in data on missing persons, as well as other structural problems in cooperation between Serbian and Kosovo government institutions dealing with these issues. The analysis also provides a set of recommendations for improving the efficiency of cooperation between institutions, but also for a more humane approach to resolving the issue of missing persons.
In the third analysis, researchers from the Centre for Contemporary Politics (CSP) and the Belgrade Fund for Political Excellence (BFPE) analysed the potential for economic cooperation between Serbia and Kosovo, primarily in the context of regional market development in the Western Balkans. This paper presents the framework of regional cooperation and economic integration both in the Western Balkans and between Serbia and Kosovo, gives an overview of trade between the two economies, and finally discusses the topics of economic integration in the region such as “Mini Schengen” and Regional Economic Area (REA).
The fourth analysis deals with property rights, another important issue in the process of normalization of relations. This analysis was prepared by researchers from NGO Aktiv and CisBALK with the goal to clarify the challenges and problems in this area, but also to contribute to the negotiations in Brussels by pointing out the systematic violation of the right to private property.
This publication was made with the financial support of the Embassy of the Kingdom of Norway in Belgrade and the Balkan Trust for Democracy of the German Marshall Fund of the United States, to whom I sincerely thank for their help.
Dragiša Mijačić Coordinator of the Working Group
Publisher National Convention on the European Union Working Group for Chapter 35
Authors Milan Krstić, Centre for Social Dialogue and Regional Initiatives Maja Bjeloš, Belgrade Center for Security Policy Bojan Elek, Belgrade Center for Security Policy
Year 2021
The publication was produced within the project “National Convention on the European Union 2020/2021, Chapter 35: Other Issues – Kosovo” financed by the Embassy of the Kingdom of Norway in Belgrade and the Balkan Trust for Democracy of the German Marshall Fund of the United States. The opinions and views expressed in this publication are those of the authors and do not necessarily reflect the official views of the Embassy of the Kingdom of Norway, Serbia, Balkan Trust for Democracy of the German Marshall Fund of the United States, National Conventions on the European Union or the Institute for Territorial Economic Development.
A brief history of citizens’ views on the dialogue between Belgrade and Priština. What has (not) changed?
Milan Krstić, Centre for Social Dialogue and Regional Initiatives Maja Bjeloš, Belgrade Center for Security Policy Bojan Elek, Belgrade Center for Security Policy
March 2021
A brief history of citizens’ views on the dialogue between Belgrade and Priština. What has (not) changed?
CONTENTS
INTRODUCTION ...... 1
THE VIEWS OF SERBIAN CITIZENS ABOUT THE DIALOGUE BETWEEN BELGRADE AND PRIŠTINA ...... 2 What do we actually know about the dialogue? ...... 4 Internal dialogue – dealing with “the reality” or distancing from it? ...... 5 Constructive ambiguity and consequences ...... 7
VIEWS OF SERBIAN CITIZENS ON THE FINAL SOLUTION OF THE KOSOVO ISSUE ...... 9 We know what we do not want– the recognition of independence ...... 9 Are there concessions for which we would recognize Kosovo? ...... 11 Mysterious variations on the issue of delimitation ...... 13 Undesirable exchange of territories ...... 14 Divided over the division ...... 16 What do we actually want? ...... 18 Conclusion ...... 21
SUGGESTIONS FOR FUTURE RESEARCH ...... 22 Sample and methodology ...... 22 Different dynamics and topics of questionnaires ...... 24
References ...... 29
A brief history of citizens’ views on the dialogue between Belgrade and Priština. What has (not) changed?
ABBREVIATIONS
BCSP Belgrade Center for Security Policy CSDRI Centre for Social Dialogue and Regional Initiatives CEAS Center for Euro-Atlantic Studies CeSID Center for Free Elections and Democracy CRTA Center for Research, Transparency and Accountability EU European Union FES Friedrich Ebert Foundation OSF Open Society Foundation IDN Institute of Social Sciences IEA Institute for European Affairs NSPM New Serbian Political Thought USA United States of America SOC Serbian Orthodox Church SAA Stabilization and Association Agreement Tanjug Serbian National News Agency UN United Nations CSM Community of Serb Majority Municipalities
A brief history of citizens’ views on the dialogue between Belgrade and Priština. What has (not) changed?
INTRODUCTION
At the beginning of March, ten years have passed since the beginning of the dialogue between Belgrade and Priština. Immediately after the signing of the Brussels Agreement in 2013, it seemed that the dialogue unquestionably led to a compromise and the achievement of a binding agreement on the comprehensive normalization of relations between the two sides. Today, it is clear that the final solution is “low-hanging fruit”. There are many reasons for this outcome, but it is indicative that the elites in Belgrade and Priština have often referred to public opinion “tying their hands” and preventing them from making a compromise. The President of Serbia, Aleksandar Vučić, did it openly, emphasizing that the people “did not support the solution he offered” (without specifying the solution), although he advocated a compromise in the interest of the state. On the other hand, the highest officials in Priština justified themselves behind closed doors that the establishment of the Community of Serb Majority Municipalities or the withdrawal of prohibitive customs duties are impossible due to the opposition of the public in Kosovo. Even regardless of whether these claims were completely true or were just an alibi for the reluctance of political elites to make a substantial compromise - public opinion is certainly a factor that has influenced and will influence the course of dialogue between Belgrade and Priština and the possibilities for achieving final solution for the Kosovo issue.
With that in mind, the research team of the Belgrade Center for Security Policy (BCSP) and the Centre for Social Dialogue and Regional Initiatives (CSDRI) analysed more than 30 relevant public opinion polls in Serbia between 2013 and 2020. The first part of the analysis presents the answer to the position of the Serbian public on the dialogue between Belgrade and Priština, and underlines and explains the causes of key trends related to this issue. The second part presents the key findings of the analysis of Serbia’s public support for various modalities for Kosovo’s final status in the past eight years. Finally, faced with the fact that, when processing the findings of existing research, we noticed the need for a different approach in the future, so that research findings are more comparable and it is easier to draw conclusions about trends, the third part of the analysis presents key advice and guidelines for future researchers of public opinion on this topic.
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A brief history of citizens’ views on the dialogue between Belgrade and Priština. What has (not) changed?
THE VIEWS OF SERBIAN CITIZENS ABOUT THE DIALOGUE BETWEEN BELGRADE AND PRIŠTINA
Initiation of a dialogue between the governments of Belgrade and Priština after Kosovo’s declaration of independence is one of the most important political processes for Serbia. Prior to the talks on Kosovo’s status at the highest political level, the chief negotiators of Belgrade and Priština, Borko Stefanovic and Edita Tahiri, discussed the following “standards” at the so-called technical level, between March 2011 and mid-2012: freedom of movement, personal documents, customs, cadastre, mutual recognition of diplomas, integrated border/administrative line management and representation of Kosovo in interstate forums for cooperation in the region of Southeast Europe. The EU-facilitated negotiation process was characterised by ambiguity and conflicting interpretations of the agreements reached in Brussels, by stagnations, frequent changes of government in both political communities, by rising tensions in Serbian and Albanian community, embargoes, assassinations of Serbian politicians in northern Kosovo and other incidents. Despite everything, in the period from the beginning of the political dialogue to this day, the support of the citizens of Serbia for the dialogue between Belgrade and Priština has been above 50 percent (see the table below). At the same time, the initial resistance to dialogue in April and October 2012 was slightly reduced and today, about one third of citizens oppose the process. Although the majority support for the dialogue is indisputable, two surveys conducted at the end of 2020, only a month apart, indicate different tendencies. The BCSP’s survey shows that the level of support for dialogue today is the same as in October 2012, i.e., that there has been a decline in support in the meantime, while the percentage of those who do not have a clear position on the dialogue has increased. Conversely, a survey conducted by Ninamedia agency for the European Union Delegation in Belgrade indicates that support for dialogue is relatively stable, but that there has been an increase in resistance to the dialogue with a small percentage of those who are undecided.
Table 1. Public support for the dialogue between Belgrade and Priština (2012-2020) Do you support the dialogue between Belgrade and Priština? (%) Apr Oct Apr Feb Sep Mar Oct Oct Oct Nov 2012 2012 2013 2014 2014 2015 2015 2019 2020 2020 Yes 44 51 63 56 58 58 60 55.3 50.6 57 No 41 40 28 29 31 29 28 22.1 28.5 35 Do not 15 9 9 14 11 13 12 22.5 20.9 8 know Source CSDRI BCSP Ninamedia TNS Medium Gallup (EU)
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A brief history of citizens’ views on the dialogue between Belgrade and Priština. What has (not) changed?
BCSP’s survey shows that today, the vast majority of citizens (83%) think that the dialogue between Priština and Belgrade should continue, despite pressure from the international community to resolve outstanding issues with Kosovo Albanians. The opinion that the dialogue should be conducted regardless of EU pressure prevailed among the citizens of Serbia in the BCSP’s survey from 2013. Accordingly, the basic motive for Serbia to continue the dialogue should not be to increase its chances for membership in the European Union. Citizens’ perception of the continuation of the dialogue with Priština was measured differently in 2017, because the BCSP research team, in cooperation with the Center for Free Elections and Democracy (CeSID), formulated the answers to the same question differently. For one third of the citizens of Serbia, the dialogue between Belgrade and Priština was still necessary in order to leave as few unresolved issues in relations with Albanians as possible to future generations. What is different compared to the previous and subsequent research, is that the support for the dialogue is conditioned by the protection of “Serbian interests” and by its final result not being the recognition of Kosovo’s independence by Serbia. However, given the small percentage of citizens opposing the dialogue with Kosovo Albanians and a clear commitment to continuing the process, it can be said that there is a social consensus that the dialogue with Priština is a necessary and important process.
Table 2. Citizens’ perception of the continuation of dialogue between Belgrade and Priština (%) The dialogue between Belgrade and Priština should be continued: Regardless Only if it Only if it does Only if it It should I do of the increases the not lead to the ensures the not be not pressure chances for EU recognition of protection of continued know from the EU membership Kosovo’s Serbian independence interests 2013 56 14 - - 13 17 2017 34 5 14 23 9 16 2020 83 8 - - 9 -
A high percentage of support for the dialogue with Priština calls into question the common assumption that the dialogue is not popular. This also suggests that citizens see the value and benefits from a process of peaceful and diplomatic conflict resolution. However, this assumption was disrupted by an exceptionally large percentage of Serbian citizens (91.6%) who do not see any possible personal benefit from the dialogue, as shown by the BCSP’s survey from 2020. This result may indicate that citizens consider the dialogue to be the responsibility of the political elite or a process that takes place at the macro level, in which they are not directly involved, and which does not affect their lives. A large percentage of citizens who believe that the dialogue does not bring them any personal benefit may also be the result of ineffective communication of the benefits and results of the dialogue by the Government of Serbia. Negative opinions of citizens regarding the benefits of the dialogue are also related to access to information of public importance and transparency of the process, as well as general information citizens have about domestic and foreign policy processes.
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A brief history of citizens’ views on the dialogue between Belgrade and Priština. What has (not) changed?
What do we actually know about the dialogue?
The Brussels dialogue did not lead to a final solution for the status of Kosovo and another agreement on the normalization of relations, but it did resolve many concrete problems, consequently contributing to the normalization of relations between the two societies. According to the analysis conducted by Igor Novaković and Shpetim Gashi for the Friedrich Ebert Foundation, Belgrade and Priština have negotiated about 50 documents over ten years, signed 21 agreements, and about 80 percent of the agreements are being implemented. Due to the significant progress in the dialogue and the signing of the Brussels Agreement on the Normalization of Relations (19 April 2013), Serbia was given a date for the start of negotiations on EU membership, while in 2015, Kosovo signed the Stabilization and Association Agreement (SAA) with the EU.
After almost ten years of negotiations and achieved results, according to the CSDRI’s survey from 2019, 62.3% of Serbian citizens claim that they are not familiar with the content of the dialogue, while one fourth of citizens are partly familiar, and only 12.6% state that they are well informed about the content of the dialogue. This is also confirmed by CRTA’s research on citizen participation in democratic processes from 2019, according to which 65% of citizens estimate that they know little or nothing about the course of negotiations between Belgrade and Priština, and the number of citizens who feel uninformed about that topic has grown by as much as 4% compared to 2018. Apart from not knowing what the subject of negotiations is, according to BCSP’s survey from 2020, half of the citizens do not even know what the goal of the authorities in Belgrade is in the dialogue with Priština, while CSDRI’s survey indicates that 58.5% of them do not know what the Serbian president’s policy is with regard to Kosovo. However, the data from BCSP’s survey showing that two thirds of citizens support Serbia’s goals in the dialogue speaks in favour of the fact that there is no critical questioning of government decisions, but that there is a huge, almost unconditional trust in their intentions. Since most citizens are informed about Kosovo through television (mostly national TV), ignorance of the goals of the dialogue, as well as other topics related to Kosovo, may only be the result of procedural reporting on the dialogue without content analysis, but also vague messages from the authorities due to the lack of clear policies on Kosovo, as well as unwillingness of the main negotiators to make the dialogue process more transparent and open to citizens. In addition, the government clearly has the “tools” to influence citizens to trust it but does not use them to objectively inform the citizens or contribute to improving relations between Serbs and Albanians. The consequence of the non- transparency of the process is the view of 71% of citizens that the dialogue has not changed anything in the mutual relations between Belgrade and Priština, as indicated by BCSP’s survey from 2020 (13% think it harmed mutual relations, and 16% think that relations have improved). The non-transparency of the process and the lack of information among citizens about the dialogue affect their reasoning and make it difficult for them to participate in
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A brief history of citizens’ views on the dialogue between Belgrade and Priština. What has (not) changed?
democratic processes. More importantly, effective independent oversight of the executive is more difficult, and the uninformed public is unable to hold government and public officials accountable for the actions and the decisions they make.
The reason for insufficient information about the course of negotiations between Belgrade and Priština is also the fact that the interest of citizens in topics and events related to Kosovo is not great since citizens are more occupied with economic problems (unemployment, low living standards, economy), corruption and organized crime, including public health, air, and environmental issues. This is confirmed by the data from Open Society Foundation’s survey from 2017, according to which only 13% of citizens actively follow topics and events related to Kosovo, compared to 59% who mostly do not follow topics related to Kosovo, or do not do it at all. A similar result was found by the Centre for Social Dialogue and Regional Initiatives two years later.
Internal dialogue – accepting “the reality” or moving away from it?
Greater participation of Serbian citizens, their associations and other interest groups (e.g., Serbian Orthodox Church, sports associations, entrepreneurs) in the social dialogue about Kosovo should have been achieved by initiating a so-called “internal dialogue”. The internal dialogue1 was initiated by the President of Serbia in mid-2017 under pressure from the West so that the citizens of Serbia would “accept the reality that Kosovo is independent”2 and internationally recognized by many UN and EU member states. Ten years after Kosovo’s declaration of independence, 69% of citizens supported the Serbian president’s initiative for social dialogue about Kosovo, and according to a 2017 survey conducted by Faktor Plus, almost the same percentage of citizens think social dialogue about Kosovo is necessary (70%), and all important social factors should participate (72%). As the key reasons for participating in the dialogue, the majority of citizens pointed out that the status of Kosovo and Metohija is a crucial issue for Serbia (56%) and that it is necessary to make the general agreement among important political and social actors (20%), while less than one fifth think that dialogue is a democratic form of political communication and decision-making (18%), and 6% think that nothing should be hidden from the public eye (Ibid.). The view of the majority of citizens (68%) is that starting a dialogue about Kosovo does not imply a solution to the Kosovo problem.
However, the majority of Serbian citizens were not directly involved in the process according to the 2018 survey of the Institute for European Affairs (IEA), but were partly informed about
1 A similar process has not been started in Kosovo at the same time, which does not imply that citizens in Kosovo are better informed about the dialogue with Belgrade and that the decisions and work of the government in Priština are more transparent. 2 FoNet. “Vilson: Srbija ne kontroliše Kosovo, treba da se suoči sa realnošću.” Danas, 30. maj 2019. https://www.danas.rs/politika/vilson- suociti-se-sa-realnoscu/ ; Zejneli Loxha, Amra. 2012. “Gordon: SAD snažno podržava Kosovo, Srbija treba da prihvati realnost.” Radio Slobodna Evropa, 9. Jul 2012. https://www.slobodnaevropa.org/a/gordon-sad-snazno-podrzava-kosovo-srbija-treba-da-prihvati- realnost/24639956.html; Leon, Jakov. 2012. “Posle izbora, suočavanje sa realnošću.” DW, 10. maj 2012. https://www.dw.com/sr/posle- izbora-suo%C4%8Davanje-sa-realno%C5%A1%C4%87u/a-15938575 Milutinović, Vladimir. “Suočavanje sa realnošću.” Politika, 19. mart 2008. http://www.politika.co.rs/sr/clanak/36755/Specijalni-dodaci/Suocavanje-sa-realnoscu
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A brief history of citizens’ views on the dialogue between Belgrade and Priština. What has (not) changed?
the internal dialogue through the media, and the National Assembly, in which MPs as representatives of citizens are obliged to have public debates on the most important political and social topics, was excluded from the internal dialogue. At the same time, the events that occurred in 2017 and 2018, such as the presidential elections, the assassination of Kosovo Serb politician Oliver Ivanović, the elections in Belgrade, the reveal of the idea of “exchange of territories” and many scandals - pushed this process to the margins of media reporting. As a result, the process of internal dialogue did not involve all important actors, nor did it bring more clarity and contribute to citizens being informed better, but it led to a reversal of the situation and the fact that citizens may have moved further away from the “reality” they had to “confront”. This claim can be illustrated by comparing the data from the research conducted before and after the internal dialogue. A survey by B92 and IPSOS indicates that in 2013, 63% of Serbian citizens thought that Kosovo was a de facto independent state, while after the end of the internal dialogue, 63% disagreed with the claim that Kosovo is independent according to the research of the Center for Euro-Atlantic Studies (CEAS) from 2018. The research of the Open Society Foundation from August 2017 points to the conclusion that the change in citizens’ views occurred in a short period of time, since only a month after the beginning of the dialogue 55% of citizens thought that it is high time to accept the reality and find a compromise solution with the Albanians because the Kosovo problem is perceived as the key obstacle for Serbia’s economic progress (due to undefined borders and black economy, direct expenditure from the Serbian budget for administration, etc.). It is possible that the views of citizens were influenced by the text written by the President of Serbia published in July in the daily Blic, which, among other things, states that “it is time for us as people [...] to be realistic”, then to “try to solve our conflicts” and that “Serbia needs a responsible and serious approach, brave and realistic, but with a view to the future”, because in that case “all roads of political cooperation and economic progress would be open to Serbia”, as well as “the doors of the European Union”.3
Previously mentioned data indicate the manipulation of citizens by political marketing. Government officials and key negotiators in Belgrade present the dialogue with Priština as a marathon process4 in which victory is important (5:0)5 and often send contradictory and confusing messages to the public, like the one that it is in the Serbia’s national interest to perserve Kosovo and the Orthodox churches and monasteries within Serbia, but that it is necessary to respect the reality that “the state authorities of Serbia do not control an inch of Kosovo”6. The public is also confused by the inconsistent behavior of the Serbian government which continuously transfers competences in various areas from the state bodies of Serbia to the executive and public authorities in Priština, while at the same time assuring
3 Vučić, Aleksandar 2017. “EKSKLUZIVNO Autorski tekst predsednika Aleksandra Vučića za "Blic": Zašto nam je potreban unutrašnji dijalog o Kosovu.” Blic, 24, jul 2017. https://www.blic.rs/vesti/politika/ekskluzivno-autorski-tekst-predsednika-aleksandra-vucica-za-blic- zasto-nam-je/v7xgl6q 4 RTS. 2018. “Đurić: Dijalog je maraton.” Danas, 28. maj 2018. https://www.danas.rs/politika/djuric-dijalog-je-maraton/ 5 KoSSev. 2018. “Posle 5:0 i 10:0 Marko Đurić trči na polumaratonu u Briselu.” Kossev, 27. maj 2018.https://kossev.info/posle-50-i-100- marko-djuric-trci-na-polumaratonu-u-briselu/ 6 FoNet. 2018. “Vučić: Pisma penzionerima plaćena novcem stranke.” Danas, 29. novembar 2018. https://www.danas.rs/politika/vucic- pisma-penzionerima-placena-novcem-stranke/
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A brief history of citizens’ views on the dialogue between Belgrade and Priština. What has (not) changed?
the citizens that they work on preserving the country’s sovereignty and territorial integrity with the promise not to recognize Kosovo’s independence. Therefore, it is not surprising that there are conflicting opinions, that is, cognitive dissonance in citizens’ views - such as that more than 50% support dialogue, although they do not know the goal of the Serbian government in negotiations, while more than 90% feel no benefit from it and almost three quarters thinks it has not changed anything.
Constructive ambiguity and consequences
Since the beginning of the dialogue in 2011, the EU has also been deliberately vague about defining the goals of the dialogue and what the normalization of relations between Belgrade and Priština means. The EU’s approach to the dialogue includes the so-called constructive ambiguity, which enabled Belgrade and Priština to reach different agreements, but (un)intentionally created potentially severe consequences for control of expectations in both societies. Examples of constructive ambiguity that raise controversy in both societies are: the use of the phrase administrative line instead of border, stating that the Kosovo government has jurisdiction instead of sovereign authority in Kosovo, accepting the name Kosovo with an asterisk (*) and footnote instead of the name for the autonomous province of Kosovo and Metohija, etc.
Constructive ambiguity has resulted in over 60% of citizens thinking that recognizing Kosovo is a conditio sine qua non for Serbia’s accession to the EU. The conditionality of European integration with progress in the dialogue with Priština is often linked to the negotiating Chapter 35 on other issues, including Kosovo as the most prominent issue, and the United Nations General Assembly Resolution of 8 September 2010 (A/64/ L.65/Rev.1) which states that “dialogue should promote cooperation, achieve progress on the path to the European Union and improve the lives of people”7. Even though the recognition of Kosovo is presented to the Serbian public as a “condition of all conditions” for Serbia’s accession to the EU, the majority of Serbian citizens are continuously against it (see the table below). An exception to this rule is the finding from the research “Citizens’ views on resolving the status of Kosovo” of the Open Society Foundation (2017) on whether Serbia should stick to European integration at the cost of Kosovo. The research indicates the division of the society, since 43% think that “Kosovo as a territory is already lost, Serbia should take care of Serbs and cultural heritage in Kosovo, but it is unreasonable to give up the chance for faster development of Serbia offered by joining the European Union for an already lost territory”, while 37% believe that “Serbia has no benefit from the European Union and should not make any compromises related to Kosovo, even if all ties with the European Union are cut off.”
7 United Nations General Assembly. 2010. “Request for an advisory opinion of the International Court of Justice on whether the unilateral declaration of independence of Kosovo is in accordance with international law.” September 8, 2010. https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3- CF6E4FF96FF9%7D/Kos%20A64%20L.65%20Rev1.pdf
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A brief history of citizens’ views on the dialogue between Belgrade and Priština. What has (not) changed?
Table 3. Citizens’ views on Kosovo recognition for EU membership
If the recognition of Kosovo’s * Should Serbia recognize independence of independence is a condition for EU Kosovo and Metohija if it is a condition for accession, do you think it should be Serbia’s accession in the European Union? accepted? (question 2016) ** Would you support the independence of Kosovo for Serbia’s faster membership in the European Union? (2018-2020) 2013 2014 2015 2016 2016* 20178 2018** 2019 2020 No 67.7 65.8 71.1 73.5 80 - 81 78 77 Yes 22.4 18.8 15.6 12.6 14 - 11 13 13 Do not - 15.7 13.3 13.9 6 - 8 9 10 know New Serbian Political Thought Institute for European Affairs
As shown in the BCSP’s survey from October 2013, optimism prevailed because 43% of citizens thought that dialogue was a way to improve mutual relations, while slightly more than one fifth (27%) were convinced that this would not happen. Six years later, a CSDRI’s survey indicates pessimism among Serbian citizens about dialogue and improved relations between Albanians and Serbs, as 55.8% of citizens though that the Brussels dialogue has not improved Serb-Albanian relations, and only 16.6% thought that it has, while 27.6% have a neutral view. This finding and those from previous research show that the current way of conducting negotiations, with non-transparency, unclear goals, and exclusion of the majority of the public, creates the impression in the public that the dialogue process leads nowhere, and that pessimism grows over time because of that. These data, with general support for dialogue, but the absence of benefits, actually speak volume about disappointed citizens. In addition, today, two thirds (72.7%) do not believe that there will be peace between the two nations (BCSP 2020). For 62% of citizens, the expected normalization of relations between Kosovo Albanians and Serbs will not happen in the near future, regardless of the outcome of the dialogue, which means even if another agreement is reached within the Brussels dialogue (Ibid.). However, for 28.8% of citizens, normalization of relations is possible if a final agreement is reached (Ibid.). However, Serbian citizens are also pessimistic about the possibility of reaching a final agreement with Kosovo, since 53% think that it will never happen, and one fourth (25%) think that the final agreement with Serbia will be reached in the next 3-5 years (BCSP 2020). Normalization of relations through citizens seems to be considered a political necessity, however, research findings indicate that the reach of the process of normalization of relations is limited to the level of political elites involved in dialogue, but that there has been no improvement in relations between the two societies. In that sense, another agreement on the normalization of relations between Belgrade and Priština
8 Institute for European Affairs did not conduct a research on Kosovo in 2017.
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A brief history of citizens’ views on the dialogue between Belgrade and Priština. What has (not) changed?
under the auspices of the EU might be a success in the eyes of international actors, but not for the majority of Serbian citizens.
VIEWS OF SERBIAN CITIZENS ON THE FINAL SOLUTION OF THE KOSOVO ISSUE
The first impression based on a comparative review of Serbian public opinion polls in relation to an adequate solution for the final status of Kosovo is that they cannot provide particularly precise answers and that many questions remain open. This does not seem surprising, having in mind that even from the statements of Serbian officials, it is not clear what the government’s plan is on this issue. Still, it is possible to draw several general conclusions. First, the recognition of independence, as well as the exchange of territories are undesirable options for the majority of Serbian citizens. Second, delimitation as a concept is articulated in a confusing way and that citizens mostly do not know what to think about that solution. Third, the division has the support of a slightly larger number of citizens, but it does not have enough support at this moment in order to succeed in a referendum. Fourth, a combination of territorial concessions (division of Kosovo) and institutional concessions (for the Serbs south of the Ibar river and for the SOC) would lead to increased support and future research need to develop different modalities of such solutions to reach more precise conclusions about which concessions are sufficient for citizens to accept the recognition of (a part of) Kosovo. The fifth conclusion is that a solution for the status of Kosovo that does not imply recognition could have the support of the majority of citizens. Finally, the sixth conclusion is that, despite the government’s narrative of the need to find a historic solution and compromise with the Albanians, citizens still prefer status quo to a solution in which Serbia would have to make concrete concessions and get something in return.
We know what we do not want– the recognition of independence
The first issue to be singled out in this field is the relative continuity in rejecting the recognition of independence (with the existing borders) as an option for a final solution of the Kosovo’s status. According to the latest survey of the Belgrade Center for Security Policy (BCSP) from October 2020, a total of 7.8% of Serbian citizens believe that the recognition of Kosovo with the existing borders is the best final solution for the status of Kosovo. Since opinion polls began to consider options for Kosovo’s final status, support for (recognizing) Kosovo’s independence as a final solution has almost never been in double digits. The only slight exception was the survey of the Center for Social Dialogue and Regional Initiatives (CSDRI) conducted in late September 2019, but even then, only 12.4% of citizens said that, in a possible referendum, they would support an agreement by which Serbia recognizes Kosovo, while 78.5% were against it, and 9.1% were neutral. So, it is obvious that this is an option that continuously (and as expected) has the least public support in Serbia.
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A brief history of citizens’ views on the dialogue between Belgrade and Priština. What has (not) changed?
Recognition is also the option that is least articulated in the proposals of Serbian political actors, which was publicly advocated only by political groups of negligible influence. Even when some actors emphasized the need for a “realistic” view of matters and claimed that they were “not presidents in Priština” (President Tomislav Nikolić) or that Serbia did not have “a single inch” in Kosovo (President Aleksandar Vučić), such a diagnosis was not followed by a recommendation of “therapy” in the form of recognition of independence – but a far broader call for compromise on this issue. This brings us into the classic “chicken-egg” dilemma - is the lack of a clear articulation of Kosovo’s recognition as one of the options the reason why public opinion does not support this option, or is a strong public opinion on this issue the reason why politicians avoid mentioning recognition as a taboo?
It is impossible to give a definite and simple answer to this question. However, the fact is that this “realistic” discourse of the government did not affect the changes in the perception of the current situation. Namely, compared to the period 10 years ago, fewer people in Serbia today believe that Kosovo is lost, regardless of whether they support recognition or not, as already mentioned in the previous part of the analysis. This speaks in favour of the thesis that the influence of political actors in Serbia on public opinion towards Kosovo is still somewhat limited. For example, in a research conducted by the Institute of Social Sciences (IDN) from 2000 to 2004, the percentage of respondents who felt that Kosovo was not lost varied between 22% and 42% (the highest percentage was in 2001, when there was hope that DOS could “return” Kosovo), while the percentage of those who thought that Kosovo was lost ranged between a minimum of 35% in October 2001 and a maximum of 56% in November 2003 (Slavujević 2018). In March 2013, as many as 63% of the citizens in the survey of B92 television and Ipsos Agency thought that Kosovo was lost, while only 32% thought that it was not. The situation has been significantly different in recent years, and all research, with the exception of the research of the Institute for European Affairs from March 2019, showed that there were more people who thought that Kosovo was not lost than those who thought it was. In the surveys of the Center for Euro-Atlantic Studies from 2018 and 2019, the percentage of those who thought that Kosovo was not lost was as much as 63% and 58%, respectively, and the CSDRI’s survey from September 2019 showed that the absolute majority of citizens (52.1%) believed that Kosovo was not lost.
Also, the mentioned CSDRI’s research showed that even the voters of the ruling parties were not particularly receptive to the messages of such a “realistic” discourse and that those parties encountered cognitive dissonance among voters - who claimed that Serbian leaders were firm and uncompromising about the issue of Kosovo. although they themselves explicitly stated that they were in favour of a compromise! The reasons for this outcome can be found in the reporting of pro-government tabloids, which, seemingly paradoxically (and perhaps deliberately) had a completely different narrative on these topics and thus “blurred” all compromise messages for their readers sent by representatives of the current government on
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this topic. Certainly, future research should address in more detail the mutual influence of the media, politicians and public opinion on the issue of Kosovo, in order to arrive at a clearer answer to the question of who in this triangle has the greatest influence on whom.
Table 4. Citizens’ support to the recognition of Kosovo’s independence
Research Organisation The Agency conducting Support to (unconditional) implementation research recognition of independence period (%) February 2017 BCSP CeSID 8% August 2017 FOD IPSOS 5% December 2017 FOD IPSOS 7% March 2018. Tanjug Faktor plus 8% March 2019 IEP Ninamedia 6.2% May 2019 Blic Faktor plus 8% September 2019 CSDRI Sprint Insight 12.4% June 2020 IEP Ninamedia 9% November 2020 BCSP Sprint Insight 8%
Note:
- responses to questions ‘what is the best solution for Kosovo’ - responses to questions ‘would you support Kosovo’s independence’
Are there concessions for which we would recognize Kosovo?
Some research has shown that recognizing Kosovo’s independence within the existing borders, with certain additional concessions, would have the support of a slightly larger number of citizens. The problem is that it is impossible to determine the precise opinion of citizens on the basis of existing research results on how many concessions would satisfy them, let alone trends in this regard. For example, in the CSDRI’s survey, 20.4% of citizens said they would support the recognition of Kosovo if the Community of Serb Majority Municipalities was established in return and extraterritorial status was granted to Serbian monasteries in Kosovo, while the same percentage was neutral, with 58.2% citizens against it. OSF’s survey from December 2017 showed that 7% of citizens believe that the best solution is the recognition of independence with territorial and personal autonomy for Kosovo and Metohija, and when we add the identical percentage of those who supported recognition even without this condition, it makes a total of only 14% of those who would certainly support this proposal. However, the findings of this research indicate the first preferences, so that does not mean that support for a solution with autonomy for Serbs in which independence is recognized would not be greater.
On the other hand, CEAS’ survey, conducted almost at the same time as the CSDRI’s survey, shows a much greater willingness of Serbian citizens to compromise in the event of
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A brief history of citizens’ views on the dialogue between Belgrade and Priština. What has (not) changed?
reciprocal concessions. Namely, according to the findings of this research, 62% of citizens would certainly or probably support an agreement that implies mutual recognition, if it would guarantee Serbia an access to resources in northern Kosovo, with a total of 28% of citizens against it. The result is similar if Serbia was offered special status for the Serbian Orthodox Church (SOC) in Kosovo, with recognition in that case being accepted or probably accepted by 61% of citizens, and 30% of opposing respondents. Given the extremely high percentage of respondents who oppose recognition, it seems rather surprising that a large number of them would be willing to accept recognition if Serbia received relatively small concessions in return, as suggested by the CEAS’ survey. Future public opinion polls should certainly address this aspect of citizens’ opinions far more thoroughly, including how much autonomy for Serbs (or how broad the competencies of the CSM) would be enough for some citizens to recognize Kosovo.
Another option that was occasionally mentioned in the discourse of certain political actors was the possibility for Serbia to recognize Kosovo, and in return to “gain” the independence of the Republika Srpska (RS), or even its annexation to Serbia. The analogy between the right to self-determination of Kosovo Albanians and Serbs in BiH was drawn relatively often in the middle of the first decade of the 21st century by Serb officials such as Zoran Đinđić, Vuk Drašković, Nebojša Čović or Slobodan Samardžić, but primarily as an argument against Kosovo’s secession because of the possible domino effect. and not as a solution proposal. Since 2008, no such parallels have been used by the leaders in Belgrade, but in the second decade of the 21st century, connecting the fate of Kosovo and RS has become an integral part of the political discourse of the political leader of Serbs in BiH, Milorad Dodik. BCSP’s survey from 2020 shows that as many as 80% of Serbian citizens reject this idea. It is obvious, therefore, that the citizens are not only interested in the size of the territory, and that the territorial compensations to Serbia in this way would not be satisfactory for the citizens.
Even EU membership as compensation for the recognition of Kosovo would not be an acceptable concession for most Serbian citizens. Surveys conducted by the New Serbian Political Thought (NSPM) between 2013 and 2017 show that the percentage of respondents who oppose recognition for the sake of EU membership varied over the years between a minimum of 65.5% and a maximum of 76.3%. IEA’s surveys between 2016 and 2020 showed that at the end of the decade, this percentage increased even more, so between 77% and 81% of respondents constantly opposed recognition for the sake of a faster path to EU membership. However, if rapid membership was accompanied by other concessions for Serbs and the Serbian Orthodox Church in Kosovo, it is possible that the level of support would be higher. Future research should also address how possible large sums of money that the EU and the United States would donate in case of recognition would affect the opinions of citizens on this issue. Of course, the key question would be how the authorities would articulate this proposal in their communication with the public and how much resources they would invest in winning the public for such a potential solution.
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Mysterious variations on the issue of delimitation
When we move from the option of recognizing Kosovo in its current state, with possible concessions regarding the position of Serbs in Kosovo, to the field of various compromises, which include territorial concessions to Serbia for mutual recognition, the possibility of delimitation has been emphasized lately in the discourse of political officials. This solution began to appear in public as a possible solution in 2017, when President Aleksandar Vučić pointed out that he was supporting it and when the internal dialogue on the Kosovo issue in Serbia began. However, neither Vucic nor other political actors specified what the delimitation should mean in practice. Is it the division of Kosovo, the exchange of territories, a small correction of the border line or something else? Where and how would this delimitation be made?
Opinion polls have shown that, as expected, citizens were not sure what the delimitation actually meant. For example, the IEA’s survey from March 2019 showed that 57% of citizens did not know what exactly this wording meant, 29% thought that it meant the exchange of territories (northern Kosovo for the Preševo Valley), and 14% thought it meant establishing the border along the current administrative line, i.e., the recognition of Kosovo within its current borders. This finding coincides with the findings of CSDRI’s survey conducted six months later, where 58.5% of respondents said they were unfamiliar with President Vučić’s policy towards Kosovo.
Certain research has also raised the question of whether citizens would support delimitation, which seems paradoxical, bearing in mind that most do not even know what it means. The CEAS’ survey from December 2018 showed that 36% of the respondents would support the delimitation in the referendum, while 34% would be against it, and the rest do not know what they would decide, or they would not participate in the referendum. A year later, the percentage of those who would support delimitation increased to 39%, but the number of opponents also increased to 38%. Finally, this year, the percentage of respondents who would support delimitation in the referendum dropped to only 29%, while the number of opponents increased to as much as 54%. Other surveys showed less support for this solution even before 2020, so the previously mentioned IEA’s survey from March 2019 recorded 24.5% of positive opinions of respondents regarding delimitation, with 41.8% of opposing respondents. Two months later, a survey by the daily Blic and the Factor Plus agency showed that 32% of respondents believe that delimitation is the best option for a final solution, without specifying what is meant by delimitation.
Having in mind that the level of support for delimitation varies from research to research, it is not easy to draw a concrete conclusion about how much support the citizens have for this proposal. Such variations are not overly strange, given the inaccuracy of the state leaders
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A brief history of citizens’ views on the dialogue between Belgrade and Priština. What has (not) changed?
regarding this proposal. However, it seems that one trend can be noticed from the CEAS’ research, and that is a serious increase in the number of opponents to delimitation from 2018 to 2020. There may be several reasons for this, but one of the key reasons is probably the fact that lately there has been speculation that such a scenario is impossible due to the rise of the Self-Determination Movement in Kosovo, which strongly opposes it, due to the open opposition to border changes by Germany, and due to the rejection of this option by the United States, which were believed (especially during the period when the president’s national security adviser was John Bolton) to be ready to accept and sponsor such an idea a few years ago.
Table 5. Citizens’ support to “delimitation” Research Organisation The Agency conducting Support to delimitation implementation research period December 2018 CEAS CeSID 36% March 2019 IEP Ninamedia 24.5% May 2019 Blic Faktor plus 32% November 2019 CEAS CeSID 39% July 2020 CEAS CeSID 29%
Note: - responses to questions ‘what is the best solution for Kosovo’ - responses to questions ‘would you support delimitation’
Undesirable exchange of territories
When delimitation is further specified as an exchange of territories, the percentage of those who would support such a solution is not large. This option is most often operationalized through a formula: four Serb-majority municipalities in northern Kosovo in exchange for (part of) the predominantly Albanian Preševo Valley in south-central Serbia, and with mutual recognition. Although the concept of “delimitation” can also mean the division of Kosovo, in international and domestic circles, since 2017, more and more people have started talking about how it is actually a proposal for the exchange of territories. It was also indicative that a similar narrative started to be used in this period in Kosovo by the then President Hashim Thaçi, who was believed to be willing to reach an agreement with President Vučić based on this model.
The findings of public opinion polls, which only started to include this option in 2017, contain significant variations in this regard as well, but it is clear that most citizens do not prefer this option and it seems that support for this option even decreases over time. The most positive opinions on the exchange of territory are recorded in the research of the Open Society Fund in Serbia (OSF) from August 2017, in which as many as 20% of surveyed citizens mentioned the exchange option as the most desirable outcome, while in December of
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the same year this percentage dropped to 15%. However, it should be noted that the option of division in this survey was accompanied by “special care for the human rights of Serbs who remain in Kosovo and protection of Serbian churches and monasteries”, while support for division without such additions was lower. According to the findings of a 2020 survey by the Belgrade Center for Security Policy (BCSP), only 4% of respondents chose exchange as the most desirable option for Kosovo’s final status. Even when the question is formulated in a way to ask whether this option would be acceptable (even if it is not an initial preference) for citizens, the CSDRI’s survey from September 2019 showed that only 15.8% of respondents would support the exchange of territories if it was proposed as a solution, with unequivocal opposition from two thirds of respondents (66.7%).
The question is whether the support for this proposal would have been greater if President Vučić had clearly and unequivocally said that he supports the exchange of territories as the final solution, instead of saying that he supports “delimitation”. The fact that, as we have already pointed out, a good part of his voters did not take into account his declared inclination towards a compromise solution, adds a dose of scepticism to this conclusion. Also, the question is whether the number of citizens who support the exchange would decrease if it meant receiving only a part of northern Kosovo (and not all four Serb-majority municipalities), or giving in return the entire Bujanovac municipality (where a large number of Serbs live) and the entire Preševo municipality (including the highway), and maybe even the majority of Serbian Medveđa? The assumption is that in that case, support would drop. Certainly, the findings of public opinion clearly suggest that the exchange does not have sufficient support among the citizens of Serbia. In surveys that provide more detailed questionnaires (field), questionnaires could also take into account variations in possible exchange models, as well as how many citizens would support this option in a referendum if it was accompanied by additional concessions (such as extraterritoriality for monasteries or constitution of CSM for Serb-majority municipalities south of the Ibar River) in order to gain a more precise insight into the opinions of citizens on this issue.
Table 6. Citizens’ support to exchange of territories Research Organisation The Agency Support to exchange implementation conducting research period August 2017 FOD IPSOS 14% (with protection for Serbs and SOC) December 2017 FOD IPSOS 21% (with protection for Serbs and SOC) September 2019 CSDRI Sprint Insight 15.8% November 2020 BCSP Sprint Insight 4%
Note: - responses to questions ‘what is the best solution for Kosovo’ - responses to questions ‘would you support exchange’
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A brief history of citizens’ views on the dialogue between Belgrade and Priština. What has (not) changed?
Divided over the division
Another possible specification of “delimitation” as a concept would be that it actually means the division of Kosovo. This option has been in the public spotlight much longer and it began to be a possible solution in the 1990s, although the support of neither the public nor the political elites for this option was enough at that time to take it more seriously. However, the divisions of Kosovo along ethnic lines in the conceptions of Dobrica Ćosić, Aleksandar Despić, Branimir Krstić or Slobodan Samardžić significantly differed in the (informally proposed) lines of delimitation, and some also regarding whether it should have meant the definitive secession of the Albanian part of Kosovo from Serbia, in relation to the concept of division that is considered after 1999. In the last 20 years, the term division has most often meant that four Serb-majority municipalities north of the Ibar River become a part of Serbia, and the remaining territory gains internationally recognized independence. The division today contains more support from citizens than the exchange of territories or recognition of independence, but it seems that it is still insufficient to verify such an agreement in a potential referendum.
During the first decade of the 21st century, support for this solution was at a pretty high level, according to the findings of the research of the Institute of Social Sciences (IDN) from Belgrade (Slavujević 2018). In the first years of the 21st century, it reached 37% in the research from 2001, and as much as 43% in 2003. By the end of the decade, it first dropped to 28% between 2007 and 2009, before increasing again to 38% in November 2010. By the end of the next decade, the percentages will remain similar, so IEA’s survey from 2016 will show that 37% of respondents would support the division, but only if it is acceptable for Serbs from Kosovo, while 52% rejected this option even in that case. A survey conducted by this organization in March 2018 showed that 33% of respondents would support the division of Kosovo (this time without the condition that it is acceptable for Serbs in Kosovo), while 56% would be against it. This is similar to the findings of the research of Blic and the Factor Plus agency from July 2018, which showed that 32% of respondents would support the division in the referendum, while the option “no” would be selected by 44% of respondents, and almost one quarter of respondents (24%) still did not have an opinion on this issue.
However, the findings of the NSPM’s survey from July 2019 indicate that support for the division has dropped to 27.3%, despite a milder formulation in the questionnaire – that, in return, Kosovo will receive international recognition and a seat in the UN, without explicitly mentioning recognition by the official Belgrade. The findings of the CSDRI’s survey from September 2019 indicate that only 21.9% of respondents would support this idea in a referendum, with 57.3% opposing and approximately 20.9% undecided. Such findings may indicate a slight downward trend in support to this solution compared to the percentages of surveys conducted in previous years. This can also be noticed in research that sought an
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answer to the question of what the best solution for Kosovo is, according to citizens. In the BCSP’s survey from February 2017, a total of 11% of respondents pointed out that they see division as the best solution, and in the survey conducted by the same organization in November 2020, that percentage dropped to only 6%. Still, to confirm this hypothesis, it would be necessary to have more regular surveys of citizens’ opinions on this issue, with the same formulation of the question, in order to adequately compare changes.
It is certainly interesting that, even if the decline is not as sharp as the comparison of these surveys shows, there is definitely no increase in support for division among the citizens of Serbia, despite the official support of the state leaders to “delimitation”. It should be noted that the level of support would probably be lower if the division meant that Serbia does not get all four municipalities in northern Kosovo, which was an option in political circles, but not taken into account by public opinion polls. The only exception is CSDRI’s survey from 2019, which also offered an imaginary referendum option in which Serbia gets three municipalities from the north of Kosovo, Kosovska Mitrovica becomes a district, and Trepca and Gazivode go under international administration. This option was supported by 18.9% of respondents - which is three percent less than in the case of delimitation by the Ibar River. This finding partially confirms the assumption that a territorially or otherwise defined division would have even less support from the citizens of Serbia. Future research should take into account different variations of the division and address additional concessions which would make the division acceptable to a larger number of citizens.
Table 7. Support to division of Kosovo Research Organisation The Agency Support to division of Kosovo implementation conducting research (without additional conditions) period July 2001 IDN / 37% June 2003 IDN / 43% October 2007 IDN / 28% February 2008 IDN / 28% August 2009 IDN / 28% November 2010 IDN / 38% July 2016 IEP Ninamedia 37% (with support from Serbs from KiM) February 2017 BCSP CeSID 11% March 2018 IEP Ninamedia 33% July 2018 Faktor plus Faktor plus 32% July 2019 NSPM NSPM 27.3% October 2019 CSDRI Sprint Insight 21.9% November 2020 BCSP Sprint Insight 6%
Note: - responses to questions ‘what is the best solution for Kosovo’ - responses to questions ‘would you support the division of Kosovo’
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A brief history of citizens’ views on the dialogue between Belgrade and Priština. What has (not) changed?
What do we actually want?
Most Serbian citizens would prefer the option of not recognizing Kosovo as part of the final solution. Recent CEAS’ surveys have shown that the absolute majority of Serbian citizens are in favour of Kosovo remaining “part of Serbia” at all costs (2018-53%; 2019-66%). The research findings show that in this domain, a broad autonomy for Kosovo within Serbia is still the most popular option, so in the last BCSP’s survey from November 2020, 48% of respondents chose this concept as their preference for the future status of Kosovo. Somewhat less support for this option was recorded in OSF’s surveys in 2017 (August - 26%; December - 28%), but it was still the most popular first choice that respondents would choose. Of course, this is the option of the first choice, so the possible support for this option in a referendum would be far greater. However, research through focus groups conducted by OSF in 2018 showed that citizens were still aware that, although this was a desirable scenario - it was not realistic, because Priština would not want to accept it - just as it did not want to accept this proposal during the 2006-2007 dialogue. At that time, the support of the citizens of Serbia to this idea as an official proposal of Belgrade was also high and amounted to 57% of respondents, according to the findings of the IDN’s survey from October 2007 (Slavujević 2018).
When we move to more realistic scenarios, the frozen conflict stands out, that is, status quo. In the OSF’s survey from 2017, this was not among the most desirable options for a large number of respondents (August - 7%, December - 11%), but a qualitative survey conducted by the same organization the following year qualified this scenario as moderately desirable, but very realistic. Subsequent research by the Factor Plus agency indicated a large percentage of citizens who would support this option (2018 - 63%; 2019 - 50%). A similar finding was recorded by the NSPM’s survey from July 2019, according to which a relative majority of 46.2% agreed with the position that the resolution of the status of Kosovo should be postponed for better times, while 32% of respondents were against. All this represents a considerable increase compared to the years around the unilateral declaration of independence (2007-2009) when, according to the findings of the IDN’s survey, support for status quo was continuously only 4% (Slavujević, 2018). A probable reason for the increase is the fact that a decade later it was realized that the current situation was somehow sustainable and could function without a final solution, and that the solution the majority of Serbian citizens would prefer (broad autonomy within Serbia) was currently unrealistic. However, it is interesting that this finding is in complete contrast with the narrative of state officials (especially President Vučić) who, since the opening of the internal dialogue, have insisted on the need for a historical solution and compromise with Albanians, i.e., the need to get out of the current situation.
The research findings show that some other options that do not include recognition could potentially gain the support of Serbian citizens in a possible referendum, although they are far
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less popular than broad autonomy or the status quo scenario. The BCSP’s survey from 2017 showed that the largest number of surveyed citizens (31%) circled the option that any agreement that promotes stability is acceptable to them, as long as there is no formal recognition. If we add those who would support any solution that improves the protection of the rights of Serbs in Kosovo (30%), it is clear that there is a large pool of support for solutions that would include, for example, the establishment of CSM in Kosovo, and some concessions for Priština by Belgrade, but with a condition for Serbia not to recognize Kosovo. This is confirmed by the findings of the CSDRI’s survey from September 2019, where 32.6% of respondents said they would support the agreement according to which Kosovo gets a seat in the UN, and Serbs fin Kosovo get the final constitution of the CSM, but Serbia does not formally recognize Kosovo. As many as 47.5% of the surveyed citizens are against this scenario, with 19.9% neutral, but it is possible to imagine that, with the government’s campaign to support such a scenario, the support would be even higher and would overcome the opposition. When asked to choose between this scenario and the exchange of territories, almost a three-quarter majority of the respondents (72.9%) chose this option without recognition.
There are also two options that include recognition, and which could hypothetically be supported by the majority in Serbia. We will call the first option “division plus monasteries”, and it implies a division in which Serbia would get the northern majority Serb municipalities, and the rest of Kosovo would get recognition of independence, but it would be followed by an additional solution for the Serbian Orthodox Church in Kosovo. According to NSPM’s research, the option of dividing Kosovo, in which Serbia would have the north and key monasteries, was acceptable to most people during the first half of 2010s. Thus, support for this solution in 2013 amounted to a record 68.6%. From the middle of the decade, the support dropped, and in 2015, such a solution was supported by a relative majority of 46%, with the opposition of 44.4% of respondents. It should be noted that only in the 2015 survey, an opinion was explicitly added that the rest of Kosovo would gain recognized independence, so it is possible that one of the reasons for such a difference in findings within just two years is the emphasis on recognition in the questionnaire (even though this was implicitly stated in earlier questionnaires). However, even in this research, the number of supporters of the division remained higher than the number of opponents. In OSF’s survey from December 2017, 21% of respondents chose division as the best solution, with special status for SOC churches and monasteries south of the Ibar - the second most popular choice after broad autonomy. If we add 15% of those who chose the exchange of territories and 7% of those who chose the recognition of independence as the best option (and who would probably support a more favourable division for Serbian side), it is likely that over 40% of respondents would support this option as well, which could then have been the majority of the turnout at the referendum. However, it is still uncertain whether the majority in a possible referendum in the coming years would really support such an option, especially having in mind the
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decline in support for the “ordinary” division in the last few years, compared to support that existed previously.
The second option will be called “division plus guarantees”, and it implies that, in addition to the division, certain institutional protection would be guaranteed for Serbs south of the Ibar (through a guarantee of self-government / autonomy and / or the stay of KFOR). According to the findings of the CEAS’ survey from autumn 2019, the division, with “broad autonomy” for Serb municipalities south of the Ibar and the continued presence of KFOR, would be supported by as many as 44%, with 25% opposed and a large group of as many as a fourth (25%) of citizens who are “neither for nor against it”. On the other hand, the findings of the CSDRI’s research from the same period (autumn 2019) give different results, according to which the option of division, which would be followed by the constitution of CSM for Serb municipalities south of the Ibar, as well as extraterritoriality for SOC’s monasteries, would be supported by 36.4% citizens, 44.4% would be against it and 19.2% neutral. This finding brings doubts towards the claim that the option “division plus guarantees” or “division plus monasteries” would have the support of the majority, because in this case even the integration of both models did not have the support of a relative majority. Still, it should be emphasized that this option received the greatest support of all the compromise solutions offered to the surveyed citizens in the mentioned research. With a referendum campaign, it would be very possible for the 8% difference between support and opposition to disappear and for this option to gain the support of the majority of citizens. In the future, it would be very useful to develop more precise questionnaires, in order to get a clearer insight into the degree of concessions in these domains that would satisfy the citizens of Serbia sufficiently to choose the option “yes” in a potential referendum, and to understand whether institutional concessions for Serbs south of the Ibar are more important than those for the SOC.
Table 8. Citizens’ support to different “division plus” options Research Organisation The Agency Additional Support for “division implementation conducting concession with plus” period research division (“plus”) November “monasteries most NSPM NSPM 50.8% 2011 important” “monasteries most May 2013 NSPM NSPM 68.6% important” “monasteries most October 2015 NSPM NSPM 46% important” “special status for August 2017 FOD IPSOS SOC’s churches and 15%* monasteries” “special status for December FOD IPSOS SOC’s churches and 21%* 2017 monasteries” “CSM in the south September CSDRI Sprint Insight and exterritoriality 36.4% 2019 for Serbian
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monasteries” “continuing the presence of KFOR November and broad autonomy CEAS CeSID 44% 2019 for Serb municipalities” (south of the Ibar)
Note: - responses to questions ‘what is the best solution for Kosovo’ - responses to questions ‘would you support division plus’
Conclusion
Although we know what we do not want at all, as well as what we would like the most if it was possible (broad autonomy of Kosovo within Serbia), it seems that it is difficult to define what would be acceptable to us in the end. This situation is not surprising, given the confusion produced by the state leaders regarding this topic. According to IEA’s survey from June 2020, as many as 89% of citizens believed that they did not know what the plan of the Government of Serbia for Kosovo was. The internal dialogue obviously did not contribute to better communication between the citizens and the state leaders regarding the solution for the status of Kosovo, because only 3% of the citizens in the IEA’s survey from March 2019 said that they participated in it. However, it is anticipated that citizens would prefer an option that does not imply the recognition of Kosovo, especially if it contributes to a better position of Serbs in Kosovo. In addition, the option of division and additional concessions for Serbs south of the Ibar and for the SOC could have the support of the majority of citizens, but only with an adequate campaign. As mentioned several times, in the future, public opinion polls should calibrate their questionnaires much more precisely, so that we can get more concrete information about citizens’ opinions on this topic, and specific proposals in this regard will be presented in the last part of this analysis. It would also be desirable to have more questionnaires conducted in direct (face to face) surveys of citizens, which has been the case since 2013 only in the BCSP, CSDRI and FOD’s surveys, while the rest were conducted by telephone surveys.
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SUGGESTIONS FOR FUTURE RESEARCH
Public opinion polls on Kosovo, the dialogue between Belgrade and Priština, or relations between Serbs and Albanians attract a great deal of interest from the public and are therefore often conducted. This research, for example, identified and covered 36 quantitative public opinion polls conducted in the period 2013-2020, with different scope of topics and methodological approaches.9 While analysing the findings and trends, the research team noted that, although very useful for understanding the current situation, all research suffers from certain problems that make it impossible to accurately determine the dynamics of changes in citizens’ opinions over time. In other words, although there is a sufficient number of surveys at almost strictly regular time intervals, due to inconsistencies in research design it is impossible to analyse them as a time series.
Therefore, in addition to analysing public opinion in previous sections of the report, this chapter examines methodological approaches in public opinion research in more detail, with the intention of proposing ways to address the above mentioned shortcomings. This would improve the research agenda about citizens’ opinions on these important issues, upgrade the quality of available data and provide a better understanding of changes and trends that are evident but insufficiently researched.
Sample and methodology
The main difference between the analysed public opinion polls is in the way the respondents’ answers were collected. Most research have applied telephone interviewing, most often computer-assisted telephone interviewing, so-called CATI (e.g., a series of IEA’s surveys or the ones done for daily newspapers), while face-to-face method was used less often (CSDRI, OSF and BCSP’s surveys). Although due to a lower cost and simpler implementation, telephone interviewing is often the only option, field research and face-to-face interviews are a gold standard of public opinion polls. Without going into a detailed consideration of the advantages and disadvantages of these different approaches, it is important to note that they are not always comparable for the following reasons.
First, although most surveys include enough respondents to make estimates for the population of Serbia as a whole (between 1000-1200), sampling errors are always higher in those conducted by telephone than in face-to-face interviews. Telephone interviews cannot provide the representativeness that field research can, as it depends on the willingness to respond to the call as well as the prevalence and use of telephones in households. While some of these challenges can be addressed by research design, some are inevitable. For example, although some telephone surveys stratify their sample by gender, age, education, and region in which
9 See the annex with the list of all used surveys.
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A brief history of citizens’ views on the dialogue between Belgrade and Priština. What has (not) changed?
respondents live (IEA), they immediately exclude an increasing percentage of people who use only mobile phones and who are not covered by this approach at all.
An additional challenge regarding telephone interviews is that they are not suitable for researching views on complex issues, which the topic of Kosovo certainly is. For example, a large number of surveys after 2017 focused on how citizens understand the proposal on demaraction, which at that time began to be presented in the media as one of the solutions within the negotiations between Belgrade and Priština. The initial results showed that citizens generally do not understand what exactly this proposal includes, which may be a consequence of communication difficulties, and in a telephone conversation it should be explained that it could mean exchange of territories (northern Kosovo for Presevo Valley), but also recognition of Kosovo within current borders, i.e., setting the border where the administrative line is now.
Finally, some opinion polls, in addition to only providing statistics without interpretation, which is left to the imagination of readers, do not report at all on the methodology used. This makes it impossible to assess the quality of the results obtained in this way, and it primarily refers to research that was done for the needs of dailies, such as the research conducted by Factor Plus for the daily Blic or the Tanjug agency. Although it is understandable that newspaper articles are written in a way that is different from research reports, it is necessary to include at least basic data on the size and representativeness of the sample, as well as data collection methods.
Based on this brief analysis of methodological challenges, general recommendations for the future research agenda are as follows:
• Be clear and unambiguous about the methodology used in the research, always trying to state at least the method of data collection, and the description and size of the sample • If a telephone survey is conducted, the questionnaire must be relatively short, with simply formulated closed-ended questions with a small number of possible answers: - Example: It is methodologically more justified to ask the following question in aa telephone interview “Do you support the dialogue between Belgrade and Priština?” with the possible answers yes, no and do not know/refuse to answer, instead of asking the same question with the options for answers: Yes, if that is a condition for EU membership, Yes, if it leads to..., No, under no conditions. • Questions about complex problems, as well as insufficiently clear topics, are best not included in telephone interviews, but analysed in face-to-face interviews when the opportunity arises. Whenever material and organizational conditions allow, it is recommended to conduct field research.
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A brief history of citizens’ views on the dialogue between Belgrade and Priština. What has (not) changed?
Different dynamics and topics of questionnaires
There were many problems that researchers encountered when making this analysis. In some cases, important questions were not covered by opinion polls for a longer period, which made it impossible to analyse the results as time series. In addition, questions about Kosovo have often been an integral part of other research, on the topics of European integration (EU Delegation research) or foreign policy (CEAS), so it is difficult to do an analysis outside the context of the overall research.
However, the biggest problem the authors encountered in the analysis of public opinion research is that the findings are often incomparable, even when conducted by the same organizations over a long period of time, and there are two main reasons for this. First, the negotiation process between Belgrade and Priština is very dynamic and new topics are often imposed that affect the research agenda. For example, previously mentioned idea of demarcation as one of the modalities for resolving a dispute appeared in 2017 and was included in research after that period. In addition to the fact that there is no data on the opinions of citizens on this topic before it became part of the public discourse, it also influenced the subsequent results where this solution is mentioned as one of the possible issues dealing with the outcomes of the Brussels dialogue. This made the previous trends from the questionnaire regarding some other solutions incomparable, such as the status quo, because they do not measure this variable. Another cause is inconsistency in research issues, which has nothing to do with events in the environment or with the course of the dialogue but is a consequence of research design. Both problems can be solved to some extent, and obstacles prevented, and the analysis that follows below offers some suggestions for that purpose.
One of the standard issues covered by most of the surveys is how much the citizens are informed about the dialogue between Belgrade and Priština and/or the agreements reached. Although particularly important to understand how citizens see the dialogue and its results, different approaches make the answers incomparable. For example, previously presented data from the research conducted by CSDRI (2019) on the level of information about the dialogue was obtained from answers to the question ‘Are you truly informed about the agreements from Brussels signed between Belgrade and Priština?’, with the available answers being ‘not informed’ (62.3%), ‘partly informed (25.1%) and ‘informed’ (12.6%). Although it offers three answers on different levels of information on the Likert scale, which is used in other research and is thus comparable and offers a sufficient level of detail, the qualification ‘truly informed’ can lead respondents to be more modest about how much they are informed. This is evident when compared to a survey conducted by BCSP in 2020, where 36.9% are not informed, 45.5% are only partly informed and 17.9% are informed about the dialogue agreements. Such a large difference between those uninformed about the results of the dialogue cannot be explained by any change in the approach to reporting of the media or
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A brief history of citizens’ views on the dialogue between Belgrade and Priština. What has (not) changed?
actors involved in the dialogue but can rather be seen as a consequence of the methodological approach. On the other hand, this data from the BCSP’s survey was obtained on the basis of question that combined an assessment of the level of information and a statement on the transparency of the dialogue in the offered answers: Yes, I am informed, the process is transparent; I am partly informed, the process is very non-transparent, and I am not informed, the process is completely non-transparent. This could also affect the results as two answers were actually offered within one question, and it can be assumed that there are respondents who may think that the dialogue is not transparent enough, which most think, but that they are nevertheless sufficiently informed.
In relation to this topic, the research on the level of information about the dialogue conducted by OSF in 2017, in two stages, in August and December, and CSDRI in 2019, illustrate another problem. Both surveys have a similarly worded question, OSF, to what extent do you follow topics and events related to Kosovo? and CSDRI how often do you follow the news about Kosovo? However, research conducted by OSF uses a customized 5-response Likert scale from ‘do not follow at all’ ‘follow very carefully’, with a mean value formulated as ‘only main issues / basic events, while CSDRI uses a 4-answer Likert scale with no mean value. It is known that the scale with 4 offered answers forces the respondents to form an opinion on the spot or to reject the answer otherwise, since they do not have a neutral option available. Therefore, it is not surprising that as many as 28% of respondents who opted for the mean value in the 2017 survey chose some other options in the 2019 survey, and the results obtained are quite different and completely incomparable. The difference between 50% and 60% of respondents who do not follow the topic at all or not much in the OSF’s research is especially noticeable, respectively in the surveys from August and December 2017, compared to 55% of respondents from 2019 who follow the topic to a greater or lesser extent.
Suggestions: • The issue of the level of information citizens have is one of the key issues in the research agenda and it is desirable to continue measuring it in the future. • The Likert scale with three offered answers ensures a sufficient level of detail and it can be conducted both by phone and face to face, and it is possible to compare it with a simple calculation to surveys with 5 or 7 answers. • The formulation of the question must be unambiguous, and it would be good to separate the survey into three topics: level of information, i.e., the extent to which respondents follow the news about the dialogue between Belgrade and Priština, which is recognized as the Brussels dialogue; knowledge of agreements arising from the dialogue, and assessment of the transparency of the dialogue. • Avoid using imprecise terms in questions, such as the concept of demarcation, if it is not clearly specified what it means. This is especially important for vague terms that are present in the public sphere at the time of conducting research and polarize society.
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A brief history of citizens’ views on the dialogue between Belgrade and Priština. What has (not) changed?
In addition to the level of information, two topics that are equally present in the research are those about the future of the dialogue and its results, i.e., about what would be an acceptable solution. As mentioned in the previous parts of the analysis, in general, the results show that the citizens of Serbia are in favour of continuing the dialogue, while returning Kosovo to Serbia, or the status quo, which are seen as ideal solutions with some minor variations appearing in time. However, as different solutions were changing on the negotiating agenda, they were included in public opinion polls and this was reflected in the obtained results, which for this reason are often incomparable.
An excellent example to illustrate the challenges related to this topic are two face-to-face surveys conducted, independently of each other, by two different agencies in September and October 2020 for the needs of BCSP. Since this is a minimum period that elapsed between the two surveys, and both were conducted on a representative, stratified sample, the differences in the results cannot be a consequence of a change in opinions but are due to methodological causes. In the first survey, for the question whether the dialogue between Belgrade and Priština should continue, three answers were offered, and the results showed that: the vast majority of respondents (83%) are of the opinion that it should, regardless of the presence of foreign pressure; only 8% believe that negotiations should continue if this increases the chances of Serbia’s membership in the EU, while 9% of respondents believe that negotiations should not continue. The second survey, just a month later with differently formulated answers to the question do you support the dialogue between Kosovo and Serbia, gave the following results: 51% gave an affirmative response, 28% negative, and 21% said they did not know. Although the questions are essentially very similar, in addition to the fact that the formulation of the first issue in the context of Belgrade-Priština negotiations is more status-neutral than the second, where Kosovo-Serbia negotiations are mentioned, the first question additionally emphasizes the need to continue dialogue, whereas the second one transfers the focus to how the dialogue is currently conducted. With different answers offered, which, in the first question, are qualified with different conditions without the option I do not know, and in the second the only options are yes, no, I do not know, this makes the results very different and difficult to interpret. In addition to this approach, the 2017 BCSP’s survey had some new categories in the responses, where one option was also that the dialogue should continue only if it does not lead to the recognition of Kosovo, and another one on condition that it leads to the protection of Serbian interests, which was chosen by almost 40% of respondents.
In addition to the issue of dialogue, it is also very important what outcome of the negotiations between Belgrade and Priština is acceptable to the citizens. With a complete cacophony when it comes to possible solutions, which was also contributed by the unclear positions of Serbia and its goals in the negotiations, the situation is further complicated due to inconsistent issues. This is also the topic with the greatest number of variations in research. They range
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A brief history of citizens’ views on the dialogue between Belgrade and Priština. What has (not) changed?
from very simple questions such as the IEA’s survey on whether citizens would support Kosovo’s independence if it was a condition for EU membership, to questions in CSDRI’s research on participating in a referendum where citizens would vote on seven possible outcomes (from the recognition of Kosovo’s independence to Kosovo’s membership in the UN with the formation of the Association of Serb Majority Municipalities and non- recognition of independence), to BCSP’s survey from 2020, where out of 6 offered options, the most popular one was the return of Kosovo and Metohija to Serbia.
In addition to the fact that all the proposed solutions are very complex and difficult to communicate, there is a frequent need to adjust the questionnaires due to the appearance of some new proposals on the negotiating agenda. Therefore, it is not necessary to mention that it is almost impossible to establish a unique research approach that would enable the comparability of such research. However, what could certainly be ensured is the inclusion of key parameters in the basic research questions, and questionnaires could be supplemented with additional ones if necessary. Some suggestions for this purpose are listed below.
Suggestions: • include basic questions in the research on whether citizens support the dialogue between Belgrade and Priština (yes, no, I do not know / refuse to answer), as well as on reaching a final, legally binding agreement between Serbia and Kosovo (yes, no, I do not know / refuse to answer) • if possible, especially if the research is conducted face-to-face, include additional questions after the basic ones, which would measure support for different options. Example: There should be the dialogue between Belgrade and Priština: regardless of the existing pressure from the EU; only if that will increase chances for EU membership; only if it does not lead to recognition of Kosovo’s independence; only if it ensures protection of Serbian interests; there should not be a dialogue; I do not know. • for questions related to the results of the dialogue, one solution may be to formulate questions at a more general level of outcome, while offering a choice of options based on respondents’ preferences regarding the elements of the agreement. The question could be: What outcome of the negotiations between Belgrade and Priština would be acceptable for you personally? - Leading to Kosovo’s independence: • Within the existing borders • With a division of territories (North of Kosovo a part of Serbia) • With the establishment of CSM • With a special status for monasteries and protection of Serbian cultural heritage
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A brief history of citizens’ views on the dialogue between Belgrade and Priština. What has (not) changed?
• With a quick EU membership for Serbia - Keeping status quo • Without agreement, frozen conflict • With Kosovo’s membership in international organisations • With the establishment of CSM - Enabling the return of Kosovo to Serbia
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A brief history of citizens’ views on the dialogue between Belgrade and Priština. What has (not) changed?
References
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http://www.nspm.rs/istrazivanja-javnog-mnjenja/srbija-%E2%80%93-zima-2014/15-sa- komentarom-djordja-vukadinovica.html 28) Nova srpska politička misao. 2015. „Veliko aprilsko istraživanje NSPM – Obrnula kola niz stranu?” Nova srpska politička misao, 10. maj 2015. Accessed on 25 February 2021. http://www.nspm.rs/istrazivanja-javnog-mnjenja/srbija-april-2015-istrazivanje-javnog- mnjenja.html. 29) Nova srpska politička misao. 2016. „Srbija, leto 2016.” Nova srpska politička misao, 30. avgust 2016. Accessed on 25 February 2021. http://www.nspm.rs/istrazivanja-javnog-mnjenja/srbija- leto-2016.html. 30) Nova srpska politička misao. 2017. „Srbija, avgust 2017.” Nova srpska politička misao, 13. septembar 2017. Accessed on 25 February 2021. http://www.nspm.rs/istrazivanja-javnog- mnjenja/srbija-avgust-2017.html. 31) Nova srpska politička misao. 2018. „Srbija, leto 2018. godine” Nova srpska politička misao, 4. avgust 2018. Accessed on 25 February 2021. http://www.nspm.rs/istrazivanja-javnog- mnjenja/srbija-leto-2018.html. 32) Nova srpska politička misao. 2019. „Srbija, leto 2019 - Šutiranje u praznu mrežu.” Nova srpska politička misao, 9. avgust 2019. Accessed on 25 February 2021. http://www.nspm.rs/istrazivanja- javnog-mnjenja/srbija-leto-2019-sutiranje-u-praznu-mrezu.html. 33) Radio KiM. 2017. „Faktor plus: Dve trećine građana podržava unutrašnji dijalog o Kosovu.” Radio KiM, 10. avgust 2017. Accessed on 25 February 2021. https://www.radiokim.net/vesti/politika/faktor-plus-dve-trecine-gradjana-podrzava-dijalog-o- kosovu.html 34) Sekulić, S. 2018. „Faktor plus: Trećina za upotrebu sile na Kosovu.” Danas, 8. jun 2018. Accessed on 25 February 2021. https://www.danas.rs/politika/faktor-plus-trecina-za-upotrebu- sile-na-kosovu/. 35) Slavujević, Zoran. 2018. „Građani Srbije o Kosovu: Između srca i razuma.” Demostat, 18. oktobar. Accessed on 25 February 2021. https://demostat.rs/sr/vesti/analize/gradani-srbije-o- kosovu-izmedu-srca-i-razuma/524. 36) Tanjug. 2018. „Stavovi građana Srbije o pregovorima sa Prištinom.” RTS, 4. april 2018. Accessed on 25 February 2021. https://www.rts.rs/page/stories/sr/story/125/drustvo/3095485/stavovi- gradjana-srbije-o-pregovorima-sa-pristinom.html. 37) The Delegation of the EU to the Republic of Serbia. 2020. „Strong Support in Favour of EU Accession among Serbian Citizens, Shows Ninamedia Survey of December 2020 for the EU Delegation.” The Delegation of the EU to the Republic of Serbia, januar 2020. Accessed on 25 February 2021. http://europa.rs/strong-support-in-favour-of-eu-accession-among-serbian-citizens- shows-ninamedia-survey-of-december-2020-for-the-eu-delegation/?lang=en 38) TNS Medium Gallup. 2015. „Attitudes of Serbian citizens towards EU integrations – Public opinion poll.” TNS Medium Gallup, oktobar 2015. http://europa.rs/files/02.12.%20istrazivanje%20pp%20e.pdf
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Publisher National Convention on the European Union Working Group for Chapter 35
Authors Anđela Savić, Youth Initiative for Human Rights in Serbia Marko Milosavljević, Youth Initiative for Human Rights in Serbia Milica Radovanović, New Social Initiative
Year 2021
The publication was produced within the project “National Convention on the European Union 2020/2021, Chapter 35: Other Issues – Kosovo” financed by the Embassy of the Kingdom of Norway in Belgrade and the Balkan Trust for Democracy of the German Marshall Fund of the United States. The opinions and views expressed in this publication are those of the authors and do not necessarily reflect the official views of the Embassy of the Kingdom of Norway, Serbia, Balkan Trust for Democracy of the German Marshall Fund of the United States, National Conventions on the European Union or the Institute for Territorial Economic Development.
The efficiency of mechanisms of institutions of Serbia and Kosovo in finding missing persons from the war in Kosovo between 2016 and 2020
Anđela Savić, Youth Initiative for Human Rights in Serbia Marko Milosavljević, Youth Initiative for Human Rights in Serbia Milica Radovanović, New Social Initiative
March 2021
The efficiency of mechanisms of institutions of Serbia and Kosovo in finding missing persons from the war in Kosovo between 2016 and 2020
CONTENTS
INTRODUCTION ...... 1
LEGISLATIVE FRAMEWORKS AND INSTITUTIONS IN CHARGE OF SOLVING THE ISSUES ABOUT MISSING PERSONS ...... 3 Legal framework – Serbia ...... 3 Institutions in charge of the issues of missing persons in Serbia ...... 5 Legal framework – Kosovo ...... 6 Institutions in charge of the issues of missing persons in Kosovo ...... 8
OBTAINING DATA ON THE MISSING - ARCHIVES ...... 15 Serbia ...... 15 Kosovo ...... 17
WAR CRIMES TRIALS AND THE SEARCH FOR THE MISSING ...... 19 Serbia ...... 19 Kosovo ...... 21
ACTIVITIES OF STATE AUTHORITIES ON REDUCING THE NUMBER OF MISSING PERSONS AND DISCOVERING MASS GRAVES IN SERBIA AND KOSOVO ...... 24 Serbia ...... 24 Kosovo ...... 27
FINDINGS OF INTERNATIONAL INSTITUTIONS ON SOLVING THE ISSUES OF THE MISSING PERSONS (2016-2020) ...... 30 Serbia ...... 30 Kosovo ...... 32
RECOMMENDATIONS ...... 38
BIBLIOGRAPHY ...... 40
The efficiency of mechanisms of institutions of Serbia and Kosovo in finding missing persons from the war in Kosovo between 2016 and 2020
ABBREVIATIONS
EC European Commission EU European Union EULEX European Union Rule of Law Mission in Kosovo HLC Humanitarian Law Centre MPG Missing Persons Group HRAP Human Rights Advisory Panel KFOR NATO Mission in Kosovo KiM Kosovo and Metohija ICRC International Committee of the Red Cross ICMP International Commission on Missing Persons ICTY International Criminal Tribunal for the former Yugoslavia MD Ministry of Defence Mtbr. YA Motorized Brigade of the Yugoslav Army MI Ministry of Interior NATO North Atlantic Treaty Organization OSCE Organization for Security and Co-operation in Europe KLA Kosovo Liberation Army RECOM Regional commission for the establishment of facts about war crimes and other serious violations of human rights committed in the former Yugoslavia from January 1, 1991 until December 31, 2001 USA United States of America SFRY Socialist Federal Republic of Yugoslavia FRY Federal Republic of Yugoslavia SPRK Special Prosecution Office of Kosovo KSC Kosovo Specialist Chambers UNDP United Nations Development Programme UNMIK United Nations Interim Administration Mission in Kosovo
The efficiency of mechanisms of institutions of Serbia and Kosovo in finding missing persons from the war in Kosovo between 2016 and 2020
INTRODUCTION
After September 2020, when the Washington Agreement was reached, and the EU-facilitated negotiations between Serbia and Kosovo in Brussels renewed, resolving enforced disappearances from the Kosovo conflict, as well as the post-conflict period (1998-2000), was after many years, at least declaratively, very high on the political agendas of the executive authorities of Serbia and Kosovo.
According to the International Committee of the Red Cross (ICRC), more than 6,000 cases of missing persons during the war in Kosovo were registered after the war, at the request of family members. In the meantime, the fate of the majority has been clarified, but nothing is known about more than 1,600 people yet.
On the occasion of the International Day of the Disappeared at the end of August 2020, the Association of Kosmet Victims from Belgrade and the Missing Persons Resource Centre from Priština organized press conferences in Belgrade and in Priština entitled “The Missing Must not Remain a Number – They Have Names”. At both press conferences in Belgrade and Priština, Associations of families of missing Serbs and Albanians stated that both countries must open war archives and reveal information about people who are still listed as missing in the war in Kosovo (1998-1999). “There is no progress in any society as long as there are secret tombs and unexcavated bones” said Nataša Šćepanović, president of the Association of Kosmet Victims.
Having in mind the appeals of the families of the missing and civil society to address the issue of the missing from a humanitarian perspective, as well as a frequent abuse of the issue for daily political purposes, the Youth Initiative for Human Rights in Serbia (YIHR) and the New Social Initiative (NSI), with support and coordination of the Working Group for Chapter 35 of the National Convention on the EU in Serbia, mapped the problem of inconsistent data on missing persons available to the Government of Serbia and the Government of Kosovo, as well as insufficiently developed cooperation between institutions of the two governments that would lead to faster and more efficient finding of missing persons.
As a result, this is an analysis of the efficiency of mechanisms for resolving the issue of missing persons (legislative solutions, collecting data on missing persons - archives, establishing facts about missing persons through war crimes trials, grave exhumations) available to Serbian and Kosovo institutions in the period from 1 January 2016 to 31 December 2020. Finally, in addition to the analysis of the efficiency of mechanisms in both countries, this document also contains findings of international state and non-state organizations, data on forms of cooperation between Serbia and Kosovo in resolving the issue of missing persons, as well as recommendations for the work of both governments, which can, in our opinion, lead to a more efficient and humane solution to the issue of the missing than it has been the case so far.
1 The efficiency of mechanisms of institutions of Serbia and Kosovo in finding missing persons from the war in Kosovo between 2016 and 2020
2 The efficiency of mechanisms of institutions of Serbia and Kosovo in finding missing persons from the war in Kosovo between 2016 and 2020
LEGISLATIVE FRAMEWORKS AND INSTITUTIONS IN CHARGE OF SOLVING THE ISSUES ABOUT MISSING PERSONS
Legal framework – Serbia
The Republic of Serbia does not have a single law on missing persons that would systematically and comprehensively regulate the competences of state bodies and their communication, define the concept of enforced disappearance, missing person and victim, but also the issue of reparations, i.e., compensation for missing persons’ families. At the same time, Serbia has signed and ratified several international documents dealing with the issue of missing persons and thus committed to resolving the issue of their disappearance. Serbian legislation also contains provisions relevant to resolving the issue of missing persons in a number of different laws.
The Republic of Serbia has ratified the Geneva Convention relative to the Protection of Civilian Persons in Time of War, i.e., the Fourth Geneva Convention of 1949 and the Additional Protocol 1 to the Geneva Conventions of 1977. They emphasize the right of families to know the fate of their relatives (Article 32 of the Protocol), but also impose the obligation of the parties to the conflict to search for the persons who have been reported missing by an adverse party (Article 33 of the Protocol).
Serbia also ratified the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms by law. Article 3 of the European Convention stipulates the prohibition of torture, inhuman or degrading treatment or punishment, and it has been developed through the practice of the European Court of Human Rights, which subsumes enforced disappearances under this article.1
Article 7 of the International Covenant on Civil and Political Rights, ratified by Serbia in 1971, which stipulates that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment, is also important in relation to the prohibition of torture and inhuman treatment. As in the case of the European Convention, the International Covenant is reaffirmed through the practice of the United Nations Human Rights Committee.
In 2011, the Republic of Serbia ratified and incorporated into its legal system another United Nations convention - the Convention for the Protection of All Persons from
1 Varnava i ostali protiv Turske, presuda Evropskog suda za ljudska prava od 18. septembra 2009. godine: https://hudoc.echr.coe.int/eng#{%22display%22:[%220%22],%22languageisocode%22:[%22BOS%22],%22appno%22:[%2216064 /90%22,%2216065/90%22,%2216066/90%22,%2216068/90%22,%2216069/90%22,%2216070/90%22,%2216071/90%22,%22160 72/90%22,%2216073/90%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22],%22itemid%22:[%22001- 117975%22]}
3 The efficiency of mechanisms of institutions of Serbia and Kosovo in finding missing persons from the war in Kosovo between 2016 and 2020
Enforced Disappearance. Article 1 of the Convention states that no one shall be subjected to enforced disappearance, and that even a state of war, the threat of war, or internal political instability are not a justification for enforced disappearance. Article 2 is particularly important because it explains that “enforced disappearance” is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law. Then, Article 24 of the Convention explains the term “victim” and states that it means the disappeared person and any individual who has suffered harm as the direct result of an enforced disappearance. It is further stated that each State Party shall ensure in its legal system the right to obtain reparation and adequate compensation - material, moral, etc.
In 2014, Angela Merkel, the chancellor of Germany, launched the Berlin Process, a diplomatic initiative that seeks to improve regional cooperation between the countries of the Western Balkans, but also the process of their accession to the European Union. Within the Berlin Process, summits of the countries of the Western Balkans are organized on an annual basis. At the summit in 2018 in London, the Joint Declaration on Missing Persons was signed, and a few months later, the Framework Plan to Address the Issue of Persons Missing from Conflicts on the Territory of the Former Yugoslavia.2 The declaration emphasizes the need to intensify work on finding and identifying missing persons, depoliticize the process, and actively engage national institutions. The importance of opening the archives is also emphasized, and the parts concerning the families of missing persons are of special importance. Family members of the missing persons must be able to exercise their rights in accordance with international and national laws, and their active participation in the search process is crucial. The Framework Plan builds on the Declaration and emphasizes the need for the exchange of information between the signatory countries, greater involvement of families in the search process, but also the joint celebration of August 30, the International Day of the Disappeared.
In April 2020, Miroslav Lajčak was appointed EU Special Representative for the Belgrade-Priština Dialogue, a diplomat who was expected to restart negotiations interrupted by the tax increase that Kosovo introduced on goods from Serbia in November 2018. Negotiations have been launched, and the issue of missing persons has been in focus.3 Accelerating the work on solving the problem of missing persons is a point that was included in the Washington Agreement, which was signed in September 2020 by the
2 Treći izveštaj o sprovođenju nacionalne strategije za procesuiranje ratnih zločina, Fond za humanitarno pravo, Beograd, decembar 2018, p. 43-44: http://www.hlc-rdc.org/wp- content/uploads/2018/12/Treci_izvestaj_o_sprovodjenju_Nacionalne_strategije_za_procesuiranje_ratnih_zlocina.pdf; 3 Lajčak: Lideri Srbije i Kosova postigli pun napredak u pregovorima, N1, 07. septembar 2020: https://rs.n1info.com/vesti/a637321- miroslav-lajcak-dijalog-beograd-Priština-brisel/;
4 The efficiency of mechanisms of institutions of Serbia and Kosovo in finding missing persons from the war in Kosovo between 2016 and 2020
President of Serbia Aleksandar Vučić, the Prime Minister of Kosovo Avdullah Hoti, and the U.S. President Donald Trump.
In the Article 25 of the Constitution of the Republic of Serbia, Serbian Legislation prescribes the inviolability of physical and mental integrity, as well as the fact that nobody can be subjected to torture, inhuman or degrading treatment or punishment, while Article 35 defines the right to rehabilitation and compensation of damage, material or non- material, inflicted on him by unlawful or irregular work of a state body, entities exercising public powers, bodies of the autonomous province or local self-government.
The Law of Contract and Torts does not recognize the right of relatives to compensation for enforced disappearances, but exclusively for the death of a close person. Accordingly, Article 200 states that the court may award monetary compensation for physical or mental pain suffered due to reduction of life activities, for becoming disfigured, for offended reputation, honour, freedom, or rights of personality, for death of a close person, as well as for fear suffered.
The Law on the Rights of Veterans, War Invalids, Civilian War Invalids and Members of Their Families, passed in March 2020, recognizes missing persons as civilian victims of war in Article 23, but does not state whether it is necessary for families to declare their missing relatives dead in non-litigious proceedings, as was previously the case.
As domestic law has so far not provided damage compensation for enforced disappearances, and because, despite binding judgments of the European Court of Human Rights and the United Nations Human Rights Committee (UN), cases of enforced disappearances have remained without positive outcomes, the families of the missing persons were forced to seek justice before international courts.
Institutions in charge of the issues of missing persons in Serbia
The Commission for Missing Persons of the Government of the Republic of Serbia was established with the aim of resolving the issue of missing persons in connection with the wars that took place in the territory of the former Yugoslavia during the 1990s. The Commission collects data on the missing and communicates them to the public, fulfills the obligations of international agreements, coordinates the work of the competent authorities and cooperates with the families of the missing and their associations. The Commission for Missing Persons consists of the President and 11 members and the Expert Service. The President of the Commission, since its establishment in 2006, has been Veljko Odalović, Secretary General of the Ministry of Foreign Affairs, and the members are representatives of the Office for the War Crimes Prosecutor, Ministry of Foreign Affairs, Ministry of Defence, Ministry of Interior, Ministry of State Administration and
5 The efficiency of mechanisms of institutions of Serbia and Kosovo in finding missing persons from the war in Kosovo between 2016 and 2020
Local Self-Government, Ministry of Justice, Office for Kosovo and Metohija, Commissariat for Refugees and Migration, Serbian Red Cross, Ministry of Finance and the Ministry of Labour, Employment, Veteran and Social Affairs.4
Professional assistance is provided to the Commission for Missing Persons by the Commissariat for Refugees and Migration of the Republic of Serbia, within which a special Department for Missing Persons has been established, which performs administrative and technical tasks in the process of searching for missing persons during armed conflicts. The Department for Missing Persons keeps a unique record of missing persons and exhumed remains (identified and unidentified), takes care of the costs of exhumation, identification, and transport, allocates funds to associations of families of missing persons and cooperates with other countries and international organizations. Two more specific units have been formed within the Department for Missing Persons - the Group for Missing Persons in the Autonomous Province of Kosovo and Metohija (KiM) and the Group for Missing Persons in the Territory of the Former Socialist Federal Republic of Yugoslavia (SFRY).5
The Commission for Missing Persons has a representative in the Working Group on Missing and Kidnapped Persons in Kosovo and Metohija established in 2004 in the context of UN Security Council Resolution 1244. The working group consists of four representatives of each Belgrade and Priština, it is chaired by ICRC, and observers include representatives of the EU, NATO, OSCE, International Commission on Missing Persons (ICMP) and associations of families of the missing. The working group cooperates with UNMIK, EULEX and institutions in Kosovo.
In 2016, the Committee for Kosovo and Metohija of the Assembly of the Republic of Serbia, in charge of proposing laws and other acts and monitoring the implementation of resolutions and declarations important for the Kosovo issue, established the Working Group to gather facts and evidence in clarifying crimes against Serbs and other national communities in Kosovo and Metohija. The working group is chaired by the MP of the Serbian Progressive Party (SNS), Milovan Drecun, president of the Committee for Kosovo and Metohija, and its members are also representatives of the Commission for Missing Persons, Office for Kosovo and Metohija, Office of the War Crimes Prosecutor and Ministry of Interior. Legal framework – Kosovo
4 Izveštaj o radu Komisije za nestala lica u periodu od 1. januara do 31. decembra 2019. godine, Beograd, februar 2020, p. 3: http://www.kznl.gov.rs/latinica/dokumenta.php; 5 Informator o radu, Komesarijat za izbeglice i migracije, januar 2021, str. 10-12: https://kirs.gov.rs/media/uploads/INFORMATOR%20JANUAR%2029-01-2021-converted.pdf;
6 The efficiency of mechanisms of institutions of Serbia and Kosovo in finding missing persons from the war in Kosovo between 2016 and 2020
Article 22 of the Constitution of Kosovo has taken over some of the most important international instruments for the protection of human rights, including the European Convention on Human Rights, which is directly applicable in Kosovo and has precedence, in case of conflict, over all legal provisions and other acts of Kosovo’s public institutions. Consequently, Kosovo is also obliged to apply the case law of the European Court of Human Rights. In accordance with this Convention, families of the missing have the right to information about the fate and residence of their loved ones, which derives from Articles 2, 3, 5 and 8 of the Convention. The Kosovo authorities are therefore obliged to make all reasonable efforts to provide them with this information.
In September 2011, the Law on Missing Persons entered into force in Kosovo. This law aims to protect the rights and interests of the missing and their families, in particular the right of families to be informed of the fate of missing persons who disappeared between 1 January 1998 and 31 December 2000, as a result of the armed conflict in Kosovo. Everyone has the right to know the fate of the missing family member(s), including the place where they were found or, if they died, the circumstances of their death, the place of burial, as well as the right to retrieve their remains. In addition, the law establishes the competencies of the Commission for Missing Persons, which is defined in Article 8 of the Law as “a governmental body which heads, supervises and coordinates the activities with local and international institutions and other stakeholders with regards to clarification of the fate of missing persons, regardless their ethnic background, religion or military or civil status”.
Article 13 stipulates that the Government’s Commission will establish and maintain a Central Register of Missing Persons - the main database of data collected from all available sources that can be used to find their identity, place, and circumstances of disappearance and to exchange them with other institutions in Kosovo when needed for the purpose of searching, identifying missing persons or finding the remains. The law also contains provisions on who has the right to get the data from the central register and how personal data will be processed and treated.
In July 2012, the Government of Kosovo adopted the Regulation on the Work of the Governmental Commission on Missing Persons, which defines the responsibilities, scope, rules and procedures of this commission, as well as the organization of the administrative unit it includes.
The Law on Forensic Medicine, which entered into force in April 2016, stipulates the establishment of the Institute of Forensic Medicine under the auspices of the Ministry of Justice of Kosovo. Article 15 of this law stipulates, inter alia, that the Institute is responsible for “searching, locating and exhuming, as well as determining the fate, identifying and handing over the remains of missing persons” associated with the armed
7 The efficiency of mechanisms of institutions of Serbia and Kosovo in finding missing persons from the war in Kosovo between 2016 and 2020
conflict in Kosovo. In addition, the Institute is responsible for “maintaining contacts with the families of the missing and cooperating with local and foreign organizations and institutions, which are involved in the process of clarifying the fate of missing persons.”
The Law on the Status and the Rights of the Martyrs, Invalids, Veterans, Members of Kosova Liberation Army, Civilian Victims of War and their Families, adopted in December 2011, includes the rights and benefits for close family members of the missing in the period between 27 February 1998 and 20 June 1999. The immediate family of the missing person exercises all rights as well as the immediate family members of the civilian victim of war6 determined by this law, while the immediate family of the missing member of the Kosovo Liberation Army (KLA) enjoys additional rights. Thus, according to Article 13 of the Law, members of the immediate family of a missing person are entitled to a family “civil war pension”, health care, primary and secondary, free services in public health institutions, exemption from property tax if the immediate family is in difficult material situation, cheap and reduced electricity consumption tariff, if the immediate family is facing a difficult economic situation.
In addition, according to Article 6 of the Law, immediate family of civilian victims of war (with whom members of the immediate family of missing persons are made equal according to this law) exercise the right to housing care if they are in a difficult financial situation. The law stipulates that the Government of Kosovo will make efforts to provide family care by building collective buildings for social housing. However, the families of missing KLA members who do not have their housing issue resolved have an advantage in exercising this right. On the other hand, additional benefits are provided for family members of missing KLA members.
The costs of funeral, transport and military honours are reimbursed by the Ministry of Labour and Social Welfare and military honours after the procedure of exhumation and identification of a missing member of the KLA. In addition to primary and secondary, tertiary health care in public health institutions, scholarships for secondary and university education, priority for enrolment and admission in public educational institutions, free accommodation in student dormitories, exemption from administrative payments at public universities are also provided for this category, as well as exemption from payment of court, administrative and public fees, free accommodation in nursing homes, exemption from payment in public city and intercity transportation (Article 8).
Institutions in charge of the issues of missing persons in Kosovo
6 According to this Law, Civilian Victim of Was is the person who has died or got wounded by the “enemy forces”, and died later in the period between 27 February 1998 and 20 June 1999, as well as the persons who have suffered as a consequence of the war within three years after the war ended from mines and other explosive devices left out from the war.
8 The efficiency of mechanisms of institutions of Serbia and Kosovo in finding missing persons from the war in Kosovo between 2016 and 2020
The Commission for Missing Persons of the Government of Kosovo is a body that, in accordance with its legal powers, heads, supervises and coordinates activities with local and international institutions and other stakeholders with regards to clarification of the fate of missing persons, regardless their ethnic background, religion or military or civil status.7 The Law on Missing Persons envisages the structure of the commission consisting of representatives of the Prime Minister’s Office, the Institute of Forensic Medicine, ministries, as well as associations of families of the missing. The chairman of the Commission and the deputy are appointed by the Prime Minister of Kosovo, and the deputy should be from the minority communities in Kosovo.
A request for search is submitted to the Commission, which decides on it and informs the families about the results. The search for a missing person is considered complete when the missing person is found or when his or her remains are identified. In addition, the Commission covers funeral expenses following the identification of the remains of missing persons, protects the rights and interests of missing persons and their family members, coordinates data collection activities, establishes a Central Register of Missing Persons and implements awareness raising initiatives and support related to missing persons. The Commission informs the family members of the missing persons and cooperates with their associations, but also informs the public about its findings.8 The Commission carries out its activities in full cooperation with local and international institutions and organizations, the Public Prosecutor’s Office, courts, and other bodies authorized by law to collect data on missing persons. It is also responsible for cooperation with relevant institutions of countries in the region.9
The Institute of Forensic Medicine is a public institution under the auspices of the Ministry of Justice of Kosovo, responsible for providing expert services in the field of forensic medicine and forensic investigations of death, including the exhumation of remains related to the armed conflict in Kosovo. Thus, according to Article 15 of the Law on Forensic Medicine, the Institute of Forensic Medicine is also responsible for “searching, locating and exhuming, as well as determining the fate, identifying and handing over the remains of missing persons” associated with the armed conflict in Kosovo, as well as “maintaining contacts with the families of the missing and cooperating with local and foreign organizations and institutions, which are involved in the process of clarifying the fate of the missing persons.”
The European Union Rule of Law Mission in Kosovo (EULEX) plays a significant role in the work of the Institute of Forensic Medicine. Article 18 of the Law on Forensic Medicine stipulates that EULEX experts will work together with the Kosovo authorities
7 Zakon br. 04/L-23 o nestalim licima, član 8: https://gzk.rks-gov.net/ActDetail.aspx?ActID=2765; 8 Zakon br. 04/L-23 o nestalim licima, član 6. tačka 5. i član 10: https://gzk.rks-gov.net/ActDetail.aspx?ActID=2765; 9 Zakon br. 04/L-23 o nestalim licima, član 11: https://gzk.rks-gov.net/ActDetail.aspx?ActID=2765;
9 The efficiency of mechanisms of institutions of Serbia and Kosovo in finding missing persons from the war in Kosovo between 2016 and 2020
to increase their capacity to ensure that the Institute of Forensic Medicine has “sufficiently trained experts capable of providing forensic expertise, thus meeting international standards and best European practices”.
EULEX staff is incorporated into the Institute of Forensic Medicine, the Deputy Director is from the EULEX mission, as well as staff assisting the Institute in forensic anthropology and archaeology, forensic pathology, and crime scene investigation. The Institute maintains contact with the families of the missing and is responsible for locating, exhuming, identifying, and determining the fate of the missing, as well as for handing over human remains. After obtaining information on potential graves, and after confirming their accuracy, EULEX experts make an investigative report stating the reasons for excavations at specific sites and the expected results. That report is further forwarded to the prosecutor, who evaluates the information and possibly makes a decision on conducting excavations at a certain location. Following the prosecutor’s order, EULEX is allowed to work in the field.10
The Law on the Special Prosecution Office of the Republic of Kosovo, adopted in June 2008, established the Special Prosecution Office of Kosovo (SPRK) as a permanent, specialized prosecutorial office within the Office of the State Prosecutor. Article 5 of the Law stipulates that the Prosecution has, inter alia, the exclusive competence to investigate and prosecute crimes against humanity, war crimes in serious violation of the Geneva Conventions, war crimes in serious violations of laws and customs applicable in international armed conflict, war crimes in serious violation of Article 3 Common to the Geneva Convention and war crimes in serious violation of laws and customs applicable in armed conflict not of an international character. Therefore, it is responsible for investigating cases of enforced disappearances.
With the arrival of the EULEX mission in Kosovo, the investigation and prosecution of criminal offenses, which fall under the exclusive competence of SPRK, fell under the jurisdiction of the prosecutors of this mission.11 With the change of mandate of the EULEX mission in Kosovo in 2014, the process of transferring authority from EULEX to local institutions began. In May that year, jurisdiction to obtain court orders for the exhumation of missing persons on the territory of Kosovo was transferred from EULEX to SPRK, and in 2018 it had exclusive jurisdiction to investigate and prosecute missing persons. The Special Prosecution Office is in charge of every exhumation of missing persons in Kosovo.
10 EULEX Kosovo/Institute of Forensic Medicine (IFM): http://www.shortcutmedia.net/portfolio/eulex-kosovo-institute-of- forensic-medicine-ifm/; 11 Zakon br. 03/L-053 o nadležnostima, odabiru i raspodeli sudskih predmeta i tužiocima EULEX-a misije na Kosovu, član 8: https://gzk.rks-gov.net/ActDetail.aspx?ActID=2527;
10 The efficiency of mechanisms of institutions of Serbia and Kosovo in finding missing persons from the war in Kosovo between 2016 and 2020
EULEX has handed over about 900 cases of war crimes and other violations of international humanitarian law to SPRK, as well as nearly 2,000 cases related to abduction or disappearance of persons during and after the armed conflict in Kosovo.12
The Committee for Human Rights, Gender Equality, Missing Persons and Petitions is a functional commission of the Kosovo Assembly, which includes, among other things, consideration of all issues related to clarifying the fate of missing persons, researching facts and data related to missing persons and recommendations to the Assembly on the measures to be taken regarding the status and fate of the missing. The Committee is also responsible for liaising with international human rights organizations in order to exert pressure to clarify the facts regarding the fate of missing persons; contacting and informing the families of missing persons, considering and initiating legislation within its scope, but also considering petitions submitted to the Assembly.13
The Kosovo Police also has a role in the process of resolving the issue of missing persons. The War Crimes Investigation Unit, i.e., the Sector for Missing Persons, is part of the Serious Crime Directorate in the Kosovo Police Investigation Department and it is a specialized police unit authorized to investigate these crimes after the case is handed over by the EULEX mission. Upon the order of the SPRK, the police investigate the cases of missing persons, and during the excavation works they are responsible for securing the locations and other necessary security arrangements.
In addition, the issue of enforced disappearances in Kosovo will be addressed, among other things, by the Specialist Chambers and the Specialist Prosecutor’s Office in The Hague.
The Kosovo Specialist Chambers and the Specialist Prosecutor’s Office (Special Court) were established in accordance with an international agreement ratified by the Assembly of Kosovo, the Amendment of the Constitution and the Law on Specialist Chambers and Specialist Prosecutor’s Office of Kosovo in 2015. These bodies have jurisdiction over crimes against humanity, war crimes and other crimes under Kosovo law, all in connection with the statements in the Report of the Parliamentary Assembly of the Council of Europe of January 7, 2011. The headquarters of the KSC & SPO are in the
12 Strategija ratnih zločina, Tužilački savet Kosova, Državno tužilaštvo, Priština, februar 2019: https://prokuroria- rks.org/assets/cms/uploads/files/Dokumente%20Publikime/KPK/Dokumente%20Strategjike/STRATEGIJA%20RATNIH%20ZLO CINA.pdf; 13 Poslovnik Skupštine Kosova, Priština, april 2010, str. 51: https://www.assembly- kosova.org/Uploads/Data/Files/6/Rr_K_RK_29_04_2010_3_XRyC2ppcHm.pdf?__cf_chl_jschl_tk__=ae9aab80117496651694f7d7 302aaa22cf1e6a57-1614668585-0- AafMPF11dOpqahiIEImn_4XtCfrwgm_uwVSeUJ3dnY9SmxeHXi45mv_JUEOl6QWlwQ2Je0NqJd2ulMQrUJHcDPLF1FZZW_T UhGbAEv97VdVLlXxvv7T7w0dsTiBsHsmDoTh0SzPG5ht_WxqI9unIod35fOjt68PmFqcrmlBd35Oax3ggKIF2AwozYC2gH4ws1 Cwe1Tatrp_FohEwBZtx37rTjpfWbLOaWb3svuQAReZiikok4mUXRLHALunMQC_gmDo9_NbmPURfd40R65PqpJUneSHDV6U mzZwOCYC0VClY5Z9UMvZ6AHhgGDGz5jVfaL68CsO3aKTCs5CAV3kpTxsVUMpzs5OBaEZ- q9SMEXlXJ0PV9ALmWvDSDQvEafN-ng;
11 The efficiency of mechanisms of institutions of Serbia and Kosovo in finding missing persons from the war in Kosovo between 2016 and 2020
Hague. The staff is international, as are the judges, the specialized prosecutor, and the secretary. They are of a temporary nature with a specific mandate and jurisdiction in proceedings related to crimes against humanity, war crimes and other crimes under Kosovo law, initiated or committed in Kosovo between 1 January 1998 and 31 December 2000 by citizens of Kosovo or the Federal Republic of Yugoslavia (FRY), or against them. Crimes against humanity where investigation and prosecution are within the mandate of this court include enforced disappearances of persons undertaken as part of a wider or systematic attack directed against the civilian population, with knowledge of the attack.14
The first two indictments for war crimes and crimes against humanity were filed and confirmed during 2020, and in one of them, the accused are charged with enforced disappearances, among other actions. Former President of Kosovo Hashim Thaçi, former President of the Assembly of Kosovo Kadri Veseli, Rexhep Selimi and Jakup Krasniqi are accused that them “and other members of the joint criminal enterprise shared the common purpose to gain and exercise control over all of Kosovo by means including unlawfully intimidating, mistreating, committing violence against those deemed to be opponents” between March 1998 and September 1999 at the latest15. According to the indictment, “this common purpose encompassed the crimes of persecution, imprisonment, illegal or arbitrary arrest and detention, other inhumane acts, cruel treatment, torture, murder, and enforced disappearance of persons”.16
14 Zakon br. 05/L -053 o Specijalizovanim većima i Specijalizovanom tužilaštvu, član 13i: https://www.scp- ks.org/sites/default/files/public/05-l-053_s_0.pdf; 15 Optužnica protiv Tačija, Veseljija, Seljimija i Krasnićija, p. 4-5: https://repository.scp- ks.org/LW/Published/Filing/0b1ec6e98037f0e4/PRILOG%203%20uz%20podnesak%20kojim%20se%20dostavljaju%20korigovane %20i%20javne%20redigovane%20verzije%20potvr%C4%91ene%20optu%C5%BEnice%20i%20prate%C4%87ih%20zahteva.pdf; 16 Ibid. p. 10;
12 The efficiency of mechanisms of institutions of Serbia and Kosovo in finding missing persons from the war in Kosovo between 2016 and 2020
Chart 1. ICMP: Support in the process of finding and identifying missing persons – resolving deadlocks17
17 Vodič za porodice nestalih lica na Kosovu: Institucije, process i prava porodica, Međunarodna komisija za nestala lica (ICMP), 2016, page 13: https://www.icmp.int/wp-content/uploads/2016/12/Serbian-Guide-final-WEB.pdf;
13 The efficiency of mechanisms of institutions of Serbia and Kosovo in finding missing persons from the war in Kosovo between 2016 and 2020
Chart 2. ICMP: Support in the process of finding and identifying missing persons – resolving deadlocks18
18 Vodič za porodice nestalih lica na Kosovu: Institucije, proces i prava porodica, Međunarodna komisija za nestala lica (ICMP), 2016, page 15: https://www.icmp.int/wp-content/uploads/2016/12/Serbian-Guide-final-WEB.pdf;
14 The efficiency of mechanisms of institutions of Serbia and Kosovo in finding missing persons from the war in Kosovo between 2016 and 2020
OBTAINING DATA ON THE MISSING - ARCHIVES
Serbia
After the war in Kosovo, 6,064 people were listed as missing. At the moment, another 1,642 people are searched for19, including persons of Albanian and Serbian nationality, but also national minorities living in Kosovo. In order to resolve the fate of persons still listed as missing, it is necessary to open and investigate local and international archives.
The opening of local archives primarily refers to the archives of the Ministry of Interior (MUP) of the Republic of Serbia and the Ministry of Defence (MoD) of the Republic of Serbia. The documents of the Ministry of Interior and the Ministry of Defence contain information on the operations carried out by the Yugoslav Army and the police during the war in Kosovo, but also on the clean-up of the terrain that occurred after the war. As noted in the Humanitarian Law Centre’s (HLC) Policy Paper: Accounting for Missing Persons from the Armed Conflicts of the 1990s in the Former Yugoslavia, MUP and MoD usually do not act upon requests for access to information of public importance, justifying that by the confidentiality of data or lack of possession.20 Former Minister of Defence Bratislav Gašić, and today the director of the Security Information Agency (BIA), declared the archives of the 37th Motorized Brigade of the Yugoslav Army (Mtbr. YA) a state secret in 2014.21 37th Mtbr. YA actively participated in crimes committed in the Drenica area where 180 KLA members and more than 1,400 civilians died in 1999. Bodies for the removal of which the Unit for Sanitation of Terrain of the 37th Mtbr. YA was in charge were found in 2013 in a mass grave in Rudnica.22
In addition to the archives of the Ministry of Interior and the Ministry of Defence, it is necessary to investigate the archives of public utility companies, cemeteries, health centres and public services that could participate in the transfer and burial of the remains.
At the online discussion The Contribution of the Government of Serbia to Resolving the Issue of Missing Persons from the Armed Conflict in Kosovo 1998-2000, Veljko Odalović, President of the Commission for Missing Persons of the Government of the Republic of Serbia, pointed out that Serbia handed over 2,417 documents to ICRC and
19 Nacionalni konvent o EU, Snimak online diskusije Doprinos Vlade Srbije rešavanju pitanja nestalih iz oružanog sukoba na Kosovu 1998 – 2000, 19. januar 2021: https://www.youtube.com/watch?v=3dsUiTTp7Xw; 20 Predlog praktične politike: Potraga za licima nestalim tokom oružanih sukoba na teritoriji bivše Jugoslavije tokom 1990-ih godina, Fond za humanitarno pravo, Beograd, jun 2018, str. 21: http://www.hlc-rdc.org/wp- content/uploads/2018/07/Predlog_prakticne_politike_Potraga_za_nestalima_SRP_stampano_ff_13.07.2018.pdf; 21 FHP: Gašić arhivu 37. motorizovane brigade proglasio tajnom, Miloš Teodorović, Radio Slobodna Evropa, 12. jun 2015: https://www.slobodnaevropa.org/a/fhp-gasic-arhivu-37-motorizovane-brigade-proglasio-tajnim/27068479.html; 22 Dosije: Rudnica, Fond za humanitarno pravo, Beograd, januar 2015, str. 40: http://www.hlc-rdc.org/wp- content/uploads/2015/01/Dosije_Rudnica_sr.pdf;
15 The efficiency of mechanisms of institutions of Serbia and Kosovo in finding missing persons from the war in Kosovo between 2016 and 2020
the delegation from Priština from various archives of the army, police and public utilities, that include drawings, maps, reports and statements. On that occasion, Odalović also mentioned the cooperation with the Kosovo Specialist Chamber (KSC) and SPO, which received the data on illegal camps for the needs of the indictment against Thaçi and others.
According to Article 7 of the Law on Organization and Competences of State Bodies in War Crimes Proceedings, state bodies and organizations are obliged, upon request of the War Crimes Prosecutor or the War Crimes Investigation Service, to submit evidence in their possession or otherwise communicate information that may assist in the identification of the perpetrators of war crimes.
In order to more efficiently search for missing persons, it is necessary to open the archives of international organizations and institutions that were present in Kosovo during, but also after the war. This applies primarily to the archives and documents of KFOR, UNMIK, EULEX, OSCE and ICTY. For example. As an example, Ivan Jovanović from UNDP states that, when killings and kidnappings by KLA took place after the withdrawal of the army and police from Kosovo, KFOR members often buried bodies and recorded events. Such documentation could be found in the archives of the country of a particular KFOR contingent. The Republic of Serbia seeks to obtain data from these archives, through ICRC, which could help identify sites where bodies are buried or identify remains, which is supported by UNDP, which has organized, among other things, a meeting of representatives of the Commission on Missing Persons of the Government of the Republic of Serbia and ambassadors of countries that may possess such documentation.
According to Jovanović, a meeting between the ambassadors and the president of the Commission for Missing Persons, Veljko Odalović, was held at the end of October last year. About 20 embassies were invited, and representatives of about 15 countries were present. The meeting was attended by EU countries (at that time including Great Britain), Canada, United States of America (USA) and international organizations - UNDP, EU, Council of Europe, OSCE, as well as ICRC, because requests and answers for searching archives go exclusively through them. According to Jovanovic, representatives of these countries and international organizations meet periodically within the informal group of representatives of embassies, most often ambassadors, which was first called the Group of Friends of the Prosecutor of the Mechanism, and later they used the name Group of Friends of Transitional Justice.
Finally, it is important to point out that the term “archives” does not necessarily refer to documents and data sorted in boxes and arranged in library-like rooms. The archives are also in the memories of people who witnessed or participated in the events. Accordingly, “opening the archives” does not only mean opening the boxes in which the documents
16 The efficiency of mechanisms of institutions of Serbia and Kosovo in finding missing persons from the war in Kosovo between 2016 and 2020
are stored, but also an invitation to those who have information to talk about them and share them with the relevant institutions.
Kosovo
As for the archives in Kosovo, it is important to note that the Serbian police was the only authority to which Kosovo Albanians could report enforced disappearances until 10 June 1999, when UNMIK took over responsibility for the administration of Kosovo. In the immediate aftermath of the war, UNMIK was unable to establish a rule of law across Kosovo, and until November 1999 had insufficient police officers to establish a law enforcement body to investigate reports of enforced disappearances and abductions of Serbs, Roma, and other minorities. In the absence of a police force, many family members reported these crimes to KFOR, who were also involved in the recovery and reburial of bodies.23
According to a 2009 Amnesty International report, while the ICRC retained overall responsibility for documenting reports by families unable to trace their relatives, in the years immediately following the conflict there was massive confusion over the number and identity of missing persons. In addition to the ICRC, reports of missing persons were both received and actively solicited by the UNMIK Bureau for Detainees and Missing Persons, the Victim recovery and Identification Commission (VRIC) of the Organization for Security and Co-operation in Europe (OSCE), several international and local non- governmental organizations (NGOs), as well as associations of relatives of the disappeared and abducted.24
Numerous agencies and ambiguities regarding where to report the disappearance of persons have led to a huge delay in determining the number and identity of the missing and, consequently, to a delay in opening criminal investigations. It is from the large number of different international organizations that have dealt with this issue that the importance of opening international archives in order to shed light on the fate of the missing in Kosovo arises.
In addition, finding and opening KLA archives is considered crucial for resolving this issue, which Belgrade insists on, and who have conditioned the opening of its archives
23 Amnesty International: Sahranjivanje prošlosti 10 godina nekažnjavanja za otmice i nestanke na Kosovu, jun 2009, str. 15: https://www.amnesty.org/download/Documents/48000/eur700072009srp.pdf; There is no data about how much information received from family members or evidence obtained from the bodies found by KFOR was unofficially handed over to UNMIK. At the time of writing this document, KFOR archives relating to such reports have not been made available to researchers in Serbia or Kosovo. 24 Ibid. p. 16;
17 The efficiency of mechanisms of institutions of Serbia and Kosovo in finding missing persons from the war in Kosovo between 2016 and 2020
with reciprocity. However, official Priština claims that the KLA was a guerrilla organization, and that military archives do not exist.25
Nevertheless, in the Draft law on Protection of the KLA War Values, which was repeatedly on the agenda of the Kosovo Assembly session without enough votes for its adoption, the KLA archives were recognized as a protected value.26 Some authors, however, believe that it is unrealistic to expect that the KLA archives contain data on the graves of missing persons, and that, regardless of the fact that the archives are hidden, the public is aware of specific documentation.27
It is pointed out that part of the documentation was used during the trial of Albanians before the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague, and that this court contains numerous documents that were not used. In addition, selected documentation was used before courts in Kosovo that prosecuted former KLA members for war crimes. Many books published in Kosovo are written on the basis of the KLA archives and the authors refer to it, as well as the fact that certain KLA announcements are available to the public, in which this organization has taken responsibility for certain liquidations. Institutions of the Republic of Serbia, KFOR, UNMIK, EULEX, but also private individuals, also have various KLA documentation.28
25 Will Serbia and Kosovo Open Up Secret War Archives, Serbeze Haxhiaj and Milica Stojanović, BIRN, 11. avgust 2020: https://balkaninsight.com/2020/08/11/will-serbia-and-kosovo-open-up-secret-war-archives/; 26 Kosovska skupština opet bez kvoruma: Nacrt zakona o vrednostima rata OVK nije izglasan, KosSev, 16. oktobar 2020: https://kossev.info/kosovska-skupstina-opet-bez-kvoruma-nacrt-zakona-o-vrednostima-rata-ovk-nije-izglasan/; 27 Bojan Đokić, Arhiva OVK, Danas, 15. septembar 2020: https://www.danas.rs/drustvo/suocavanje/arhiva-ovk/; 28 Ibid;
18 The efficiency of mechanisms of institutions of Serbia and Kosovo in finding missing persons from the war in Kosovo between 2016 and 2020
WAR CRIMES TRIALS AND THE SEARCH FOR THE MISSING
Serbia
“Disappearance of people during armed conflicts is largely a consequence of violations of international humanitarian law”29, and resolving the issue of missing persons is, in essence, a humanitarian issue that must not be conditioned. Resolving the fate of missing persons, however, can also provide information on those responsible for committing crimes, thus contributing to the process of transitional justice and war crimes trials.
In the period we are analysing, in 2016, the National Strategy for War Crimes Prosecution was adopted, which was valid until 2020. The Strategy states that it is necessary that “war crimes proceedings [are] lawfully conducted, within a reasonable time, with full respect for the rights of all subjects of the proceedings. This would allow those responsible for war crimes to be adequately punished, victims to receive justice, and bodies of the missing to be found.”30 The stated goals that would contribute to the progress in the field of war crimes trials and resolving the issue of missing persons are the improvement of the normative framework, institutional and administrative capacities of state authorities, but also the improvement of regional and international cooperation.31 Reducing the number of missing persons would be one of the indicators of the successful implementation of the National Strategy.32
Two years later (2018), the Prosecutor’s Strategy for Investigation and Prosecution of War Crimes in the Republic of Serbia was adopted, with a validity period until 2023. The Prosecutor’s Strategy is harmonized with the National Strategy, it recognizes the need for timely implementation of war crimes proceedings, but also intensification of investigations of sites33 and improvement of cooperation between the War Crimes Prosecutor’s Office and the Commission for Missing Persons of the Government of the Republic of Serbia.34
The Prosecutor’s Strategy also states that “at the request of the Prosecutor’s Office, and for the purpose of conducting specific criminal proceedings, the Commission for Missing Persons of the Government of the Republic of Serbia submits documentation and data
29 Predlog praktične politike: Potraga za licima nestalim tokom oružanih sukoba na teritoriji bivše Jugoslavije tokom 1990-ih godina, Fond za humanitarno pravo, Beograd, 2018, str. 22: http://www.hlc- rdc.org/wpcontent/uploads/2018/07/Predlog_prakticne_politike_Potraga_za_nestalima_SRP_stampano_ff_13.07.2018.pdf; 30 Nacionalna strategija za procesuiranje ratnih zločina, Službeni glasnik Republike Srbije, br. 19/2016, str. 4: https://www.mpravde.gov.rs/vest/12116/-nacionalna-strategija-za-procesuiranje-ratnih-zlocina-.php; 31 Ibid. p. 30-31; 32 Ibid. p. 7; 33 Tužilačka strategija za istragu i gonjenje ratnih zločina u Republici Srbiji (2018-2023), str. 8: http://www.tuzilastvorz.org.rs/upload/HomeDocument/Document__sr/2018-05/strategija_trz_srb.pdf; 34 Ibid. p. 32;
19 The efficiency of mechanisms of institutions of Serbia and Kosovo in finding missing persons from the war in Kosovo between 2016 and 2020
from its records to the Prosecutor’s Office”,35 as well as “information regarding the circumstances of disappearances and possible sites where the bodies of those killed were buried”36.
It is important to remember that in 2015, after the publication of the file Rudnica of the Humanitarian Law Centre, the then prosecutor for war crimes, Vladimir Vukčević, announced an investigation against the Chief of General Staff Ljubiša Diković.37 Tomislav Nikolic, then the President of the Republic of Serbia, publicly supported the general, and told Vukčević to “think a little about what he is digging in Serbia.”38 The investigation against Ljubiša Diković was not initiated, and Vukčević’s mandate expired at the end of that year.
In the period from 1 January 2016 to 31 May 2017, there was no authorized war crimes prosecutor, which led to a delay in the proceedings because only an authorized prosecutor can represent existing indictments and file new ones.39
In its Reports on War Crimes Trials in Serbia, the Humanitarian Law Centre states that the number of missing persons is not decreasing at an appropriate rate40, underlines the problem of the lack of indictments for crimes in Kosovo41 and points out problems in the indictment for crimes in the village of Trnje – lack of records on exhumation and autopsy, i.e., non-registration of missing persons by the competent authorities.42
In addition to the existing legal framework and strategies, the Report of the Commission for Missing Persons for 2019 emphasizes the need to draft a Law on Missing Persons which would regulate the rights of family members of missing persons, emphasized by representatives of the Coordination of Serbian Associations of Families of Missing Persons, supported by president of the Republic of Serbia, Aleksandar Vučić.43 The Working Group for drafting the Law on Missing Persons includes representatives of the Commission on Missing Persons, the Ministry of Justice, the Ministry of Interior, the
35 Ibid. p. 31; 36 Ibid. p. 32; 37 During the war in Kosovo, Ljubiša Diković commanded the 37th Motorized Brigade, responsible for killing a large number of civilians in the Drenica area. The Unit for Sanitation of the Terrain of the 37th Mtbr. was in charge of removing the bodies, many of which were found in 2013 in the Rudnica mass grave. Dosije Rudnica, Fond za humanitarno pravo, Beograd, januar 2015, p. 27 i 39: http://www.hlc-rdc.org/wp-content/uploads/2015/01/Dosije_Rudnica_sr.pdf; 38 Nikolić: Tužilac Vukčević da razmisli šta kopa po Srbiji, Ognjen Zorić, Radio Slobodna Evropa, 14. februar 2015: https://www.slobodnaevropa.org/a/nikolic-tuzilac-vukcevic-da-razmisli-sta-kopa-po-srbiji/26849571.html; 39 Izveštaj o suđenjima za ratne zločine u Srbiji tokom 2017. i 2018. godine, Fond za humanitarno pravo, Beograd, maj 2019, str. 28- 29: http://www.hlc-rdc.org/wp-content/uploads/2019/05/Izvestaj-o-sudjenjima-za-ratne-zlocine-u-Srbiji.pdf; 40 Ibid. p. 23; 41 Izveštaj o suđenjima za ratne zločine u Srbiji tokom 2016. godine, Fond za humanitarno pravo, Beograd, maj 2017, str. 20: http://www.hlcrdc.org/wpcontent/uploads/2017/05/Izvestaj_o_sudjenjima_za_2016.pdf; 42 Izveštaj o suđenjima za ratne zločine u Srbiji tokom 2017. i 2018. godine, Fond za humanitarno pravo, Beograd, maj 2019, str. 86: http://www.hlc-rdc.org/wp-content/uploads/2019/05/Izvestaj-o-sudjenjima-za-ratne-zlocine-u-Srbiji.pdf; 43 Izveštaj o radu Komisije za nestala lica u periodu od 1. januara do 31. decembra 2019. godine, Vlada Republike Srbije, Komisija za nestala lica, Beograd, februar 2020, str. 10-11: http://www.kznl.gov.rs/latinica/dokumenta.php;
20 The efficiency of mechanisms of institutions of Serbia and Kosovo in finding missing persons from the war in Kosovo between 2016 and 2020
Ministry of Labour, Employment, Veterans and Social Affairs, the Ministry of European Integration, and the UNDP representative Ivan Jovanović. In addition to the need to pass a law on missing persons, Jovanović emphasizes the need to amend the Criminal Code to define enforced disappearance, an act that is currently only a crime against humanity, as a special crime without the possibility of statute of limitations.
Kosovo
The investigation and prosecution of enforced disappearances in Kosovo, from July 1999 to November 2008, was the responsibility of UNMIK, which was responsible for serious crimes, including war crimes.
The Amnesty International report from 2013 stated that the UNMIK mission had failed to initiate timely and thorough investigations when people reported the disappearance of their family members immediately after the end of the armed conflict in Kosovo. It is added that based on the evidence gathered by the UNMIK Human Rights Advisory Panel (HRAP), there is a shocking disregard for the rights of missing persons and members of their families.44
The report states that reports of missing persons were not promptly, impartially, and thoroughly investigated by UNMIK police, and that relatives were rarely informed of any progress in those investigations. In some of the complaints considered prior to the publication of this report, the HRAP has found that no investigation has ever took place, or that the investigation was abandoned after the remains of the missing persons were returned to their families.45
Although the report focuses on the abduction of Kosovo Serbs by KLA members, Amnesty International found similar failures by UNMIK to conduct a timely, impartial, and effective investigation of enforced disappearances of Kosovo Albanians by Serb police, the army, and paramilitary units.
UNMIK’s responsibilities for the rule of law in Kosovo ended in December 2008, when the EULEX mission took over UNMIK police, prosecution, and judicial functions, as well as the authority to investigate and prosecute serious crimes, including crimes under the international law.
44 Kosovo: UNMIK’s legacy: The failure to deliver justice and reparation to the relatives of the abducted, Amnesty International, 2013, str. 5: https://www.amnesty.org/download/Documents/16000/eur700092013en.pdf; 45Kosovo: UNMIK’s legacy: The failure to deliver justice and reparation to the relatives of the abducted, Amnesty International, 2013, str. 5: https://www.amnesty.org/download/Documents/16000/eur700092013en.pdf;
21 The efficiency of mechanisms of institutions of Serbia and Kosovo in finding missing persons from the war in Kosovo between 2016 and 2020
Amnesty International states that EULEX’s work in the investigation of enforced disappearances so far has shown that “some progress has been made” in the disappearance of Kosovo Albanians by Serb forces. On the other hand, “minor progress” has been made in investigations and prosecutions related to the abductions of Serbs and other minorities.46
In 2014, the transfer of EULEX powers to local, Kosovo authorities began. As of June 2018, the SPO has exclusive jurisdiction to investigate and prosecute war crimes and other violations of international humanitarian law.
EULEX handed over about 900 war crimes cases to the SPRK, while about 2,000 cases related to missing persons were transferred from the EULEX War Crimes Sector to the War Crimes Investigation Unit, i.e., the Missing Persons Unit in the Kosovo Police.47
The Prosecutorial Council of Kosovo adopted the Strategy of War Crimes in February 2019. One of the goals of this strategy is to ensure the investigation and prosecution of war and other crimes under international law, including enforced disappearances and killings of missing persons, during and after armed conflict. The Strategy states that “cases of forced missing and abductions committed in the context of the conflict in Kosovo should be thoroughly investigated to ensure that those responsible, including civilian commanders and civil servants will be punished in accordance with the weight of their actions.”48
In order to achieve this, it is primarily necessary to assess the cases submitted by EULEX. It is pointed out that this should have been done by EULEX “instead of being set aside and handed over to the SPRK and the Kosovo Police”. It is added that the prosecution and the police will activate these cases “as soon as possible”. It also states that “from the EULEX handover, it is clear that the cases for missing persons were not processed and were not prioritized by EULEX throughout its mandate”, as well as that they have not provided any explanation for this.49
Given the volume of cases handed over to the prosecution and police by EULEX (900 war crimes cases and 2,000 missing persons cases), the strategy states that it is “unrealistic to expect all the alleged violations of international humanitarian law that have been committed during or after the conflict, to be investigated or prosecuted in the same
46 Ibid. p. 7; 47 Strategija ratnih zločina, Tužilački savet Kosova, Državno tužilaštvo, Priština, februar 2019, p. 5: https://prokuroria- rks.org/assets/cms/uploads/files/Dokumente%20Publikime/KPK/Dokumente%20Strategjike/STRATEGIJA%20RATNIH%20ZLO CINA.pdf; 48 Ibid. p. 24; 49 Ibid. p. 10;
22 The efficiency of mechanisms of institutions of Serbia and Kosovo in finding missing persons from the war in Kosovo between 2016 and 2020
manner and with the same commitment, in particular, having in mind the limited resources allocated to SPRK and the WCIU of Kosovo Police”.50
It also points out that the cooperation between the State Prosecutor and the Institute of Forensic Medicine and regional cooperation in this field and with relevant local and international institutions is essential to a successful investigation of the abduction and disappearance of people that occurred during and after the war.51 However, the “insufficient or lack of implementation of protocols for co-operation between prosecutions in charge of investigating and prosecuting war crimes and other violations of international humanitarian law, including the fate of missing persons, has resulted in a degree of unsatisfactory cooperation on information exchange at the regional level”.52
One of the main problems emphasized, when it comes to the investigation and prosecution of war crimes, including the fate of the missing, is the lack of a strategic plan or agreement between Kosovo and Serbia. The Strategy states that cooperation and exchange of information between Kosovo and Serbian prosecution bodies “almost does not exist”, and that “the only existing protocol of cooperation is the one between the EULEX Police and the Serbian MUP”.53 A special problem, as pointed out, is the immunity of suspects who are in Serbia or other states in the territory of the former Yugoslavia, and of the evidence material that is “often located in the ICTY and other international organizations.”54
Special Prosecutor Drita Hajdari, after the adoption of this strategy, expressed concern that the Strategy could not succeed without the support of high political officials, both in Kosovo and in Serbia.55
According to the HLC Kosovo, from 1999 to the end of 2020, 41 people were convicted of war crimes in Kosovo (34 Albanians, 6 Serbs and 1 Roma). In more than 90% of these cases, convictions were handed down for crimes committed against the Albanian civilians. Although the Strategy was adopted in 2019, reports on progress in its implementation are not available to the public.
50 Ibid. p. 10; 51 Ibid. p. 24; 52 Ibid. p. 18; 53 Ibid. p. 18-19; 54 Ibid. p. 6; 55 Kosovo: Nova Strategija za ratne zločine se suočava sa političkim preprekama, Serbeze Hadžiaj, BIRN, 13. mart 2019: https://balkaninsight.com/2019/03/13/kosovo-nova-strategija-za-ratne-zlocine-se-suocava-sa-politickim-preprekama/?lang=sr;
23 The efficiency of mechanisms of institutions of Serbia and Kosovo in finding missing persons from the war in Kosovo between 2016 and 2020
ACTIVITIES OF STATE AUTHORITIES ON REDUCING THE NUMBER OF MISSING PERSONS AND DISCOVERING MASS GRAVES IN SERBIA AND KOSOVO
Serbia
According to the Work Report of the Commission for Missing Persons of the Government of the Republic of Serbia, by the end of 2016, 1,660 persons were listed as missing.56 That year, three sessions of the Working Group for Missing Persons within the Belgrade - Priština Dialogue and three sessions of the Working Subgroup for Forensic Issues were held. Two sessions of the Working Group for Compilation of Facts and Evidence of Crimes against Persons of Serbian Nationality and Other National Communities in Kosovo and Metohija of the Committee for Kosovo and Metohija of the National Assembly were also held.57 During the year, the Commission participated in exhumations, re-associations, identifications, and handovers of 12 persons in connection with the conflict in Kosovo and Metohija.58
The Commission for Missing Persons states that by the end of 2017, 1,654 persons were listed as missing.59 During the year, two sessions of the Commission for Missing Persons, Seventh and Eighth, two sessions of the Working Group, one session of the Working Subgroup for Forensic Issues, five meetings of the Analysis Team and several sessions of the Assembly Working Group were held.60 In 2017, the Commission participated in exhumations, re-associations, identifications and handovers of four persons in connection with the conflict in Kosovo and Metohija.61
By the end of December 2018, 1,653 persons were still listed as missing, according to the report of the Commission for Missing Persons.62 Three sessions of the Working Group, three sessions of the Working Subgroup for Forensic Issues, a meeting of the Analysis Team and three sessions of the Working Group of the Assembly Committee for Kosovo and Metohija were also held. The head of the Assembly Working Group, Milovan Drecun, pointed out the processing of 1630 events and 3573 documents processed in connection with the areas of Drenica and Dukagjin.
56 Izveštaj o radu Komisije za nestala lica u periodu od 1. januara do 31. decembra 2016. godine, Beograd, februar 2017, p.4: http://www.kznl.gov.rs/latinica/dokumenta.php; 57 Ibid. p. 9-12; 58 Ibid. p. 4; 59 Izveštaj o radu Komisije za nestala lica u periodu od 1. januara do 31. decembra 2017. godine, Beograd, mart 2018, p 6: http://www.kznl.gov.rs/latinica/dokumenta.php; 60 Ibid. p. 9-14; 61 Izveštaj o radu Komesarijata za izbeglice i migracije za 2017. godinu, Beograd, mart 2018. godine, p. 71: https://kirs.gov.rs/media/uploads/2017.pdf; 62 Izveštaj o radu Komisije za nestala lica u periodu od 1. januara do 31. decembra 2018. godine, Beograd, januar 2019, p. 5: http://www.kznl.gov.rs/latinica/dokumenta.php;
24 The efficiency of mechanisms of institutions of Serbia and Kosovo in finding missing persons from the war in Kosovo between 2016 and 2020
In July 2018, at the summit of the Western Balkan countries in London, the Joint Declaration on Missing Persons was signed, and in November, the Framework Plan was signed in The Hague.63 In order to implement the Framework Plan, the Missing Persons Group (MPG) was established, consisting of two operational groups - the Operational Group for the Database of Active Cases of Missing Persons in the Former Yugoslavia and the Group for Resolving Unidentified Remains in Mortuaries in the Region.64
In 2018, four locations that were assumed to be the graves of Kosovo Albanians were checked - Kiževak, Jalovište, Medevce and Karadak. Kiževak and Jalovište were nominated for the search by the Belgrade delegation of the Working Group for Missing Persons, Medevce by RECOM, and Karadak by the War Crimes Prosecutor’s Office. No remains were found at any of the sites.65
In 2018, the Commission participated in exhumations, re-associations, identifications, and handovers of eight persons in connection with the conflict in Kosovo and Metohija.66
In the Report of the Commission for Missing Persons, as of December 2019, 1,646 persons were listed as missing.67 During the year, the ninth session of the Commission for Missing Persons was held68, as well as one session of the Working Group, one meeting of the Analysis Team and three sessions of the Assembly Working Group. No session of the Working Subgroup on Forensic Issues was held.69
On the sidelines of the summit of the Western Balkan countries in Poznan, a meeting of the Missing Persons Group was held, where the first report of the Group was presented. After that, two more meetings of the Missing Persons Group were held - in Zagreb and in Podgorica.70 In 2019, the Commission participated in exhumations, re-associations, identifications, and handovers of eight persons in connection with the conflict in Kosovo and Metohija.71 The terrain at the location Jalovište near Raška was also checked, but no remains were found.72
63 Izveštaj o radu Komesarijata za izbeglice i migracije za 2018. godinu, Beograd, april 2019, p. 26-28: https://kirs.gov.rs/media/uploads/2018.pdf; 64 Ibid. p. 89-90; 65 The response of the Commissariat for Refugees and Migration of the Republic of Serbia to the request for access to information of public importance submitted by the Youth Initiative for Human Rights on 22 January 2021. 66 Ibid; 67 Izveštaj o radu Komisije za nestala lica u periodu od 1. januara do 31. decembra 2019. godine, Beograd, februar 2020, p. 7: http://www.kznl.gov.rs/latinica/dokumenta.php; 68 Ibid. p. 10; 69 Ibid. p. 14-16; 70 Izveštaj o radu Komesarijata za izbeglice i migracije za 2019. godinu, Beograd, april 2020, p. 67-69: https://kirs.gov.rs/media/uploads/2019.pdf; 71 Ibid, p. 67; 72 Izveštaj o radu Komisije za nestala lica u periodu od 1. januara do 31. decembra 2019. godine, Beograd, februar 2020, p. 17: http://www.kznl.gov.rs/latinica/dokumenta.php;
25 The efficiency of mechanisms of institutions of Serbia and Kosovo in finding missing persons from the war in Kosovo between 2016 and 2020
Two meetings of the Missing Persons Group were held in 2020. At the second meeting, held in October in Belgrade, the Work Report of the Missing Persons Group for the period from July 2019 to November 2020 was discussed. The report was presented at the Western Balkans Summit in Sofia.73 In December 2020, the first exhumations took place at the Kiževak location near Raška.74 Excavations at the Kiževak mine began in November 2015 but were often suspended due to technical reasons and weather conditions. Since Kiževak was an active mine, the appearance of the terrain changed, which made it difficult to find the exact location where the bodies were buried in 1999. The search was aided by a satellite image from the US Department of Defence, which successfully reconstructed the appearance of the location in 1999. Odalović states that five bodies exhumed at the Kiževak location are in the identification phase, and that at least 10 more bodies are expected to be found. Kiževak is currently preserved due to unfavourable weather conditions, and the works will continue in the spring of 2021, as soon as the weather conditions allow.75
In 2020, on the order of the War Crimes Prosecutor’s Office, a trial excavation was carried out in Kozarevo, in the municipality of Novi Pazar. During the year, the Commission participated in exhumations, re-associations, identifications, and handovers of 11 persons related in connection with the conflict in Kosovo and Metohija.76
In an online discussion held in January 2021, the president of the Commission for Missing Persons stated that another 1,642 people are listed as missing. On that occasion, Odalović also pointed out that the last inspected location was located near the Štavalj coal mine. The Priština delegation pointed out the location, and inspection of the location could start in the spring of 2021.
In February 2021, the remains of a soldier who died in Košare during the 1999 war were taken over and identified.77
As visible from the report of the Commission for Missing Persons and the words of its representatives, in the period from 2016 to 2020, the fate of 18 persons who were listed as missing in connection with the war in Kosovo was resolved. Through requests for information of public importance, the Youth Initiative for Human Rights requested aggregate data from the Commission for Missing Persons on the exact number of
73 Predstavljen drugi izveštaj Grupe za nestala lica, Komisija za nestala lica, 18. decembar 2020: http://www.kznl.gov.rs/latinica/aktuelno.php; 74 Ekshumacija posmrtnih ostataka u rudniku Kiževak kod Raške, Komisija za nestala lica, 4. decembar 2020: http://www.kznl.gov.rs/latinica/aktuelno.php; 75 Online diskusija Doprinos Vlade Srbije rešavanju pitanja nestalih iz oružanog sukoba na Kosovu 1998 – 2000, 19. januar 2021: https://www.youtube.com/watch?v=3dsUiTTp7Xw; 76 Odgovor Komesarijata za izbeglice i migracije Republike Srbije na zahtev za pristup informacijama od javnog značaja koji je Inicijativa mladih za ljudska prava uputila 22. januara 2021. godine. 77 Preuzeti posmrtni ostaci vojnika stradalog u konfliktu na AP KiM 1999. godine, Komisija za nestala lica, 03. februar 2021: http://www.kznl.gov.rs/latinica/aktuelno.php;
26 The efficiency of mechanisms of institutions of Serbia and Kosovo in finding missing persons from the war in Kosovo between 2016 and 2020
discovered, exhumed, and handed over remains in this period, but we did not receive aggregate data until the analysis was finalized.
Comparing the ICRC data, the HLC notes that the National Strategy for War Crimes Prosecution does not lead to an efficient and significant reduction in the number of missing persons. In November 2018, 10,261 people from the wars in Croatia, Bosnia and Herzegovina and Kosovo were listed as missing, while in November 2019, that number was reduced to 10,090.78
Between 2016 and 2020, but even before that, no indictment was filed as a result of finding mass graves with the bodies of Kosovo Albanians, nor did any criminal proceedings for crimes committed in Kosovo result in the discovery of mass graves and missing persons in Serbia. It should be mentioned, however, that the criminal proceedings in the Drenica Group case, conducted in Kosovska Mitrovica, led to the discovery of the Rudnica mass grave in Serbia, where the first remains were exhumed in 2014.79
The Commission for Missing Persons meets with international organizations, associations of families of the missing and Priština representatives. The Belgrade and Priština delegations of the Working Group for Missing Persons regularly exchange information and together go to the field and identify the found remains. The Commission points out that every location referred to by Priština, organizations such as the RECOM Reconciliation Network or individuals, were searched. However, a passive approach to the problem of missing persons is noticeable. Consequently, a more proactive approach to this issue is needed, both by the Commission for Missing Persons and by other relevant authorities.
Kosovo
According to the EULEX mission, in the period from 2016 to 2020, 59 terrain assessments, 41 exhumations were conducted in Kosovo, the remains of 66 individuals were found, while 32 missing persons were identified.80
In 2016, 24 terrain assessments and 9 exhumations were performed, the remains of 16 persons were found, while 9 missing persons were identified. In the following year, 2017,
78 Peti izveštaj o sprovođenju Nacionalne strategije za procesuiranje ratnih zločina, Find za humanitarno pravo, Beograd, decembar 2019, p. 16: http://hlc-rdc.org/wp content/uploads/2019/12/Peti_izvestaj_o_sprovodjenju_Nacionalne_strategije_za_procesuiranje_ratnih_zlocina.pdf; 79 Dosije Rudnica, Fond za humanitarno pravo, Beograd, januar 2015, str. 9 http://www.hlc-rdc.org/wp- content/uploads/2015/01/Dosije_Rudnica_sr.pdf; 80 The information was obtained by the EULEX mission, on 3 February 2021 upon the request for information of public importance by the New Social Initiative (NSI). On the other hand, the ICMP report from 2017 states, based on data provided to them by EULEX, that 20 field operations (exhumation and field assessment) were carried out in 2016, with 16 incomplete sets of mortal remains and 1 complete; Lica nestala usled sukoba na Kosovu i njegovih posljedica – Pregled stanja, Međunarodna komisija za nestala lica, Priština, 2017, p. 21: https://www.icmp.int/wp-content/uploads/2017/05/kosovo-stocktaking-report-2017-bcs-2.pdf;
27 The efficiency of mechanisms of institutions of Serbia and Kosovo in finding missing persons from the war in Kosovo between 2016 and 2020
8 terrain assessments and 12 exhumations were performed, the remains of 19 individuals were found, while 7 missing persons were identified.81 In 2018, 6 assessments of the terrain and 1 exhumation were performed, the remains of 7 individuals were found, while 5 missing persons were identified. In 2019, 18 terrain assessments and 10 exhumations were performed, the remains of 11 individuals were found, while 9 missing persons were identified. Last year, 2020, 3 terrain assessments and 9 exhumations were performed, the remains of 13 individuals were found, and 2 missing persons were identified.82
Information on the excavation sites, ethnicity and gender of the identified individuals was not provided to the authors by EULEX. More specific information on the activities undertaken by the Commission for Missing Persons of the Government of Kosovo in the period from 2016 to 2020 is not available.83
The report of the Missing Persons Group in the period from July 2019 to the end of October 2020 states that the Kosovo Commission for Missing Persons participated in 12 field surveys, 18 exhumations in Kosovo and two exhumations in Serbia. During the exhumations on the territory of Kosovo, the remains of 13 people were found. In this period, the Commission identified 14 persons and handed over their remains to their families. The remains of five people were handed over to Montenegro, two to Serbia, and the remains of one person were handed over to Kosovo by Bosnia and Herzegovina.84
According to the data of the Commissariat for Refugees and Migration of the Republic of Serbia, the Belgrade delegation of the Working Group for Missing Persons attended several trial excavations on the territory of Kosovo and Metohija in the period from 2016 to 2020. In 2016, the delegation attended excavations near the Church of Christ the Savior in Priština and at the location in Leposavić. No remains were found at any of the sites. The following year (2017), excavations were carried out near the mosque in Kosovska Mitrovica, the Orthodox cemetery in Prizren and the village of Kovače in the municipality of Zubin Potok. Two persons of Serbian nationality were found in Prizren. In 2018, excavations were carried out at the location in Đakovica/Gjakova, and on that occasion, the remains of eight persons of Serbian and non-Albanian nationality were found. In 2019, excavations were carried out without success at the locations of Kišnica and Ugljara, but the remains of two people - one of Serbian and the other Albanian nationality - were found at the Tusus location in the Prizren municipality and at the Muslim cemetery in Kosovska Mitrovica. In Budisavce, Klina municipality, a potential grave with two persons of Serbian nationality was marked. In 2020, excavations were carried out on several
81 Isto; 82 Ibid; 83 The Commission for Missing Persons of the Government of Kosovo still does not have a functioning official website. It is not possible to find the reports of this commission for the period 2016-2020 on the website of the Government of Kosovo. Upon request for submission of reports from the Commission, we were told that the summary reports of the Commission are submitted to the Government of Kosovo and that they are publicly available. 84 Godišnji izveštaj Grupe za nestala lica, novembar 2020, p. 6-7
28 The efficiency of mechanisms of institutions of Serbia and Kosovo in finding missing persons from the war in Kosovo between 2016 and 2020
occasions at the Muslim cemetery in Kosovska Mitrovica, when the remains of six persons of Albanian nationality were found. Surveying of a location in Košare was also carried out, where, as it is presumed, the remains of three former soldiers of Serbian nationality are located.85
These data are also stated in two EULEX mission reports for 2017 and 2018. However, the reports cover the period of the second half of the previous and the first half of the year of the report, without indicating the date when the excavation was carried out at a specific location.86
The issue of missing persons in Kosovo is also addressed in the reports of the European Commission (EC), however, the data contained in them for 2018 and 2019 do not match the data of EULEX. Thus, the reports state that in 2018, the Commission for Missing Persons of the Government of Kosovo conducted field assessments and exhumations at 20 locations and that 7 cases of missing persons were resolved, while in 2019 it is stated that 8 cases were resolved, and field assessments and exhumations were conducted at 29 locations.87 We also requested information from the ICRC on the locations where the excavations were carried out, the number of found remains, identified persons, their ethnicity and gender for the period from 2016 to 2020, but they were not submitted to us until the publication of this report.
85 Response of the Commissariat for Refugees and Migration of the Republic of Serbia to the request for access to information of public importance sent by the Youth Initiative for Human Rights on 22 January 22 2021 86 Compact progress report – Assessing progress between July 2016 and June 2017, EULEX: https://www.eulex- kosovo.eu/eul/repository/docs/CPR-2017.pdf and Compact progress report – Assessing progress between July 2017 and June 2018, EULEX: https://www.eulex-kosovo.eu/eul/repository/docs/106075-CPR-2018-En.PDF; 87 Kosovo report 2019, European Commission: https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/20190529-kosovo- report.pdf; and Kosovo report 2020, European Commission: https://ec.europa.eu/neighbourhood- enlargement/sites/near/files/kosovo_report_2020.pdf;
29 The efficiency of mechanisms of institutions of Serbia and Kosovo in finding missing persons from the war in Kosovo between 2016 and 2020
FINDINGS OF INTERNATIONAL INSTITUTIONS ON SOLVING THE ISSUES OF THE MISSING PERSONS (2016-2020)
Serbia
UN Committee on Enforced Disappearances
International Convention for the Protection of All Persons from Enforced Disappearance is an international instrument on human rights of a legislative nature. The provisions of the Convention set out individual and collective rights, certain measures to monitor compliance, and established the UN Committee on Enforced Disappearances, which seeks to ensure that the parties abide by their commitments. The International Convention for the Protection of All Persons from Enforced Disappearance was adopted and opened for signature, ratification, and accession by UN General Assembly Resolution no. 61/177 of 6 February 2007.88
The Republic of Serbia ratified the Convention in May 2011 (“RS Official Gazette - International Agreements”, No. 1/2011), which, inter alia, accepted the obligation to report to the Committee on Enforced Disappearances on the measures taken and the progress made in ensuring respect for rights recognized in the Convention.89
Pursuant to Article 19 of the Convention, States Parties shall submit to the Committee on Enforced Disappearances a report on the measures taken to give effect to its obligations under the Convention and on the progress made in the enjoyment of those rights within two years after the entry into force of the Convention for the State Party concerned, and thereafter whenever the Committee requests so.
Pursuant to Article 30 of the Convention, a request that a disappeared person should be sought and found has been established, which may be submitted to the Committee as a matter of urgency, by relatives of the disappeared person or their legal representatives, their counsel or any person authorized by them, as well as by any other person having a legitimate interest, on the basis of which the Committee may request the States Party concerned to provide it with information on the situation of the persons sought, within a time limit set by the Committee.
On 27 April 2016, pursuant to paragraph 36 of the Concluding Observations of the Committee on Enforced Disappearances (CED / C / SRB / CO / 1), the Government of
88 Konvencija o zaštiti svih lica od prislinih nestanaka: https://ljudskaprava.gov.rs/sh/node/19859; 89 Inicijalni izveštaj Srbije o primeni Međunarodne konvencije o zaštiti svih lica od prisilnih nestanaka: https://ljudskaprava.gov.rs/sr/node/162;
30 The efficiency of mechanisms of institutions of Serbia and Kosovo in finding missing persons from the war in Kosovo between 2016 and 2020
the Republic of Serbia adopted the Responses on the Implementation of Recommendations from the Concluding Observations of the Committee on Enforced Disappearances on the Initial Report on the Application of the International Convention for the Protection of All Persons from Enforced Disappearance contained in paragraphs 11, 14 and 28.90
In the period after the UN Committee on Enforced Disappearances issued concluding remarks on the Initial Report submitted by Serbia, the capacity of the War Crimes Prosecutor’s Office was not upgraded, and information on the suspension of individuals in civilian and military services suspected of participating in the execution of the enforced disappearance did not reach the public. The European Commission’s Progress Report on Serbia for 2018 estimates that the protection of witnesses in war crimes cases has been improved, but that the working conditions and capacities of the Protection Unit have not been improved, and that the appropriate legislative changes needed for a proactive witness identity change have not been implemented.91
Council of Europe Commissioner for Human Rights
As stated in the HLC’s Policy Paper “Accounting for Missing Persons from the Armed Conflict in the former Yugoslavia”92, the Council of Europe Commissioner for Human Rights, in the report “Missing Persons and Victims of Enforced Disappearance in Europe”, addressed the issue of searching for missing persons in the wars in the former SFRY.93 In the mentioned report published in 2017, the Commissioner emphasizes that in order to achieve long-term peace and reconciliation, it is crucial to determine the truth about serious human rights violations and enforced disappearances, as well as to respect and remember the victims of these crimes. According to the HLC’s Policy Paper, this report also includes recommendations concerning the process of clarifying the fate of missing persons, ranging from treating accounting for missing persons as a priority issue by the governments in the region, encouraging intergovernmental cooperation in that regard, making the information held in official archives and security and intelligence agencies’ archives publicly available, and considering applying the principle of universal jurisdiction to cases of enforced disappearances, as it could contribute to the identification
90 Konvencija o zaštiti svih lica od prislinih nestanaka: https://ljudskaprava.gov.rs/sh/node/19859; 91 Izveštaj o napretku Republike Srbije za 2018. godinu, Evropska komisija, p. 21: https://www.mei.gov.rs/upload/documents/eu_dokumenta/godisnji_izvestaji_ek_o_napretku/izvestaj_ek_o_srbiji(1).pdf; 92 Predlog praktične politike: Potraga za licima nestalim tokom oružanih sukoba na teritoriji bivše Jugoslavije tokom 1990-ih godina, Fond za humanitarno pravo, Beograd, jun 2018, str. 17: http://www.hlc- rdc.org/wpcontent/uploads/2018/07/Predlog_prakticne_politike_Potraga_za_nestalima_SRP_stampano_ff_13.07.2018.pdf; 93 Izveštaj Nestale osobe i žrtve prisilnih nestanaka u Evropi iz 2017. godine je dostupan na: https://bit.ly/3nOwkWt;
31 The efficiency of mechanisms of institutions of Serbia and Kosovo in finding missing persons from the war in Kosovo between 2016 and 2020
and punishment of perpetrators.94 The report also contains recommendations aimed at recognizing the specific situation of the families of missing persons.95
European Commission
According to the HLC’s Policy Paper96, the European Commission, in its reports on Serbia, which show progress in meeting political, economic, and administrative criteria for EU accession, has for years focused on the problems of establishing criminal justice for war crimes committed during armed conflicts in the former Yugoslavia, but also the issue of determining the fate of missing persons. Reports from 2016 to 2020 emphasize that the unresolved fate of persons who went missing in the context of the armed conflicts of the 1990s continues to be a humanitarian problem. As a key obstacle in resolving the remaining cases of missing persons, in the last four annual reports, European Commission has cited a lack of information on grave locations and difficulties in identifying already exhumed remains.97
The latest report for 2020 states that the political stalemate between Belgrade and Priština continued to affect the progress on the resolution of missing cases related to the Kosovo conflict.98 In its 2020 report, the EC pointed out that the families of missing persons need more comprehensive support than currently available and the capacity of the state mechanism for searching missing persons should be further strengthened. The report especially emphasizes the need to draft a law on missing persons, which has been initiated in 2019, in order to strengthen support to the families of missing persons, and to reinforce the capacity of the state mechanisms for the search of missing persons.99
Kosovo
International Commission on Missing Persons
ICMP’s Stocktaking Report from 2017100 states that progress in terms of recovery and identification of missing persons from the Kosovo conflict has slowed dramatically in the last decade. The precondition for an effective solution to this issue is seen in the
94 Predlog praktične politike: Potraga za licima nestalim tokom oružanih sukoba na teritoriji bivše Jugoslavije tokom 1990-ih godina, Fond za humanitarno pravo, Beograd, jun 2018, p. 17:http://www.hlc- rdc.org/wpcontent/uploads/2018/07/Predlog_prakticne_politike_Potraga_za_nestalima_SRP_stampano_ff_13.07.2018.pdf; 95 Ibid. 96 Ibid. 97 Izveštaj o napretku Srbije za 2015. godinu, str 22; Izveštaj o napretku Srbije za 2016. godinu, p. 24; Izveštaj o napretku Srbije za 2018. godinu, p. 20-21. The reports are available at the official website of the Ministry of European Integration: https://www.mei.gov.rs/srl/dokumenta/eu-dokumenta/godisnji-izvestaji-ek; 98 Izveštaj o napretku Srbije za 2020. godinu, p. 71: https://www.mei.gov.rs/upload/documents/eu_dokumenta/godisnji_izvestaji_ek_o_napretku/serbia_report_2020_SR.pdf; 99 Ibid. 100 Lica nestala usled sukoba na Kosovu i njegovih posledica – Pregled stanja, Međunarodna komisija za nestala lica, Priština 2017, str. 7, 15: https://www.icmp.int/wp-content/uploads/2017/05/kosovo-stocktaking-report-2017-bcs-2.pdf;
32 The efficiency of mechanisms of institutions of Serbia and Kosovo in finding missing persons from the war in Kosovo between 2016 and 2020
responsibility at the highest levels of government, political will, and cooperation between the authorities in Belgrade and Priština. However, the authors point out that the cooperation proved to be short-lived and difficult to achieve, for several reasons.
“Direct cooperation between Priština and Belgrade authorities has been hampered by political issues that have nothing to do with the issue of the missing, or, conversely, as a result of posturing by authorities on all sides who have sought to use the issue for political ends,”101 the report states.
In addition, it is added that this process has been dominated by the international community, which “has pursued the issue as a humanitarian, technical concern, and has overlooked the need to build political, governance, and rule-of-law structures of accountability in Kosovo102”. A case in point stated is the long-standing reserve power of the international community in Kosovo.
The Law on Missing Persons
This report also identified shortcomings in the implementation of the Law on Missing Persons, which have not been corrected to date.
1. According to the legal provisions, the search for a missing person is considered completed when the missing person is found or when the remains are identified. The Law provides for the adoption of a bylaw by the Government of Kosovo, at the proposal of the Ministry of Justice, which would define the procedure for terminating the search for a missing person. This act would provide answers to questions such as which institutions are responsible for different procedures related to the termination of the search, i.e., who officially performs legal identification, what is the role of the prosecutor and who informs the family when the case is closed. However, that act was not adopted even three years later. 2. In addition, it is stipulated that the deputy chairman of the Commission shall be a representative of the non-majority community. However, since 2011, when the deputy chairman from the non-majority community resigned, this position has been vacant.103 3. Regarding the processing and treatment of personal data in the Central Register of Missing Persons, Article 15 of the Law on Missing Persons provides for the adoption of
101 Ibid. p. 15; 102 Lica nestala usled sukoba na Kosovu i njegovih posledica – Pregled stanja, Međunarodna komisija za nestala lica, Priština 2017, p. 15: https://www.icmp.int/wp-content/uploads/2017/05/kosovo-stocktaking-report-2017-bcs-2.pdf; 103 The report of the European Commission from 2018, as a positive step, states the appointment of the Deputy Chairman of the Commission, who comes from the non-majority communities, however, more information about that appointment is not available. Upon our request for access to information of public importance from 21 January 2021, in which, among other things, we requested information on the members of the Commission for Missing Persons, we received the answer that "the names of the members of the Commission will soon be published on the website, which is currently developed in cooperation with UNDP and the British Embassy”. Kosovo Report 2018, European Commission p. 46: https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/20180417- kosovo-report.pdf;
33 The efficiency of mechanisms of institutions of Serbia and Kosovo in finding missing persons from the war in Kosovo between 2016 and 2020
a rulebook establishing the procedure for use, registration, exclusion and exchange of data, their verification and management, in accordance with the Law on Information Protection and security rules, as well as with other legislation related to personal data protection. The Commission for Missing Persons has not adopted this rulebook yet. Overlapping of mandates
However, a bigger problem is the overlapping of the mandate of the Government Commission for Missing Persons with the mandate of the Kosovo Institute of Forensic Medicine.
Article 15, paragraph 1.7 of the Law on Forensic Medicine stipulates that the Institute of Forensic Medicine will maintain “contact with the families of missing persons and cooperation with local and international institutions and organizations involved in the process of clarifying the fate of the missing.”
These provisions overlap with the provisions of the Law on Missing Persons, which in Article 8 stipulates that the Commission for Missing Persons is a governmental body that manages, monitors and coordinates activities with domestic and international institutions and other actors, in clarifying the fate of missing persons as a result of the armed conflict from 1998-1999.
Privileged treatment of family members of missing KLA members
It was also noted that the authorities in Kosovo have taken measures to ensure that the families of missing persons have access and benefits in accordance with the law, but that family members of missing KLA members receive privileged treatment over the families of missing civilians.
Central register
The Law on Missing Persons also provides for the establishment of the Central Register of Missing Persons. It is a database that contains data on missing persons collected from available sources to help discover the identity and locations of missing persons, as well as the circumstances of their disappearance. The responsibility for its establishment and maintenance lies with the Commission for Missing Persons of the Government of Kosovo.
ICMP’s report states that the Kosovo Commission for Missing Persons established this register in 2012 and that it is in the Ministry of Public Administration. This register contains data on active cases of missing persons, however, until 2017, the Kosovo Commission for Missing Persons included post-mortem data on 558 cases of identified
34 The efficiency of mechanisms of institutions of Serbia and Kosovo in finding missing persons from the war in Kosovo between 2016 and 2020
missing persons in the Central Register. Due to a lack of human resources, data on about 3,000 additional closed cases have not yet been included.
Family members of the missing or their legal representatives may, in accordance with the Law on Missing Persons, submit a request for access to data in the Central Register. However, to date, this register has not been available for search as a website.
In this report, ICMP stated that efforts are needed to ensure the completion of the Central Registry to cover all closed and recently opened cases, as well as to ensure that it is available online, and that the Kosovo authorities must provide technical capacity for data maintenance and management in the Central Register.
Unidentified remains
ICMP collected reference samples of families of the missing, representing 1,874 persons still listed as missing at the time of writing the report (2017), but none of these reference samples matched the 699 unique DNA profiles isolated from unidentified bodies from Kosovo conflict. The report states that this is one of the key issues that must be resolved in order for the process to move forward.
It is assumed that misidentifications that occurred between 1999 and 2002, before the introduction of DNA analysis as the primary means of identifying human remains, are a significant factor in not solving the issue of these remains. About 2,000 cases of missing persons were resolved in this period by the method of probable identification, including visual recognition.
In 2010, ICMP made a DNA analysis of 77 cases from the Mitrovica area, which were previously concluded based on classical identification methods. The results showed that 13 of the 77 identifications were incorrect. Given that about 2,000 cases have been concluded based on classical identification methods, the number of incorrect identifications could be at least 340 cases. What further complicates this problem is that there are still about 300 unidentified remains in the Priština morgue, while the ICMP database contains 699 unique profiles from post-mortem samples without an established match.
In 2010, EULEX forensic staff began examining these unidentified remains. The 2012 annual report found that there were 342 unidentified cases in the Priština morgue, 94 of which could be identified in the future while identification is not possible for the remaining 248.104 The ICMP report states that the reason for previous misidentifications
104 The review of unidentified cases in the morgue in Priština resulted in the submission of a large number of post-mortem profiles to the ICMP for DNA testing, so 45 cases of missing persons were resolved on the basis of DNA analysis by the ICMP.
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probably contributing to the current situation is that families who received misidentified bodies by classical methods probably did not provide blood samples for identification by DNA. Also, classical methods of misidentified bodies have not included DNA testing, and therefore there will be no matches with the families with which the missing person is related.
European Commission
The EC report for Kosovo 2020 states that resolving the fate of 1,664 missing persons linked to the conflict in Kosovo remains difficult due to a lack of new information on graves.
The process to resolve the fate of missing persons in the period from 2016 to 2019 was undermined by politicisation and inter-institutional disputes. The report for 2018 also points out that recurring attempts by some politicians to amend the timeframe covered by the Law on Missing Persons, effectively excluding many non-Albanian victims, are not acceptable.105 However, it was noted that co-operation between the Kosovo Government’s Commission for Missing Persons and the Institute of Forensic Medicine has improved.106
The 2020 report noted that inter-institutional cooperation in Kosovo improved in the last two years, but that a more streamlined organisation would assist Kosovo speaking with one voice on the issue of the missing persons, both in national and regional discussions.107
The file holder at the Prime Minister Office108, the director of the Kosovo Commission for Missing Persons and the Kosovo representative to the Belgrade-Priština Working Group should be unified, according to the European Commission’s report.
In 2019, two regional meetings of the ICMP were held, where efforts were made to develop a single list of missing persons.
It was also noted that since 2017, the Kosovo government has failed to make a step forward, including the adoption of the necessary legislation, in establishing the Central Register of Missing Persons and concluding 62 cases of missing persons.
105 Kosovo report 2018, European Commission: https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/20180417-kosovo- report.pdf; 106 Kosovo report 2019, European Commission: https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/20190529-kosovo- report.pdf; 107 Kosovo report 2020, European Commission: https://ec.europa.eu/neighbourhood- enlargement/sites/near/files/kosovo_report_2020.pdf; 108 This function was established in 2018 by the then Prime Minister of Kosovo, Ramush Haradinaj, however, there is no information available on whether this function still exists and who is the person who performs this function.
36 The efficiency of mechanisms of institutions of Serbia and Kosovo in finding missing persons from the war in Kosovo between 2016 and 2020
As for the Institute of Forensic Medicine, EC reports over the past four years emphasize that the Institute still does not meet the necessary standards for sustainable forensic practice, including forensic anthropology and archaeology. It is emphasized that more needs to be done to build such capacity and ensure a continuous and sustainable funding of the Institute. The work on creating a functional case management system, started in the previous two years, has not yet led to its establishment. The Institute of Forensic Medicine and the Minister of Justice, after long delays, adopted the secondary legislation needed for the restructuring of the Institute in July 2020. The latest report for 2020 states that “some” progress has been made in building the Institute of Forensic Medicine’s capacity in forensic anthropology.109
The reports also state that there has been no progress in resolving the issue of unidentified bodies in the Priština morgue, and that all forensic possibilities for their identification have been exhausted.
109 Kosovo report 2020, European Commission: https://ec.europa.eu/neighbourhood- enlargement/sites/near/files/kosovo_report_2020.pdf;
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RECOMMENDATIONS
Based on the analysis of mechanisms for resolving the issue of missing persons (legislative solutions, collecting data on missing persons - archives, establishing facts about missing persons through war crimes trials, exhumations of graves) available to the institutions of Serbia and Kosovo in the period from 1 January 2016 to 31 December 2020, we propose the following:
1. That the Governments of Serbia and Kosovo, with the mediation of the EU, through an agreement, determine the cooperation of all institutions in terms of resolving the issue of missing persons from the Kosovo conflict. Such an agreement must have control mechanisms, which will be provided by the EU as a facilitator, as well as periodic reports on implementation. 2. It is necessary to open all domestic and international archives that include material that could contribute to and help resolve the fate of missing persons. 3. Establishing the facts about the fate of missing persons should be one of the priorities in the detection and prosecution of war crimes before the judiciary in Serbia and Kosovo. 4. It is necessary to adopt and implement the law on missing persons in Serbia with the widest possible consultation with victims’ associations and civil society, but also to improve other legislative solutions that will improve the general status of civilian victims of war and families of missing persons in Kosovo. 5. It is necessary for the Governments of Serbia and Kosovo to initiate changes in the Criminal Code, as well as in the laws on missing persons, so that enforced disappearance becomes a separate crime in accordance with the UN Convention for the Protection of All Persons from Enforced Disappearance, in order to speed up the finding of missing persons and process those who hide information. 6. It is necessary to harmonize the Kosovo legislative framework on missing persons, i.e., adopt bylaws that would regulate in more detail certain issues stipulated by the Law on Missing Persons, as well as clearly define the competencies of institutions dealing with this issue in order to avoid overlapping mandates. 7. Transparency of the work of the Commission for Missing Persons of the Government of Kosovo is needed - development of a functional official webpage where information on the members of the commission, work reports and other relevant data related to clarifying the fate of the missing in Kosovo would be available. 8. In addition to the archives of the police, army, and security services, in Serbia, it is necessary to investigate the archives available to utility companies, cemeteries,
38 The efficiency of mechanisms of institutions of Serbia and Kosovo in finding missing persons from the war in Kosovo between 2016 and 2020
health centres and public services that may have participated in the transfer and burial of the remains. 9. It is necessary for the Commissions for Missing Persons of Serbia and Kosovo to include in their annual reports the data they have requested and received from domestic, as well as international organizations and institutions. In order to discover the archives, more coordination and organization of consultative meetings is needed with associations of families of the missing, as well as with domestic and foreign institutions. 10. Instead of forcing them to declare their missing dead, families in Serbia and Kosovo should be given a “certificate of absence”, which would enable regulation of the situation regarding social benefits, property, family, and other rights.
39 The efficiency of mechanisms of institutions of Serbia and Kosovo in finding missing persons from the war in Kosovo between 2016 and 2020
BIBLIOGRAPHY
1. Amnesty International: Sahranjivanje prošlosti 10 godina nekažnjavanja za otmice i nestanke na Kosovu, jun 2009, p. 15: https://www.amnesty.org/download/Documents/48000/eur700072009srp.pdf; 2. Bojan Đokić, Arhiva OVK, Danas, 15. septembar 2020: https://www.danas.rs/drustvo/suocavanje/arhiva-ovk/; 3. Compact progress report – Assessing progress between July 2016 and June 2017, EULEX: https://www.eulex-kosovo.eu/eul/repository/docs/CPR-2017.pdf and Compact progress report – Assessing progress between July 2017 and June 2018, EULEX: https://www.eulex-kosovo.eu/eul/repository/docs/106075-CPR- 2018-En.PDF; 4. Dosije: Rudnica, Fond za humanitarno pravo, Beograd, januar 2015, p. 40: http://www.hlc-rdc.org/wp-content/uploads/2015/01/Dosije_Rudnica_sr.pdf 5. Ekshumacija posmrtnih ostataka u rudniku Kiževak kod Raške, Komisija za nestala lica, 4. decembar 2020: http://www.kznl.gov.rs/latinica/aktuelno.php; 6. EULEX Kosovo/ Institute of Forensic Medicine (IFM): http://www.shortcutmedia.net/portfolio/eulex-kosovo-institute-of-forensic- medicine-ifm/; 7. FHP: Gašić arhivu 37. motorizovane brigade proglasio tajnom, Miloš Teodorović, Radio Slobodna Evropa, 12. jun 2015: https://www.slobodnaevropa.org/a/fhp-gasic-arhivu-37-motorizovane-brigade- proglasio-tajnim/27068479.html; 8. Inicijalni izveštaj Srbije o primeni Međunarodne konvencije o zaštiti svih lica od prisilnih nestanaka: https://ljudskaprava.gov.rs/sr/node/162; 9. Informator o radu, Komesarijat za izbeglice i migracije, januar 2021, p. 10-12: https://kirs.gov.rs/media/uploads/INFORMATOR%20JANUAR%2029-01- 2021-converted.pdf 10. Izveštaj Evropske komisije iz 2018. EC Kosovo 2018, p. 46: https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/20180417- kosovo-report.pdf 11. Izveštaj Nestale osobe i žrtve prisilnih nestanaka u Evropi iz 2017. godine je dostupan na: https://bit.ly/3nOwkWt; 12. Izveštaj o napretku Republike Srbije za 2018. godinu, Evropska komisija, str. 21: https://www.mei.gov.rs/upload/documents/eu_dokumenta/godisnji_izvestaji_ek _o_napretku/izvestaj_ek_o_srbiji(1).pdf; 13. Izveštaj o napretku Srbije za 2015. godinu, p. 22; Izveštaj o napretku Srbije za 2016. godinu, p. 24; Izveštaj o napretku Srbije za 2018. godinu, p. 20-21. Izveštaji su dostupni na zvaničnoj internet prezentaciji Ministarstva za evropske
40 The efficiency of mechanisms of institutions of Serbia and Kosovo in finding missing persons from the war in Kosovo between 2016 and 2020
integracije: https://www.mei.gov.rs/srl/dokumenta/eu-dokumenta/godisnji- izvestaji-ek 14. Izveštaj o napretku Srbije za 2020. godinu, Ministarstvo za evropske integracije, p. 71: https://www.mei.gov.rs/upload/documents/eu_dokumenta/godisnji_izvestaji_ek _o_napretku/serbia_report_2020_SR.pdf; 15. Izveštaj o radu Komesarijata za izbeglice i migracije za 2017. godinu, Beograd, mart 2018. godine, p. 71: https://kirs.gov.rs/media/uploads/2017.pdf; 16. Izveštaj o radu Komesarijata za izbeglice i migracije za 2018. godinu, Beograd, april 2019, p. 26-28: https://kirs.gov.rs/media/uploads/2018.pdf; 17. Izveštaj o radu Komesarijata za izbeglice i migracije za 2019. godinu, Beograd, april 2020, p. 67-69: https://kirs.gov.rs/media/uploads/2019.pdf; 18. Izveštaj o radu Komisije za nestala lica u periodu od 1. januara do 31. decembra 2019. godine, Beograd, februar 2020, p. 3: http://www.kznl.gov.rs/latinica/dokumenta.php 19. Izveštaj o radu Komisije za nestala lica u periodu od 1. januara do 31. decembra 2019. godine, Vlada Republike Srbije, Komisija za nestala lica, Beograd, februar 2020, p. 10-11: http://www.kznl.gov.rs/latinica/dokumenta.php; 20. Izveštaj o radu Komisije za nestala lica u periodu od 1. januara do 31. decembra 2016. godine, Beograd, februar 2017, p.4: http://www.kznl.gov.rs/latinica/dokumenta.php; 21. Izveštaj o radu Komisije za nestala lica u periodu od 1. januara do 31. decembra 2017. godine, Beograd, mart 2018, p. 6: http://www.kznl.gov.rs/latinica/dokumenta.php; 22. Izveštaj o radu Komisije za nestala lica u periodu od 1. januara do 31. decembra 2018. godine, Beograd, januar 2019, p. 5: http://www.kznl.gov.rs/latinica/dokumenta.php; 23. Izveštaj o radu Komisije za nestala lica u periodu od 1. januara do 31. decembra 2018. godine, Beograd, januar 2019, p. 9-13: http://www.kznl.gov.rs/latinica/dokumenta.php; 24. Izveštaj o radu Komisije za nestala lica u periodu od 1. januara do 31. decembra 2019. godine, Beograd, februar 2020, p. 7: http://www.kznl.gov.rs/latinica/dokumenta.php; 25. Izveštaj o radu Komisije za nestala lica u periodu od 1. januara do 31. decembra 2019. godine, Beograd, februar 2020, p. 17: http://www.kznl.gov.rs/latinica/dokumenta.php; 26. Izveštaj o suđenjima za ratne zločine u Srbiji tokom 2016. godine, Fond za humanitarno pravo, Beograd, maj 2017, p. 20: http://www.hlcrdc.org/wpcontent/uploads/2017/05/Izvestaj_o_sudjenjima_za_2 016.pdf;
41 The efficiency of mechanisms of institutions of Serbia and Kosovo in finding missing persons from the war in Kosovo between 2016 and 2020
27. Izveštaj o suđenjima za ratne zločine u Srbiji tokom 2017. i 2018. godine, Fond za humanitarno pravo, Beograd, maj 2019, p. 28-29: http://www.hlc-rdc.org/wp- content/uploads/2019/05/Izvestaj-o-sudjenjima-za-ratne-zlocine-u-Srbiji.pdf; 28. Izveštaj o suđenjima za ratne zločine u Srbiji tokom 2017. i 2018. godine, Fond za humanitarno pravo, Beograd, maj 2019, p. 86: http://www.hlc-rdc.org/wp- content/uploads/2019/05/Izvestaj-o-sudjenjima-za-ratne-zlocine-u-Srbiji.pdf; 29. Izveštaji Komisije za nestala lica Vlade Srbije za 2016, 2017, 2018, 2019. godinu: http://www.kznl.gov.rs/latinica/dokumenta.php#; 30. Kancelarija za ljudska i manjinska prava Republike Srbije, Konvencija o zaštiti svih lica od prislinih nestanaka: https://ljudskaprava.gov.rs/sh/node/19859; 31. The Commission for Missing Persons of the Government of Kosovo still does not have a functioning official website. It is not possible to find the reports of this Commission for the period 2016-2020 on the website of the Government of Kosovo. When requested the reports from the Commission, we were told that the summary reports of the Commission are submitted to the Government of Kosovo and that they are publicly available. 32. Kosovo report 2018, Europen Commission: https://ec.europa.eu/neighbourhood- enlargement/sites/near/files/20180417-kosovo-report.pdf; 33. Kosovo report 2019, European Commission: https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/20190529- kosovo-report.pdf; 34. Kosovo report 2019, European Commission: https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/20190529- kosovo-report.pdf; 35. Kosovo report 2020, European Commission: https://ec.europa.eu/neighbourhood- enlargement/sites/near/files/kosovo_report_2020.pdf; 36. Kosovo: Nova Strategija za ratne zločine se suočava sa političkim preprekama, Serbeze Hadžiaj, BIRN, 13. mart 2019: https://balkaninsight.com/2019/03/13/kosovo-nova-strategija-za-ratne-zlocine- se-suocava-sa-politickim-preprekama/?lang=sr; 37. Kosovo: UNMIK’s legacy: The failure to deliver justice and reparation to the relatives of the abducted, Amnesty International, 2013, p. 5: https://www.amnesty.org/download/Documents/16000/eur700092013en.pdf; 38. Kosovo: UNMIK’s legacy: The failure to deliver justice and reparation to the relatives of the abducted, Amnesty International, 2013, p. 5: https://www.amnesty.org/download/Documents/16000/eur700092013en.pdf; 39. Kosovska skupština opet bez kvoruma: Nacrt zakona o vrednostima rata OVK nije izglasan, KosSev, 16. oktobar 2020: https://kossev.info/kosovska-skupstina- opet-bez-kvoruma-nacrt-zakona-o-vrednostima-rata-ovk-nije-izglasan/;
42 The efficiency of mechanisms of institutions of Serbia and Kosovo in finding missing persons from the war in Kosovo between 2016 and 2020
40. Lajčak: Lideri Srbije i Kosova postigli pun napredak u pregovorima, N1, 07. septembar 2020: https://rs.n1info.com/vesti/a637321-miroslav-lajcak-dijalog- beograd-Priština-brisel/ 41. Lica nestala usljed sukoba na Kosovu i njegovih posljedica – Pregled stanja, Međunarodna komisija za nestala lica, Priština, 2017, p. 21: https://www.icmp.int/wp-content/uploads/2017/05/kosovo-stocktaking-report- 2017-bcs-2.pdf; 42. Nacionalna strategija za procesuiranje ratnih zločina, Službeni glasnik Republike Srbije, br. 19/2016, p. 4: https://www.mpravde.gov.rs/vest/12116/- nacionalna-strategija-za-procesuiranje-ratnih-zlocina-.php; 43. Nacionalni konvent o EU, Snimak online diskusije Doprinos Vlade Srbije rešavanju pitanja nestalih iz oružanog sukoba na Kosovu 1998 - 2000, 19. januar 2021: https://www.youtube.com/watch?v=3dsUiTTp7Xw; 44. Nikolić: Tužilac Vukčević da razmisli šta kopa po Srbiji, Ognjen Zorić, Radio Slobodna Evropa, 14. februar 2015: https://www.slobodnaevropa.org/a/nikolic- tuzilac-vukcevic-da-razmisli-sta-kopa-po-srbiji/26849571.html; 45. Online diskusija Doprinos Vlade Srbije rešavanju pitanja nestalih iz oružanog sukoba na Kosovu 1998 - 2000, 19. januar 2021: https://www.youtube.com/watch?v=3dsUiTTp7Xw; 46. Optužnica protiv Tačija, Veseljija, Seljimija i Krasnićija, p. 4-5: https://repository.scp- ks.org/LW/Published/Filing/0b1ec6e98037f0e4/PRILOG%203%20uz%20podne sak%20kojim%20se%20dostavljaju%20korigovane%20i%20javne%20redigova ne%20verzije%20potvr%C4%91ene%20optu%C5%BEnice%20i%20prate%C4 %87ih%20zahteva.pdf; 47. Peti izveštaj o sprovođenju Nacionalne strategije za procesuiranje ratnih zločina, Find za humanitarno pravo, Beograd, decembar 2019, p. 16: http://hlc- rdc.org/wp content/uploads/2019/12/Peti_izvestaj_o_sprovodjenju_Nacionalne_strategije_z a_procesuiranje_ratnih_zlocina.pdf; 48. Poslovnik Skupštine Kosova, Priština, april 2010, p. 51: https://www.assemblykosova.org/Uploads/Data/Files/6/Rr_K_RK_29_04_2010 _3_XRyC2ppcHm.pdf?__cf_chl_jschl_tk__=f54ba0bb16ea244d8643b04d8f951 509a018d12716142717260AakbeV4pie9aZKMos0GqPF76h0HAbvUPREZB5t Ld6OJWnrhxTVGu8jvCbWdPAAj3zOk2zcZiSrA99y95vj8y87m7EB7ht79UK2 EOaYRbaw7Hm4V55XxCTsd0rLOrqmEGQ8AX6ZOpZuos1E6BZzOuzSIk5M PmIcmAEaDToYHEuknbg4wqv7gXxw3ZcrWcxjQh682tJvYzu_3HrpiyUxsuF_ mDh1HQbDFKzPaIU6OEaAZy4Jxhv3tb05CCFNBptXLVvld28Zr47qC44zpva eaBJ3JnUteDJbFwBJ991q3nUHER7XpYanOFm7GB_AQt5LbH2S_PKCKFpr AeQnTXwULdwVw6J8EILYSeBYoLkHqL_Sahcc6QQrgpIIFsZXChnQ;
43 The efficiency of mechanisms of institutions of Serbia and Kosovo in finding missing persons from the war in Kosovo between 2016 and 2020
49. Predlog praktične politike: Potraga za licima nestalim tokom oružanih sukoba na teritoriji bivše Jugoslavije tokom 1990-ih godina, Fond za humanitarno pravo, Beograd, jun 2018, p. 21: http://www.hlc-rdc.org/wp- content/uploads/2018/07/Predlog_prakticne_politike_Potraga_za_nestalima_SR P_stampano_ff_13.07.2018.pdf 50. Predstavljen drugi izveštaj Grupe za nestala lica, Komisija za nestala lica, 18. decembar 2020: http://www.kznl.gov.rs/latinica/aktuelno.php; 51. Preuzeti posmrtni ostaci vojnika stradalog u konfliktu na AP KiM 1999. godine, Komisija za nestala lica, 03. februar 2021: http://www.kznl.gov.rs/latinica/aktuelno.php; 52. Strategija ratnih zločina, Tužilački savet Kosova, Državno tužilaštvo, Priština, februar 2019: https://prokuroriarks.org/assets/cms/uploads/files/Dokumente%20Publikime/KP K/Dokumente%20Strategjike/STRATEGIJA%20RATNIH%20ZLOCINA.pdf; 53. Strategija ratnih zločina, Tužilački savet Kosova, Državno tužilaštvo, Priština, februar 2019, p. 5: https://prokuroriarks.org/assets/cms/uploads/files/Dokumente%20Publikime/KP K/Dokumente%20Strategjike/STRATEGIJA%20RATNIH%20ZLOCINA.pdf; 54. Treći izveštaj o sprovođenju nacionalne strategije za procesuiranje ratnih zločina, Fond za humanitarno pravo, Beograd, decembar 2018, p. 43-44: http://www.hlc-rdc.org/wp- content/uploads/2018/12/Treci_izvestaj_o_sprovodjenju_Nacionalne_strategije_ za_procesuiranje_ratnih_zlocina.pdf 55. Tužilačka strategija za istragu i gonjenje ratnih zločina u Republici Srbiji (2018- 2023), p. 8: http://www.tuzilastvorz.org.rs/upload/HomeDocument/Document__sr/2018- 05/strategija_trz_srb.pdf; 56. Varnava i ostali protiv Turske, presuda Evropskog suda za ljudska prava od 18. septembra 2009. godine: https://advokat-prnjavorac.com/zakoni/Varnava-i- drugi-protiv-Turske.pdf 57. Vodič za porodice nestalih lica na Kosovu: Institucije, process i prava porodica, Međunarodna komisija za nestala lica (ICMP), 2016, p. 15: https://www.icmp.int/wp-content/uploads/2016/12/Serbian-Guide-final- WEB.pdf; 58. Will Serbia and Kosovo Open Up Secret War Archives, Serbeze Haxhiaj and Milica Stojanović, BIRN, 11. avgust 2020: https://balkaninsight.com/2020/08/11/will-serbia-and-kosovo-open-up-secret- war-archives/; 59. Zakon br. 03/L-053 o nadleležnostima, odabiru i raspodeli sudskih predmeta i tužiocima EULEX-a misije na Kosovu, član 8 (Ovlašćenja EULEX tužilaca na Kosovu): https://gzk.rksgov.net/ActDetail.aspx?ActID=2527;
44 The efficiency of mechanisms of institutions of Serbia and Kosovo in finding missing persons from the war in Kosovo between 2016 and 2020
60. Zakon br. 04/L-23 o nestalim licima, čl. 11 (Saradnja sa Komisije sa domaćim i međunarodnim institucijama) : https://gzk.rks- gov.net/ActDetail.aspx?ActID=2765; 61. Zakon br. 04/L-23 o nestalim licima, član 6 tačka 5 i član 10: https://gzk.rksgov.net/ActDetail.aspx?ActID=2765; 62. Zakon br. 04/L-23 o nestalim licima, član 8 : https://gzk.rks- gov.net/ActDetail.aspx?ActID=2765; 63. Zakon br. 05/L -053 o Specijalizovanim većima i Specijalizovanom tužilaštvu, član 13i: https://www.scp-ks.org/sites/default/files/public/05-l-053_s_0.pdf
45
Publisher National Convention on the European Union Working Group for Chapter 35
Authors Nikola Burazer, Centre for Contemporary Politics (CSP) Marko Savković, Belgrade Fund for Political Excellence (BFPE)
Year 2021
The publication was produced within the project “National Convention on the European Union 2020/2021, Chapter 35: Other Issues – Kosovo” financed by the Embassy of the Kingdom of Norway in Belgrade and the Balkan Trust for Democracy of the German Marshall Fund of the United States. The opinions and views expressed in this publication are those of the authors and do not necessarily reflect the official views of the Embassy of the Kingdom of Norway, Serbia, Balkan Trust for Democracy of the German Marshall Fund of the United States, National Conventions on the European Union or the Institute for Territorial Economic Development.
Economic cooperation between Serbia and Kosovo in the context of the regional market
Nikola Burazer, Centre for Contemporary Politics (CSP) Marko Savković, Belgrade Fund for Political Excellence (BFPE)
May 2021
Economic cooperation between Serbia and Kosovo in the context of the regional market
CONTENTS
INTRODUCTION ...... 1
FRAMEWORKS FOR REGIONAL ECONOMIC COOPERATION AND INTEGRATION IN THE WESTERN BALKANS ...... 3
THE ECONOMY AND NORMALISATION OF RELATIONS BETWEEN SERBIA AND KOSOVO ...... 6
TRADE BETWEEN SERBIA AND KOSOVO IN NUMBERS ...... 8
COOPERATION BETWEEN CHAMBERS OF COMMERCE OF SERBIA AND KOSOVO...... 9
CHARACTERISTICS OF TRADE BETWEEN SERBIA AND KOSOVO: CHALLENGES AND PROBLEMS ...... 10
RELATION BETWEEN MINI-SCHENGEN AND OTHER TYPES OF REGIONAL ECONOMIC INTEGRATION ...... 12
CONCLUSION ...... 14
RECOMMENDATIONS ...... 15
LITERATURE ...... 16
Economic cooperation between Serbia and Kosovo in the context of the regional market
ABBREVIATIONS
CEFTA Central European Free Trade Agreement CIF Chamber Investment Forum CRM Common Regional Market DFC International Development Finance Corporation EU European Union MAP REA Multi-annual Action Plan on a Regional Economic Area KCC Kosovo Chamber of Commerce PKS Serbian Chamber of Commerce RCC Regional Cooperation Council REA Regional Economic Area USA United States of America SAA Stabilisation and Association Agreement
Economic cooperation between Serbia and Kosovo in the context of the regional market
INTRODUCTION
Regional cooperation between countries in the Western Balkans is important for the European integration process for several reasons. On the one hand, good neighbourly relations and cooperation with neighbouring countries are an obligation for all countries in the process of accession to the European Union (EU). Because they have in mind the turbulent past of the Western Balkans region, Brussels especially insists on them. Second, harmonisation of regulations and the creation of regional institutions contribute to easier integration of the entire region into the EU, as they represent a way to facilitate the adoption of the Union’s standards and “prepare” for membership in a far larger political and economic organisation. Third, but not least, regional cooperation can contribute to the economic development of the region, which can contribute to faster European integration, but also help achieve other goals of the countries and bring significant benefits to their citizens.
Economic integration is one of the most important forms of regional cooperation in the Western Balkans. It is certainly motivated by political reasons, but also by the need to boost economic development in the region and improve the prospects of reaching the EU’s development level. The creation of a common regional market of almost 20 million citizens and the adoption of common standards harmonised with the EU can provide greater opportunities for economic growth and inclusion in European and global economic flows.
When it comes to relations between Belgrade and Pristina, one of the aspects which has advanced the most is the economic one. It is often passed over - sometimes unjustly, and sometimes consciously, to leave room for businesses to work. Economic cooperation is important; it will not, of course, resolve open political issues (which is the job of political leaders); but some new horizons (communications) can be opened, and tensions reduced.
At the same time, as stated in the study “Improvement of cooperation between the business communities of Serbia and Kosovo”, “the economic systems of Serbia and Kosovo were developing as one subsystem within the unique economic system of the former Yugoslavia.” Therefore (…) there are many similarities and interdependencies of these two economic systems”, which “facilitates business and economic cooperation”. Our economies also have in common “low productivity and competitiveness, a mismatch between labour skills and market demands, a narrow export base, a high rate of informality, insufficiently built and developed infrastructure.”1
Conversations about economic issues became important at a time when the winner of the elections in Kosovo, Albin Kurti, pointed out that (political) dialogue is not among the priorities and that this is supported by the majority of citizens. However, the technical one remains, and within it, economic cooperation, and especially cooperation between chambers
1 Nenad Đurđević i Dušan Janjić (ur.), 2020, „Unapređenje poslovne saradnje Srbije i Kosova: izveštaj i preporuke“, Beograd: Forum za etničke odnose, p. 23
1 Economic cooperation between Serbia and Kosovo in the context of the regional market
of commerce have an important place from the beginning. At the same time, the issue of perspectives of cooperation in the context of regional economic integrations is opened, whether it is the “Mini-Schengen” process or the establishment of the Common Regional Market (CRM).
2 Economic cooperation between Serbia and Kosovo in the context of the regional market
FRAMEWORKS FOR REGIONAL ECONOMIC COOPERATION AND INTEGRATION IN THE WESTERN BALKANS
The necessity of regional cooperation can easily explain the existence of a large number of initiatives for regional economic cooperation of the Western Balkan countries, some of which should be especially mentioned. One of the most important formats of economic cooperation is the Central European Free Trade Agreement (CEFTA), which the Western Balkans joined in 2006 and 2007.2 CEFTA’s goals include consolidating trade liberalisation in the region in a single agreement, eliminating barriers and facilitating the movement of goods and services, as well as improving the conditions further to promote investment.3 The Regional Cooperation Council (RCC) was established in 2008 by the countries of the Western Balkans, Croatia, Greece, Bulgaria, Romania and Turkey as the first international organisation led by the countries of Southeast Europe themselves. RCC aims to foster regional cooperation, implement regional programs aimed at economic and social development, and remove obstacles to increased mobility, connections and competitiveness in Southeast Europe.4 As we will see, RCC also has an important role in implementing other initiatives relevant to the region, including various programs within the Berlin Process.
The Berlin Process, launched in 2014 at the proposal of German Chancellor Angela Merkel, was an initiative of individual EU member states to boost the European integration process of the Western Balkans at a time when it was clear that their EU membership was at least a few years away. The main goal of the Berlin Process was infrastructural connection of the countries of the Western Balkans, both with the EU and with each other, but over the years, this initiative has received new contents. Already in 2015, the issue of bilateral disputes became a part of the Berlin Process, and the Berlin Process Summit in Trieste in 2017 had a strong component of economic integration. The Chamber Investment Forum of the Western Balkans (WB6)5 was established then, the establishment of the Transport Community was agreed upon, as well as, most importantly, the creation of the Regional Economic Area (REA).6 The Multi-annual Action Plan (MAP REA) was also adopted, which would create a single economic space in the Western Balkans in which the “four freedoms” on which the EU is based would be implemented: (freedoms of movement) of goods, capital, services and labour. The Action Plan envisages four areas of economic integration: (integration of) trade, creation of a dynamic space for investment, facilitation of regional mobility and creation of a digital integration agenda (“digital agenda”). The Action Plan is based on the obligations arising from CEFTA and the Stabilization and Association Agreement (SAA) of individual countries of the Western Balkans, and it envisages that the obligations will be fulfilled
2 Apart from the Western Ballkans countries, Moldavia is also a member of CEFTA, whereas Romania, Bulgaria and Croatia left it after they joined the Eureopan Union. 3 Zakon o potvrđivanju sporazuma o izmeni i pristupanju sporazumu o slobodnoj trgovini u Centralnoj Evropi – CEFTA 2006, available at https://www.carina.rs/cyr/Medjunarodni%20sporazumi/SporazumCEFTA.pdf 4 “About us”, Regional Cooperation Council, available at https://www.rcc.int/pages/2/about-us (accessed on 17 March 2021) 5 See more at https://www.wb6cif.eu/ (accessed on 18 March 2021) 6 See more at https://ec.europa.eu/commission/presscorner/detail/hr/MEMO_17_1967 (accessed on 18 March 2021
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between 2017 and 2023. RCC was given the task of monitoring and reporting on the implementation of the Action Plan.7
Of all the initiatives for regional cooperation in the Western Balkans, the most media attention was caused by the so-called “Mini-Schengen”, which was announced in October 2019 in Novi Sad by the President of Serbia Aleksandar Vučić, the Prime Minister of Albania Edi Rama and the Prime Minister of Northern Macedonia Zoran Zaev. This initiative, as well as the previously mentioned Action Plan for the Regional Economic Area, envisages ensuring the “four freedoms” of the EU in the Western Balkans: the movement of goods, capital, services, and labour. However, unlike the mentioned initiative within the Berlin Process, the “Mini-Schengen” is originally a “local” project, announced by the countries of the Western Balkans without any participation of the European Union (and at that time with the support of the Trump’s administration). With an attractive and understandable name that is associated with the well-known “Schengen Area”, but without a clearly elaborated concept and action plan, Mini-Schengen quickly overshadowed all other forms of regional economic integration.
Another big difference between Mini-Schengen and other initiatives is that it was initiated by only three countries in the Western Balkans: Serbia, Albania, and Northern Macedonia. Although it was already announced during the signing of the declaration in Novi Sad that the invitation to join this initiative was open to everyone in the Western Balkans, the inclusion of new members was not easy. After the initial positive signals and the participation of the Chairman of the Council of Ministers of BiH Denis Zvizdić and the Minister of Economy of Montenegro Dragica Sekulić8 at the meeting in Ohrid in November 2019, and then the President of Montenegro Milo Đukanović in Tirana in December, Montenegro and Bosnia and Herzegovina remained outside of this initiative.
The issue of including Kosovo in the Mini-Schengen, however, has been controversial from the beginning. After the first meeting in Belgrade in October 2019, the then President of Kosovo Hashim Thaçi wrote that Serbia had deliberately neglected Kosovo in this regional initiative, and that Kosovo was only interested in EU and NATO membership, but not in “any regional initiative that should replace that.”9 However, Albania has strongly advocated for Kosovo’s participation in the Mini-Schengen, and Foreign Minister Gent Cakaj has even announced that Albania will abandon the initiative if Kosovo is denied an invitation.10
7 „Consolidated Multi-annual Action Plan for a Regional Economic Area in the Western Balkans Six“, Jul 2017, available at https://www.rcc.int/docs/383/multi-annual-action-plan-for-a-regional-economic-area-in-the-western-balkans-six 8 The fact that Montenegro sent a minister, and not the Prime Minister or the President, , to the first meeting, speaks of the fact that this country entered the whole idea with caution. 9 Emina Muminović, 22. novembar 2019, „Mini-Schengen: Hand in hand with the EU integration process, or its replacement?“, European Western Balkans, https://europeanwesternbalkans.com/2019/11/22/mini-schengen-hand-in-hand-with-the-eu-integration-process-or-its- replacement/ (accessed on 18 March 2021) 10 Albania will withdraw from “mini-Schengen” if Kosovo is not included, European Western Balkans, 23. oktobar 2019, https://europeanwesternbalkans.com/2019/10/23/albania-will-withdraw-from-mini-schengen-if-kosovo-is-not-included/ (accessed on 18 March 2021)
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Interestingly, this soon led to a dispute between Tirana and Priština. While Albanian Prime Minister Edi Rama insisted that it was in Kosovo’s interest to be part of the “Mini-Schengen” initiative, warning that Kosovo did not need “self-isolation”, the authorities in Priština had a different position. The new Prime Minister of Kosovo, Albin Kurti, insisted that regional cooperation should exist within the Berlin Process (and thus, further development of the REA, i.e., the common market), while Prime Minister Rama remained one of the strongest advocates of this initiative.
Western partners welcomed the work on the “Mini-Schengen”, but reactions in the region were occasionally very strong, including accusations that this process sought to create a “Greater Serbia” or a “Greater Albania”. It is interesting, however, that no one asked these questions when REA was agreed within the Berlin Process, which tells us that “Mini- Schengen” became part of daily politics in a way that the Berlin Process and other regional initiatives were not. We believe that the reason is that this is a “leadership process” whose owners are the actors in the region, primarily President Vučić and Prime Minister Rama. This is also an important lesson on trust in the region: if the initiative comes from the EU, an agreement is (relatively) easy to reach, but if something is proposed by the actors (“leaders”) in the region, the issue is immediately politicized. On the other hand, it is reasonable to assume that a certain policy, decision, or measure is easier to “push through the system” if the highest representatives of the political power are behind it. The risk is that the cooperation then depends on the development of their (even personal, and not only state) relations.
5 Economic cooperation between Serbia and Kosovo in the context of the regional market
THE ECONOMY AND NORMALISATION OF RELATIONS BETWEEN SERBIA AND KOSOVO
“Placed down” to the level of daily politics, Kosovo’s participation in the “Mini-Schengen” is thus linked to the unresolved dispute between Belgrade and Priština regarding the status of Kosovo and all other problems that arose from it. The dialogue facilitated by the EU since March 2011 was suspended in November 2018 when the Priština authorities introduced 100% customs duties on goods from Serbia and Bosnia and Herzegovina (BIH), and while they were in force, the dialogue between Belgrade and Priština could not be continued.
The issues of economic cooperation and economic integration were not in the focus of the dialogue between Belgrade and Priština, but several agreements had an important economic dimension, from the one on integrated border management (administrative line), through the agreement on customs stamps, to the agreement on regional cooperation and representation. Economic cooperation, however, was discussed in other formats, including, primarily, the parallel11 dialogue between Serbia and Kosovo facilitated by the United States of America (USA), and during the mandate of Richard Grenell as President Trump’s special envoy.
The introduction of 100% customs duties by the government in Priština has certainly damaged both the normalisation process and economic cooperation. The final price of the introduction of the tax was paid by both exporters from Serbia and consumers in Kosovo, by raising the price of products by 5.4% (a study by the GAP institute).
In a period of non-existence of dialogue and uncertainty about its continuation, Trump’s administration has insisted on economic issues as key to achieving normalisation of relations between the two sides. The newly appointed special envoy for peace negotiations between Serbia and Kosovo, Richard Grenell, the former US ambassador to Berlin, soon took the initiative to return the two sides to the negotiating table, focusing on economic topics.
With Grenell’s mediation, in January 2020, the representatives of Serbia and Kosovo signed a letter of intent on the establishment of the Belgrade-Priština airline route12 in Berlin, and soon after, in February 2020, at the Munich Security Conference, they signed a letter of intent to establish railway and road connection.13 Political instability in Kosovo and the coronavirus pandemic have delayed further steps in this regard. After the fall of Kurti’s government, representatives of the two sides were invited to Washington for a meeting in the White House.
11 The wording “parallel process” is not too strict, if we take in consideration numerous views of both the officials of the leading EU members and the envoy Lajcak himself - after the change of administration in America. Despite individual efforts, there was no real coordination on the Kosovo issue between USA and the EU in 2019 and 2020, and everyone followed their own agenda. 12 Potpisan sporazum sa Lufthanzom o obnovi linije Beograd-Priština, N1, januar 2020, https://rs.n1info.com/biznis/a562180-potpisan- sporazum-sa-lufthansom-o-obnovi-linije-beograd-pristina/ (accessed on 18 March 2021) 13 Potpisane izjave o namerama za železničku vezu i autoput Beograd-Priština, N1, februar 2020, https://rs.n1info.com/biznis/a569276- potpisane-izjave-o-namerama-za-zeleznicku-vezu-i-auto-put-beograd-pristina/ (accessed on 18 March 2021)
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Although this meeting was postponed due to the resignation of President Thaçi, President Vučić and Prime Minister Hoti met with Trump in the “Oval Room” on September 4.
The Washington Agreement signed on this occasion was seen primarily as part of President Trump’s election campaign, it did not touch on the most sensitive political issues and contained certain elements that apparently had nothing to do with the Belgrade-Priština dispute. However, it also contained several provisions of importance for the economic relations between Serbia and Kosovo, and in that respect, it represented the “crown” of Grenell’s activities as a special presidential envoy.
The agreement between the two sides expresses readiness to continue the process of economic normalisation, primarily through the implementation of the agreement on air, road and rail connections agreed in early 2020, but also to cooperate with the US International Development Finance Corporation (DFC). The DFC had an important role to play in implementing the various infrastructure projects necessary to establish these links, as well as in supporting SMEs. The agreement also envisages the establishment of a DFC office in Belgrade, mutual recognition of diplomas, as well as cooperation with American institutions for the purpose of a feasibility study on the use of the Lake Gazivode. Finally, the Washington Agreement envisages the accession of Kosovo (and Serbia) to the “Mini- Schengen” initiative.14
Shortly after the agreement was signed, the US DFC opened an office in Belgrade, and the two chambers of commerce signed a joint statement stressing support for improving economic relations, welcoming the DFC’s presence in the region, and announcing the formation of a joint economic cooperation team to support economic normalisation. The statement also supported the “Mini-Schengen” initiative as a step towards stability and prosperity in the region.15
14 Tekst sporazumâ nazvanih "Ekonomska normalizacija", Vreme, septembar 2020, https://www.vreme.com/cms/view.php?id=1820080 15 Šta predviđa Zajednička izjava PKS i kosovske komore, Politika, septembar 2020, http://www.politika.rs/sr/clanak/463014/Sta-predvida- Zajednicka-izjava-PKS-i-kosovske-komore
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TRADE BETWEEN SERBIA AND KOSOVO IN NUMBERS
The public focus on sensitive political issues sometimes leads to overlooking the fact that there is significant trade between Serbia and Kosovo, which is of great importance for both economies. Thanks to the membership of Serbia and Kosovo in CEFTA, but also cooperation through various regional and bilateral mechanisms, mutual trade has been on an upward path until the introduction of 100% customs duties by the Kosovo government in November 2018.
Serbia’s exports to Kosovo increased every year from 2012 to 2017, when they amounted to EUR 439.5 million, i.e., a total of 3% of Serbia’s exports and 15% of Kosovo’s imports for that year. The introduction of customs in November affected the results for 2018, when exports amounted to EUR 412.2 million, and then in 2019 it amounted to only EUR 84.7 million. After the customs duties were abolished, Serbia’s exports again drastically increased in 2020 to EUR 251.7 million, or 1% of total Serbian exports, which is again significantly less than in the years before the introduction of customs duties. Given the continuous growth until 2018, as well as the growth of total exports of Serbia in recent years, it is reasonable to assume that these results would have been twice as good if customs had not heavily affected the trade.16
Serbia has a significant trade surplus with Kosovo, i.e., in recent years it has exported ten to twenty times more than it imports from Kosovo. It is interesting that during the entire period from 2017 to 2020, regardless of the introduction of customs duties, Kosovo’s exports to Serbia remained at a stable level and in 2020 amounted to EUR 25.4 million, or almost exactly ten times less than Serbia’s exports to Kosovo. Although at first glance it seems that Kosovo’s exports to Serbia are not of great importance because of this, it is important to note that Kosovo’s exports to Serbia accounted for as much as 7% of Kosovo’s total exports in 2019.17
As for the type of goods that are traded, Serbia’s exports to Kosovo are diverse. According to the 2017 data, the most represented exported goods are food and animals (25%), industrial goods (22%), mineral fuels and lubricants (13%) chemical products (13%), while beverages and tobacco, machinery and means of transport are underrepresented. On the other hand, Kosovo exports to Serbia mostly mineral fuels and lubricants (as much as 62%), as well as industrial goods (13%), while all other types of products are much less represented.18
16 Statistics on the trade between CEFTA economies can be found at https://statistics.cefta.int/goods 17 Ibid. 18 Ibid.
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COOPERATION BETWEEN CHAMBERS OF COMMERCE OF SERBIA AND KOSOVO
In strong contrast to daily politics, cooperation between the chambers of commerce of Serbia and Kosovo has yielded significant results over the past few years. In 2013, an agreement on cooperation between the Serbian Chamber of Commerce (PKS) and the Kosovo Chamber of Commerce (KCC) was signed in Brussels, and in 2015, KCC became a member of the European Chamber of Commerce with the approval of the Serbian side.19 The two chambers worked together to remove obstacles to free trade, connect businesses from Serbia and Kosovo to find new partners and markets, and launch regional initiatives such as the mentioned Joint Chamber of Commerce of the Western Balkans, established under the Berlin Process. Before the introduction of customs duties in 2018, 150 businesses from Serbia participated in the trade fair in Priština, while Kosovo businesses participated in similar events in Serbia.20
Especially important for understanding the cooperation and trade between Serbia and Kosovo is the PKS research, which was led by the Forum for Ethnic Relations in 2018 and 2019, as part of the project of support for chamber cooperation supported by the European Union (EU). The Forum’s researchers spoke with company representatives directly, as well as at meetings held in regional chambers of commerce. These were companies of different sizes - 70 of them (of which 40 in Serbia, 30 in Kosovo; and of those 30, five located in Serbian areas, and not only in the north). The authors of the research made sure to include the companies from Sandžak, Bujanovac and Preševo. It was common for all of them to operate on the markets of Serbia and Kosovo. Special emphasis was given to freight forwarders, who, due to the nature of their activities, are among the most active business entities on both sides of the administrative line.
The companies, of course, are driven by interest, the possibility of earning money in the neighbouring and close market, which they have learned well for the past 20 years (and some even more; some are building success on brand recognition since the time of Yugoslavia). Serbia’s interest could not be clearer when taxes were introduced in November 2018; Kosovo represents a market of half a billion euros a year.
What do our companies sell in Kosovo? Those are still mostly food products. When the taxes were introduced, producers from the surrounding regions (primarily Croatia, but also Slovenia, and Northern Macedonia) tried to compensate for the presence of Serbian producers. We all remember that at that time, the implementation of the law started that obliged retailers in Kosovo to display the flags (of the countries) of origin of products; so replacement products, often of lower quality, were quickly sought.
19 „Srbija i Kosovo: Privreda kao primer“, Deutsche Welle, jul 2020, https://www.dw.com/sr/srbija-i-kosovo-privreda-kao-primer/a- 54039863 (accessed on 10 March 2021) 20 „Čadež: Ekonomska saradnja Srbije i Kosova u usponu“, Beta, april 2018, https://beta.rs/podcast/dijalog-politika/88505-cadez-ekonomska- saradnja-srbije-i-kosova-u-usponu (accessed on 10 March 2021)
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CHARACTERISTICS OF TRADE BETWEEN SERBIA AND KOSOVO: CHALLENGES AND PROBLEMS
After the fees were abolished, in just a few months, the trade returned to 70% of what it had been before; the companies kept in touch and regained the market relatively quickly and to a large extent. In the meantime, the desire has developed to cooperate not only through trade, and this “positive pressure” is somewhat more pronounced among companies registered in Serbia.
Problems and obstacles are numerous. Let us show the following examples. Since the entry into force of the energy agreement, Serbia and Kosovo can no longer trade in electricity, because they do not recognize each other’s licenses. Therefore, the power network of Kosovo can no longer be transit if, say, trade is conducted with Albania.
Then there are several problems that make life difficult for carriers: from the fact that Kosovo is not in the ADR system (carriage of dangerous goods), and you must have a licensed driver and vehicle in order for such goods to be transported; then, the goods of animal and plant origin from Albania intended for Serbian market cannot transit through Kosovo; the fact that Bosnia and Herzegovina does not recognize Kosovo, which makes any trade between them very difficult; to (non) recognition of license plates. In all this, according to our interlocutor, “an ordinary business cannot cope” and that is why the role of chambers of commerce (of Serbia and Kosovo) is of great importance - they are the ones looking for solutions.
The “technical dialogue” between chambers of commerce operates on an equal basis, and it is the economy that “dictates” topics - from defining the forms with the text that is status- neutral, through standardization, to arbitration as a way of resolving disputes. In their work, the chambers include experts from various institutions. The EU has long recognized this and is helping their work; some of the key issues, such as the mentioned phytosanitary certificate, have been harmonized in Brussels.
An interesting and insufficiently researched issue concerns the possibility of investing from Serbia to Kosovo, or from Kosovo to Serbia. Even if we leave politics aside (which, in the end, is impossible), the fundamental problem is a weak investment climate in Kosovo. The privatization carried out there “is not one of the successful practices” because “it did not contribute to sustainable economic development”, and “numerous unresolved issues on property rights” remained.21 Partly due to the open status issue, Kosovo is not included in international value chains, which also discourages potential investors.
21 Đurđević i Janjić (ur.), 2020, p. 19
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At the moment, it seems more realistic for a larger company from Serbia - for example, in the same food industry - to try to open a production plant in Kosovo. Raspberries that are further exported are also procured in Kosovo; Štrpce is an example of a community where this business is very developed. The “Soul of Metohija” program, launched several years ago, can also serve as one of the examples of importing. The opportunity is also in the expected change in consumer habits after the pandemic, where they will look to replace products coming from distant destinations with those from the region. As these are business entities registered in Kosovo, it becomes part of the “value chain” of regional trade and exchange.
Intensifying cooperation in the future could contribute to the reduction of unemployment, which is (in the Western Balkans) record high and is around 30% of the working age population. Kosovo is in deficit when it trades with Serbia, but that is the reality in economic relations with practically everyone, and a reflection of the structure (weakness) of the local economy.22
On the other hand, one of the main problems Kosovo’s economy is facing is capacity: companies there cannot produce enough to appear “on the shelves” here. Another problem is that our market is simply not open for some of their leading products (pressure from local producers). Furthermore, while at least in principle it is not a problem for a company from Serbia to appear on the market in Kosovo and participate in a tender, their company cannot participate here, because Serbia does not recognize the documents they submit. And businesses react to any relief of the government, where we will recognize each other’s documents, and not restrict access.
22 In December 2019, foreign trade deficit amounted to 12.7% or EUR 308.3 million, and in the same period last year to EUR 273.5 million. Cited in: Đurđević i Janjić (ur.) 2020, p. 18
11 Economic cooperation between Serbia and Kosovo in the context of the regional market
RELATION BETWEEN MINI-SCHENGEN AND OTHER TYPES OF REGIONAL ECONOMIC INTEGRATION
An important question that we did not answer concerns the relation between “Mini-Schengen” and other forms of regional economic integration, primarily the Berlin Process and the REA, the creation of which is envisaged within it.
The “Mini-Schengen” initiative has not had too many concrete results in a year and a half since the first meeting in October 2019. Albania and North Macedonia reached an agreement on the recognition of phytosanitary certificates in April 2020, at the end of 2020 Serbia and Albania made it possible to travel between the two countries with ID cards, and all three countries agreed to cooperate in fighting the coronavirus pandemic, including free travel without PCR tests, and covering the patients’ treatment costs. Still, the “Mini-Schengen”, like a wake-up call, unlocked cooperation within CEFTA, which was blocked due to the introduced taxes; it then accelerated regional processes in terms of integrating the region into a common regional market (through a summit in Sofia). REA did not show more visible results as well; the phasing out of roaming among countries in the region is perhaps the most tangible success.23
Cooperation between the economies of Serbia and Kosovo was supposed to be facilitated by (ongoing) processes of regional economic integration. It is no longer certain that this will be the case, since Kurti and his associates are against the “Mini-Schengen”; and the leaving Hoti administration warned what Belgrade should do before Priština fully stands behind the idea (on the other hand, it seems that Montenegro and BiH are now more ready to join than last year). Finally, it is not clear what will be the measure of interest and support of the United States now. Recently, discussions about the further role of the newly opened office of the DFC in Belgrade - which seemed to be the most concrete achievement of the “Washington Agreement” (in addition to the agreement on investment incentives) - attracted considerable attention. As a reminder, DFC was supposed to support some of the strategically important projects - highway, railway (intended primarily for freight transport), and guarantee funds for businesses and farmers - by attracting private, and not only state, sources of financing.
This leaves the second initiative, a common market of the region, which is implemented with the active role of the Regional Cooperation Council and the EU itself. It is not a competition to “Mini-Schengen”, but, for now, it seems acceptable to everyone. It was agreed at the Berlin Process Summit held in Sofia in November 2020 and represents an improvement on the REA concept. On that occasion, an action plan for the period 2021-2024 was adopted, which would ensure “four freedoms” in the Western Balkans. The Regional Cooperation Council (RCC),
23 Mini-Schengen, Regional Economic Area and Common Regional Market: What is what?, European Western Balkans, decembar 2020, https://europeanwesternbalkans.com/2020/12/15/mini-schengen-regional-economic-area-and-common-regional-market-what-is-what/ (accessed on 10 March 2021)
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however, also makes clear the connection between the new initiative and Mini-Schengen, arguing that “Mini-Schengen has brought political dynamics, focused mainly on key areas of the REA, and suggested a couple of practical interventions that are now fully integrated into CRM”.24 The topics of the “Mini-Schengen” – “four freedoms” “released” through regulations and standards that have been harmonized - are also present here in the form of a continuation of the action plan, which was adopted at the summit in Sofia in November 2020. These are issue related to everyday life, concerning labour market, faster border crossing, paperless procedures. There is a lack of workers, of more offers in tenders, and predictability that businesses need so much. That is why it is necessary to “communicate” both processes completely.
Due to all this, it is difficult to make a clear distinction between “Mini-Schengen” and other initiatives for regional economic integration within the Berlin Process. Instead, it is better to focus on the very goals proclaimed by the “Mini-Schengen”: achieving freedom of movement of goods, capital, services, and labour. In what format it will be realised, it may be less important.
One way to design further directions of regional connection is again sought through the cooperation of chambers and the input of the profit sector: in November 2020, the Business Council of the Western Balkans Chamber Investment Forum (CIF WB6) was formed as an advisory body of owners or top managers of 16 leading business systems operating in the Western Balkans. The tasks of the Council are to initiate and propose various solutions to governments in the region in order to establish a more competitive and stimulating regional business environment; to monitor implementation and assess progress in establishing a common regional market; and to promote direct dialogue between the Western Balkans business community and EU decision-makers, which would enable faster integration into the EU single market, through an “inclusive approach” to enlargement.
24 Ibid.
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CONCLUSION
Regional cooperation is an obligation for all countries in the process of EU accession in the Western Balkans, but also a great opportunity for economic development of the region. Regional economic integration as one of the most important forms of regional cooperation can bring concrete benefits for the entire region, but also facilitate the process of accession to the European Union. The fact that initiatives for regional economic integration come from both the European Union and the countries in the Western Balkans speaks of the existence of political will and relatively favourable conditions for the realization of initiatives such as Mini-Schengen or the Common Regional Market focused at “four freedoms” of the European Union. Therefore, this opportunity should be used and make a stronger commitment to regional economic integration in the coming years.
The dispute between Belgrade and Priština over the status is a significant challenge for the European perspective of Serbia and Kosovo, but also for the entire region. However, economic relations between Serbia and Kosovo and the potential for their further improvement speak of the importance regional economic integration can have for the development of both economies. Bilateral economic cooperation, primarily through the cooperation of chambers of commerce, has already shown certain results and should be continued regardless of significant political obstacles. On the other hand, regional economic integration at the level of the Western Balkans would further enhance bilateral economic relations between Serbia and Kosovo, bypassing some of the obstacles imposed by the disputed status issue.
We should not forget that cooperation in economic issues and the removal of obstacles to mutual trade can also have positive effects on political dialogue. The existing mistrust between Belgrade and Priština, but also the significant ethnic distance between Serbs and Albanians, certainly have negative consequences on the possibility of achieving political solutions. On the other hand, the development of trade and the removal of obstacles to free movement of people, goods, capital, and services could make a significant contribution to the normalization of relations, but also make the lives of citizens of Serbia and Kosovo much easier, as they are certainly heavily affected by the existing political disputes.
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RECOMMENDATIONS
1. Commit to the development of regional economic integration in the Western Balkans as a way to accelerate economic development and improve the so-called “European perspective” of the region. 2. Institutionalise the “Mini Schengen” by introducing its achievements “horizontally” through three of the four mentioned pillars or dimensions - investments, mobility in the region and the digital agenda (Prof. Gordana Đurović); and thus “reconcile” with the common regional market (CRM). 3. At the same time, develop a mechanism to measure progress in the implementation of the agreed points. 4. Separate the issues of economic relations from the dispute between Belgrade and Priština over the status. Economic cooperation is not only in the interest of both parties but can make a long-term contribution to the normalization of relations. 5. Fully implement technical agreements reached between Belgrade and Priština, which relate to - crossing points; documents; license plates. 6. Continue the technical dialogue between the chambers and experts with the facilitation of Brussels and improve cooperation between the two institutions. 7. In cooperation with the EU and the Quint countries, see whether the scenario of introducing the so-called reciprocity that would certainly harm economic exchange could be avoided by agreement. 8. Fully implement the decisions and operational measures adopted within CEFTA. 9. Remove obstacles to businesses participating in tenders conducted by the other side. 10. As a gesture of good will, or simply a continuation of the started cooperation, continue with guest appearances and exhibitions of companies at fairs organised by the other side.
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LITERATURE
Beta. 24 April 2018. „Čadež: Ekonomska saradnja Srbije i Kosova u usponu“. https://beta.rs/podcast/dijalog-politika/88505-cadez-ekonomska-saradnja-srbije-i-kosova-u- usponu
Deutsche Welle. 3 July 2020. „Srbija i Kosovo: Privreda kao primer“. https://www.dw.com/sr/srbija-i-kosovo-privreda-kao-primer/a-54039863
European Western Balkans. Albania will withdraw from “mini-Schengen” if Kosovo is not included. 23 October 2019. https://europeanwesternbalkans.com/2019/10/23/albania-will- withdraw-from-mini-schengen-if-kosovo-is-not-included/
Muminović, Emina. 15 December 2020. “Mini-Schengen, Regional Economic Area and Common Regional Market: What is what”. https://europeanwesternbalkans.com/2020/12/15/mini-schengen-regional-economic-area-and- common-regional-market-what-is-what/
Muminović, Emina. 22 November 2019. „Mini-Schengen: Hand in hand with the EU integration process, or its replacement?“. European Western Balkans. https://europeanwesternbalkans.com/2019/11/22/mini-schengen-hand-in-hand-with-the-eu- integration-process-or-its-replacement/
N1. 20 January 2020. „Potpisan sporazum sa Lufthanzom o obnovi linije Beograd-Priština“. https://rs.n1info.com/biznis/a562180-potpisan-sporazum-sa-lufthansom-o-obnovi-linije- beograd-pristina/
N1. 14 February 2020. „Potpisane izjave o namerama za železničku vezu i autoput Beograd- Priština“. https://rs.n1info.com/biznis/a569276-potpisane-izjave-o-namerama-za-zeleznicku- vezu-i-auto-put-beograd-pristina/
Nenad Đurđević i Dušan Janjić (ur.) 2020. „Unapređenje poslovne saradnje Srbije i Kosova: izveštaj i preporuke“. Beograd: Forum za etničke odnose.
Politika. 22 September 2020. „Šta predviđa Zajednička izjava PKS i kosovske komore“. http://www.politika.rs/sr/clanak/463014/Sta-predvida-Zajednicka-izjava-PKS-i-kosovske- komore
Regional Cooperation Council. 12 July 2017. „Consolidated Multi-annual Action Plan for a Regional Economic Area in the Western Balkans Six“. https://www.rcc.int/docs/383/multi- annual-action-plan-for-a-regional-economic-area-in-the-western-balkans-six
16 Economic cooperation between Serbia and Kosovo in the context of the regional market
The European Commission. 12 July 2017. „Western Balkans: Regional Economic Area“. https://ec.europa.eu/commission/presscorner/detail/hr/MEMO_17_1967
Vreme. 10 September 2020. Tekst sporazuma nazvanih “Ekonomska normalizacija”. https://www.vreme.com/cms/view.php?id=1820080
Law on Ratification of the Agreement on Amendments and Accession to the Central European Free Trade Agreement – CEFTA 2006.
Websites: https://www.wb6cif.eu/ https://www.transport-community.org/ https://www.rcc.int/pages/2/about-us https://statistics.cefta.int/goods
17 18
Publisher National Convention on the European Union Working Group for Chapter 35
Authors Stefan Surlić, CISBalk Igor Marković, NGO AKTIV
Year 2021
The publication was produced within the project “National Convention on the European Union 2020/2021, Chapter 35: Other Issues – Kosovo” financed by the Embassy of the Kingdom of Norway in Belgrade and the Balkan Trust for Democracy of the German Marshall Fund of the United States. The opinions and views expressed in this publication are those of the authors and do not necessarily reflect the official views of the Embassy of the Kingdom of Norway, Serbia, Balkan Trust for Democracy of the German Marshall Fund of the United States, National Conventions on the European Union or the Institute for Territorial Economic Development.
Property rights in Kosovo within the comprehensive normalisation of relations between Belgrade and Priština
Stefan Surlić, CISBalk Igor Marković, NGO AKTIV
May 2021
Property rights in Kosovo within the comprehensive normalisation of relations between Belgrade and Priština
CONTENTS
INTRODUCTION ...... 1
DEFINING PROBLEMS AND CHALLENGES IN EXERCISING PROPERTY RIGHTS ...... 2
HOW MANY UNRESOLVED CASES ARE THERE ...... 4
ORIGIN OF DIFFERENT MODALITIES OF JEOPARDISING PROPERTY RIGHTS ...... 6
EXAMPLES OF DIFFICULTIES IN EXERCISING PROPERTY RIGHTS ...... 7
KPCVA – KOSOVO PROPERTY COMPARISON AND VERIFICATION AGENCY ...... 11
KPCVA’S JURISDICTION AND COURT DECISIONS ...... 15
RECOMMENDATIONS ...... 16
LITERATURE ...... 17
Property rights in Kosovo within the comprehensive normalisation of relations between Belgrade and Priština
INTRODUCTION
Property rights have been the subject of the dialogue between Belgrade and Priština on several occasions. However, as is the case with most challenges of normalisation of relations, the status dispute and two distinctly opposing positions in the approach and manner of resolving open issues is also reflected on the property rights. Representatives of Belgrade point out that the topic of property rights includes four dimensions: private property of Serbs, property of the Serbian Orthodox Church, property of private entities registered in the territory outside of Kosovo and property owned by Serbia in the territory of Kosovo. Belgrade points out that Serbia lays claim to ownership of large companies, mines, and factories in which it has invested for decades. On the other hand, Priština, referring to the provisions of Ahtisaari’s plan, rejects Serbia’s right to state and social property, emphasizing that private property of individuals, as well as the Serbian Orthodox Church, can be protected in regular proceedings before various institutions established in Kosovo after the conflict.
The intention of this analysis is to point out systemic neglect, and in certain cases obstruction of the realisation of one of the basic human rights, through the actions of the competent institutions so far, the experiences of people who have dealt with the protection of property rights, as well as the testimonies of individuals whose right to property is jeopardised. Also, the analysis offers concrete recommendations in order to solve the issue of property in the process of comprehensive normalisation, and at the same time permanently save it from the framework of institutional blockade or systemic ethnic discrimination.
1 Property rights in Kosovo within the comprehensive normalisation of relations between Belgrade and Priština
DEFINING PROBLEMS AND CHALLENGES IN EXERCISING PROPERTY RIGHTS
An agreement was reached within the dialogue between Belgrade and Priština, which implies the establishment of a reliable property register in Kosovo. “Working Conclusion of the Tripartite Group for Implementation in the Field of Cadastral Data” is the official name of the agreement reached on 20 October 2011 between the two parties with the facilitation of the European Union. According to this agreement, Belgrade is obliged to return the records to Priština, however, according to the allegations of the KPCVA representatives, the cadastral data have not been returned to date.1
According to BIRN, institutions in Priština are waiting to receive scanned cadastral documents from Serbia through the EU office in Kosovo. The agreement envisions the return of more than 4.6 million copies of cadastral documents taken by Serbian representatives from Kosovo in 1999, which could resolve the discrepancy between the original documents from the earlier period and those currently in Kosovo.2
As part of the “technical dialogue”, mechanisms for determining property ownership have been agreed. However, the former head of the negotiating team, Borko Stefanović, points out that they have never become operational, and that, on the expert level, they must continue to insist on resolving the property rights of Serb citizens in Kosovo whose property has been usurped.3
The establishment of the Kosovo Property Comparison and Verification Agency (KPCVA) is a direct result of the Agreement on the Return of Cadastral Records reached between Belgrade and Priština during the 2011 technical dialogue, but there was a delay in adopting the law on the establishment of the Agency, which only in 2016 received a normative foundation for its operation.
In a 2019 interview BIRN did with Florije Kika, deputy director of the Kosovo Property Comparison and Verification Agency, it was pointed out that thousands of property disputes are stuck in courts and that their resolution depends on the expected data. Kika stressed that the Agency requested the return of indexed copies of property registration documents, not just scanned ones, because “indexing would help us obtain information on the origin of each property,” since cadastral registration in Serbia could be subject to change, and there is a possibility of different records in the two cadastres.4
1 An interview with Shkelzen Bajraktari, Acting Head of Information Unit of KPCVA 2 Filip Rudić & Serbeze Haxhiaj, „Izgubljena imovina na Kosovu: nestala evidencija odlaže pravne bitke“, BIRN, 03.04.2019. 3 Ljudmila Cvetković, „Čija je imovina na Kosovu?“, Radio Slobodna Evropa 17. septembar 2020. 4 Filip Rudić & Serbeze Haxhiaj, „Izgubljena imovina na Kosovu: nestala evidencija odlaže pravne bitke“, BIRN, 03.04.2019.
2 Property rights in Kosovo within the comprehensive normalisation of relations between Belgrade and Priština
When it comes to land plots, until 1999, according to Kosovo cadastral records, there were about 300,000 plots, of which 200,000 were privately owned. All these data require comparison due to possible mistakes and abuses in the past.
According to the Kosovo Cadastral Agency, in 1999, there were about 300,000 public and private plots of land in Kosovo. All this data would have to be reviewed for possible mistakes and abuses committed in the past, which is a major task for the Cadastral Agency and the Kosovo Privatisation Agency. “About 100,000 of those are in public ownership, so we will have to review about 200,000 copies, and the public property will be reviewed by the Kosovo Privatisation Agency,” Kika explained.5
Despite an earlier agreement, property issues remain among the main obstacles to normalising relations between Belgrade and Priština. For that reason, the renewed dialogue, mediated by Special Representative Miroslav Lajčak, included the topic of “joint financial and property claims” discussed in September 2020. However, there were no major changes because the topic of property is placed deep in the status related discourse.
Avni Arifi, a member of the Kosovo delegation participating in the dialogue with Serbia, says that the issue of cadastral copies was not touched upon at any of the meetings held between 2017 and 2019.6 While Professor Sadiku from the University of Priština, in the context of property owned by Serbs, points out that “this property, even if it exists, is located on the territory of Kosovo, within the sovereign Kosovo, where all its inhabitants can exercise their property rights, therefore nobody’s property is jeopardised in Kosovo.” In fact, in Belgrade’s insisting that the property issue be on the agenda of the dialogue in Brussels, Sadiku sees Serbia’s intention to strengthen the position of “the future Union of Serb-majority Municipalities, where Serbia is obviously trying to establish a state entity within Kosovo. However, these are scenarios full of tricks that Kosovo should not allow to be realized.”7
5 Filip Rudić & Serbeze Haxhiaj, „Izgubljena imovina na Kosovu: nestala evidencija odlaže pravne bitke“, BIRN, 03.04.2019. 6 Filip Rudić & Serbeze Haxhiaj, „Izgubljena imovina na Kosovu: nestala evidencija odlaže pravne bitke“, BIRN, 03.04.2019. 7 Ljudmila Cvetković, „Čija je imovina na Kosovu?“, Radio Slobodna Evropa 17. septembar 2020.
3 Property rights in Kosovo within the comprehensive normalisation of relations between Belgrade and Priština
HOW MANY UNRESOLVED CASES ARE THERE
The question of the exact number of unresolved cases before various levels of Kosovo institutions as an obligation to guarantee inviolable property rights remains open. After the war in Kosovo in 1999, the UN Mission registered 42,749 cases of confiscated property, of which “96.84 percent or 41,399 usurped properties belonged to Serbs.”8
The president of the women's association “Avenija”, Gordana Đorić, pointed out that in Kosovo, legally enforceable decisions on the release of usurped property are not implemented: “As an organisation, we worked on a project on usurped property and on that occasion, we discovered devastating data.” At that time, there were over 40,000 cases in Habitat, and today, to my knowledge, there are already up to 70,000 cases of our people who are seeking compensation for the used space or are asking for the usurped property to be released. In this way, we can prove that the courts still do not work for the benefit of our community, on the contrary, they do not work according to the law as they should.”9
KPCVA claims that out of 42,749 cases of confiscated property, 12,823 cases are currently under the management of this Agency, and that the number of unresolved cases has significantly decreased due to the sale, often under pressure, while a certain number has been returned to previous owners.10 However, the experience of the free legal aid program for displaced persons claiming their property showed an average of only 5% of successfully resolved cases.11
The stated numbers of unresolved cases mostly refer to agricultural land, and then to residential buildings, while forest land is still unregistered. At the same time, in addition to KPCVA, many proceedings are being conducted before regular courts in Kosovo, and some displaced persons, as well as Serbs left to live in Kosovo, are not reporting the usurpation of their property, hoping for a compromise with the usurpers. There is also a justified fear that legal proceedings will only bring them additional problems and years of uncertainty. Lakušić reminds that not everyone was able to file a lawsuit due to damage or destruction of property, and that many who filed the lawsuit could not follow the procedure “because they changed their place of residence, and invitations were sent to the addresses from the lawsuit and the verdicts they refused because of the absence, others did not have money for lawyers, and the number of proceedings that are still ongoing requires indisputable evidence that can no longer be obtained by direct inspection, on the contrary, most of the premises where the destroyed property was located looks like nothing had ever been there.”
8 Filip Rudić & Serbeze Haxhiaj, „Ukradeni domovi: Borba za povraćaj uzurpirane imovine na Kosovu“, BIRN, 29.05.2018. 9 Gračanica online, „Srbi na Kosovu teško do svoje – uzurpirane imovine“, 18.11.2020. 10 Filip Rudić & Serbeze Haxhiaj, „Ukradeni domovi: Borba za povraćaj uzurpirane imovine na Kosovu“, BIRN, 29.05.2018. 11 An intevriew with Maja Lakušić
4 Property rights in Kosovo within the comprehensive normalisation of relations between Belgrade and Priština
Justifications for the current situation, in which, with all international worldviews, the basic right of people to private property is not respected even after 20 years of conflict, are trying to minimize the responsibility of institutions in charge of protecting property rights. The first argument is that there is no insight into the original cadastral records, although the EU Delegation to Kosovo, which according to the Brussels Agreement should facilitate the process, confirmed that the process of scanning and indexing the documentation is complete.12 Obviously, there is no political will to stand in the way of usurpation, which often ends in intentional damage and demolition of buildings, which is an activity subject to control and verification even without inspection of the original cadastral books. The second argument most often ignores the ethnic character of the problem, generalising that the absence of the rule of law is an endemic phenomenon faced by all citizens living in Kosovo, regardless of cultural identities. This claim is supported by USAID analysis, where about 60% of assets in Kosovo are not legally registered by the owners.13 However, the fact that 96.84% of usurpation cases since the end of the war are related to Serb property, allows for characterisation of the current situation as systemic discrimination against members of the Serb community.
Although some statistical shifts are being recorded, there are still numerous cases of people who cannot regain their illegally confiscated property. As an editor at the Radio Television of Serbia (RTS), Svetlana Vukmirović has been dealing with property rights over state, social, as well as private property for many years, to which a special series is dedicated. “The Right to Tomorrow” series states that Serbs and other non-Albanians have filed about 70,000 claims for the return of usurped property in Kosovo, while 18,000 lawsuits have been filed in Kosovo courts for damage compensation, and the real owners have been subjected to exhausting lawsuits and because of that they have huge financial losses. Until this analysis was finished, none of the presented cases of usurpation of property shown in the show “The Right to Tomorrow” during 2018 has been resolved, and some claimants died without achieving the return of their property rights.14
12 BIRN 13 BIRN 14 „Pravo na sutra“, RTS, https://www.rts.rs/page/tv/sr/story/21/rts-2/3043799/pravo-na-sutra.html, 27.02.2018.
5 Property rights in Kosovo within the comprehensive normalisation of relations between Belgrade and Priština
ORIGIN OF DIFFERENT MODALITIES OF JEOPARDISING PROPERTY RIGHTS
A particularly vulnerable group are displaced persons whose return is conditioned primarily by the right to free use of their property. Mass illegal usurped property has permanently prevented any serious progress in the policy of returning displaced Serbs to Kosovo. Also, the types of problems that displaced persons and Serbs still living in Kosovo face have changed over time. “After 1999, the most common was damage and destruction of property, which, although very intense, escalated in the 2004 pogrom. Due to objective responsibility on this basis, property owners filed lawsuits against UNMIK, KFOR and the Provisional Municipalities, which were not dealt with until 2008 on the basis of the UNMIK order, and after that the lawsuits were rejected to a great extent due to the lack of passive legitimacy of UNMIK and KFOR, i.e., the inability to be responsible. The practice of regular courts where these proceedings have been “conducted” for 16 years is that appeals against these decisions are adopted in the part of municipal responsibility, which means that the procedure can be continued only against the municipality. The first hearings were scheduled for 2018, when the court worked in all possible ways to complete the procedure as soon as possible, because the parties were inadequately summoned and were not able to attend the hearings. Many property owners have passed away, so in order to continue the procedure, it is necessary to conduct probate proceedings with a notary from Kosovo, because the courts and the cadastre do not recognize probate decisions issued by Serbian authorities. Conducting a probate proceeding on the territory of Kosovo is absolutely impossible for many, and even if it is conducted, the property cannot be registered in the cadastre without a Kosovo ID card, which means conducting two more administrative proceedings before the provisional Kosovo institutions, additional time and costs.”15
The problem is the fact that the practice of usurpation, especially of land, has been frequent in the last few years. This means that cases of confiscation of property cannot be limited to the transitory “post-conflict” period. “In recent years, usurpation has been carried out unscrupulously, by simply occupying property, setting up a fence, building a house, cultivating land with agricultural machines, and sometimes it has been accompanied by forging documents. Construction and agricultural land are being usurped equally, while forests are being cut down and resold. Proceedings due to usurpation are mostly criminal, which are conducted due to criminal offense of illegal occupation of real estate, in which the property claim is emphasized, however, in none of the completed proceedings is this claim convicted in a fair and objective manner.”16
15 An interview with Maja Lakušić 16 Ibid.
6 Property rights in Kosovo within the comprehensive normalisation of relations between Belgrade and Priština
EXAMPLES OF DIFFICULTIES IN EXERCISING PROPERTY RIGHTS
The following actions and processes have been identified in the threats to property rights so far, that systematically prevent members of the Serb community from enjoying their private property:
• Forgery of documents • Non-compliance with court decisions • Intentional damage or complete destruction of property • Usurpation followed by threats and blackmail • Cadastral forgery
Although the records available to Kosovo institutions are unreliable due to the lack of original cadastral documentation, the method of property registration after the first satellite survey was questioned in a way that it was sufficient for the “owner” to come to the cadastre office with two witnesses to confirm ownership of the property. This method of recording has been used in other countries as well, when the goal is simple and efficient recording of the factual situation, which certainly cannot be applicable in post-war circumstances in which different types of abuse are possible due to thousands of displaced persons. “Serbs were neither informed about this recording, nor did they have the freedom of movement to be able to register as owners in this way. Thanks to the fact that the cadastral records were moved to the territory of Serbia, they were later able to obtain evidence of the right of ownership over the property and point out the earlier real situation.”17
Maja Lakušić, who worked in the free legal aid program for three years, points out one of the most vivid examples of property rights violations: “A lady from Prizren gave her house, which she inherited from her mother, and which is located near the church of St. George in Prizren, for administration by the Kosovo Property Agency. In 2011, she was informed by this agency that the house was damaged and that it was no longer suitable for rent. The client filed criminal charges with the Prosecutor’s Office in Prizren and requested photographs and other evidence from the Kosovo Property Agency, but there was no progress in the proceedings before the Prosecutor’s Office. Several requests were submitted to deliver any notification to which she never received a response. In 2018, she found out that she “sold” the house to a local Albanian who is known for his criminal activities. After that, she found out that the house had been demolished and that the plot had been turned into a parking lot for that Albanian’s house. We found out that, on the basis of a false power of attorney by which she “authorized” that Albanian to sell her property, he made a contract of sale with his own wife to whom he paid about 30,000 euros and based on such a contract he registered as the owner in the cadastre in Prizren. The false power of attorney was allegedly made in Austria, although the lady did not leave the country during that period. The notary from Austria was
17 An interview with Maja Lakušić
7 Property rights in Kosovo within the comprehensive normalisation of relations between Belgrade and Priština
officially contacted immediately, who confirmed that it had never certified this power of attorney, so after obtaining other evidence, criminal charges and litigation were initiated, as well as proceedings against the notary who made such a sales contract before the Notary Chamber of Kosovo. The Notary Chamber of Kosovo rejected the request to initiate proceedings, even though it is a blatant violation of the regulations and rules of the notary profession, while other proceedings are still ongoing.”18
Members of other non-Albanian communities also face problems, and the fact that a significant number of people whose human rights were endangered involuntarily resorted to the sale of real estate, where offered “compensation”, although lower than market value, meant avoiding the uncertain process of proving and recovering confiscated property. This problem is also stated in the National Strategy on Property Rights, which Kosovo adopted in 2016.
“Nusret Ajdezi was woken up by strong knocking on the door at midnight on June 19, 1999. Four armed men entered his home in a settlement in the centre of Priština and told him that his family had to flee by morning, or they would all be killed. “They were armed civilians. They said they were commanders (of the Kosovo Liberation Army). That night neither my wife, nor the children, nor I slept at all. We didn’t know where to go,” said Ajdezi. The next morning, Ajdezi talked to his Roma neighbours and learned that the same thing had happened to them. In three days, most of the Roma population living in Priština fled to Serbia. At the end of 2001, Ajdezi returned home and discovered that his house had been turned into a brothel. He was told that the house had been bought and was driven away with the blows of a metal bar. For almost two decades, Ajdezi has been living in a refugee camp in Novi Sad, fighting poverty and deteriorated health. “I built that house by working for 27 years in an Albanian-owned butcher’s shop, and they only grabbed it because I am Roma,” he says. The legal battle of Ajdezi to return his property was long and complicated. “The usurper Isa Hamiti says that he bought the house from another person. But the documents are fake, “says Ajdezi. According to court documents, the person who occupied Ajdezi’s house stated that he bought it from Bekim Ramadani, who does not appear as the owner, but as a person authorized by Sanija Deri, whose name is not registered as the name of the owner in the Kosovo cadastral register. At the time the purchase agreement was signed, in 2000, which says that Deri gave a power of attorney to another person to sell the house, she had been, according to the data from the registry book, dead for 30 years. Meanwhile, the seller Bekim Ramadani, from Medvedja, a town in southern Serbia, found himself in prison in Serbia for other crimes. The court has not yet decided on the Ajdezi case, but his house now exists only in photographs and in the memories of those who lived in it. A huge residential building was built in its place today, in which the seller of the house received two apartments from the investor.”19
18 Ibid. 19 Filip Rudić & Serbeze Haxhiaj, „Ukradeni domovi: Borba za povraćaj uzurpirane imovine na Kosovu“, BIRN, 29.05.2018.
8 Property rights in Kosovo within the comprehensive normalisation of relations between Belgrade and Priština
“Forgery of documents is the most common form of “legal” usurpation, and here is how it is carried out. Powers of attorney by which Serbs authorize an Albanian to sell their property are being forged, and previously the alleged offices of notaries were in Macedonia, Montenegro, non-existent courts in central Serbia, for example, Municipal court in Rakovica, and not only the signatures of the clients are forged, but also the stamps of institutions. Based on such powers of attorney, purchase and sale agreements are made, which later become the basis for entry in the cadastral records. Another way is the court procedure for determining the right of ownership, during which the property that is owned by a Serb, when it is presumed that he/she passed away, becomes a subject of interest, and then lawyers enter the scene. The lawyer files a lawsuit against the property owner and seeks a determination of ownership, given that the defendant has either passed away or is unable to receive a summons because the address at the prosecutor’s disposal is simply not valid, temporary defendants are appointed who acknowledge the claim, and in a very short period of time, verdicts are passed, which quickly become final and serve as the basis for changes in the cadastre. The heirs of the rightful owners find out about the court proceedings only when they request ownership certificates from the cadastres and then their requests are rejected because they have no rights to be issued ownership certificates. Only when they obtain certain evidence that the property was once registered as owned by their ancestor, most often old ownership records, new ownership records are issued to them and the painful agony of proving ownership begins, which lasts for an average of 10 years.”20
“Radoslav Zdravković from Čaglavica is one of many who have been trying to reclaim 14 acres of land since 2004 in one of the best locations in Priština, where Albanians whose names he knows, by forging documents, built a residential building. He points out that he discovered the fraud in 2000 and that they even deleted his plot from the cadastre in Priština, and the documents for his plot were forged in the court in Lipljan. He proved these allegations in court: “When I managed to return the plot to the cadastre, I filed a lawsuit with a request to stop the construction of the solitaire on my land, but the court asked me for 25,000 euros to ban the construction.” I did not have that money and now there is an apartment building there. I have been waiting for a hearing to be scheduled since 2004.” Zdravković is still waiting for the trial to begin.”21
Persons who are allowed access to cadastral records are also directly involved in the abuses. “As a legal advisor of the free legal aid project, I conducted the procedure of registration of property rights in the cadastre in Vučitrn for a client whose request for registration of property rights was twice rejected before contacting our office. The property that the client was trying to register was bought by the client’s father in 1925, as evidenced by the deed, when the right of ownership was registered in the land register. After 1999, the client did not visit the property for security reasons. He dares to visit the property only in 2004, because he heard that many Albanians are engaged in forging documents on the basis of which they are
20 An interview with Maja Lakušić 21 Gračanica online, „Srbi na Kosovu teško do svoje – uzurpirane imovine“, 18.11.2020.
9 Property rights in Kosovo within the comprehensive normalisation of relations between Belgrade and Priština
registered as owners in the cadastre. He goes to the cadastre when he learns that he is not registered as the owner of the land, submits the application for registration and all the documentation he fortunately kept, the decision on inheritance from 1996 and the decision of the cadastre on registration from 1997 and then the cadastre which was under UNMIK supervision registers him as the owner and issues an excerpt from the list of real estate. However, after 2008 he went to the cadastre in Vučitrn again and found out that he was still not registered as the owner and then he starts submitting indisputable evidence again, and the administrative proceedings ended with a negative decision twice, after which the proceedings were initiated before the Basic Court in Pristina, to the department in charge of administrative disputes. As a reason for rejecting the request, it is stated that there are discrepancies with the cadastral study, as well as that the agricultural cooperative is the owner of the property in question, and that the property is under the exclusive jurisdiction of the Privatization Agency of Kosovo, i.e., that the change cannot be made because “according to the property history, we did not find that the property in question was registered in the name of other owners, except for the agricultural cooperative.” It is especially interesting that his right of ownership over this property was determined by the decisions of the Kosovo Property Agency KPA (now KPCVA), which in these proceedings did not declare itself incompetent, but decided on in favour of the plaintiff. It is unbelievable that his property right has already been registered in the cadastre and that the re-exercise of this right has been going on for more than 7 years.”22
22 An interview with Maja Lakušić
10 Property rights in Kosovo within the comprehensive normalisation of relations between Belgrade and Priština
KPCVA – KOSOVO PROPERTY COMPARISON AND VERIFICATION AGENCY
Kosovo Property Comparison and Verification Agency was established under the Law 05/L- 010, by which it inherits the mandate of the Kosovo Property Agency (KPA). The mandate of the Agency is to receive, compare and, through the Property Verification and Adjudication Commission (PVAC), to decide on specific cases based on the comparison of cadastral documents from before June 1999 held by Serbian institutions and current cadastral records in Kosovo which include private, private commercial and private property of religious communities.23 Due to numerous differences and discrepancies in the cadastral records, the basis of the work of this agency is the comparison of documents, as well as the determination of ownership, which includes executive competencies.
KPCVA has a mandate to decide through the Property Claims Commission (PCC) on property claims and claims related to the right of use (with the right to appeal to the Supreme Court of Kosovo) regarding private immovable property, including agricultural and commercial property, which were previously filed with the KPA. This type of determination of property rights dates to UNMIK Regulation 1999/23 which established the Housing and Property Directorate, which ceased to exist with the establishment of the Kosovo Property Agency. Therefore, the current mandate of KPCVA is to implement the final decisions of PVAC, KPCC, Housing and Property Claims Commission (HPCC), as well as the judgments of the Appeals Chamber of the Supreme Court. This agency normatively has a wide range of competencies: registration of PVAC decisions in cadastral records, placing property under the Agency’s management, evictions, confiscations and demolition of illegal buildings, auctions, and lease agreements, as well as mediation mechanisms in implementing decisions on confiscation and demolition of illegally constructed buildings.24
KPCVA is composed of four main bodies, the Executive Secretariat, PVAC, PCC and the Supervisory Board, and it has five regional offices. The Supervisory Board is mandated to oversee the KPCVA’s work and to formulate the main direction of the work. It is composed of five members, three of them being international representatives. The Supervisory Board was in the public spotlight during 2019, when representatives of the United Kingdom and the United States withdrew from the Kosovo Property Comparison and Verification Agency. First, the British ambassador Rory O’Connell resigned as the chairman of the supervisory board of this agency, due to the decision of the Kosovo Assembly to appoint Naser Shala, who was a former KLA commander and who is considered an unqualified candidate, as the president of the secretariat. The British Embassy stated that by appointing a candidate who does not meet the criteria for this position, the Kosovo Assembly violated the memorandum of cooperation with this embassy. In August of the same year, US representatives withdrew
23 Zakon o Kosovskoj agenciji za upoređivanje i verifikaciju imovine 05/L-010 24 KAUVI Radni plan 2018, p. 3
11 Property rights in Kosovo within the comprehensive normalisation of relations between Belgrade and Priština
from the board, and Ambassador Philip Cosnet stated that “the United States left the board of the Kosovo Property Comparison and Verification Agency because it is used by the Kosovo leadership for personal and political interests.” Also, before the final decision on withdrawal, he stated that “an unqualified representative of the board of the Kosovo Property Comparison and Verification Agency remains in that position, undermining the faith of citizens in merit-based choices… It is time for parties to propose solutions to end corruption and cronyism.” 25
The Executive Secretariat has a major operational role in the process of resolving differences and disputes between the original cadastral documentation held by Serbia and the current cadastral records in Kosovo. The main tasks of the Executive Secretariat are as follows:
• Receiving and registering cases based on the original version of scanned cadastral documents before June 1999, taken from Kosovo by Serbian authorities and received from/through the EU Special Representative, comparing them with cadastral documents in Kosovo to identify gaps or discrepancies between these two groups of documents. • Following up original case files, including decisions of the Secretariat, to the Kosovo Cadastral Agency (KCA) when no differences or discrepancies are found, • Notification of the parties in whose names the properties are evidenced, when gaps or discrepancies are found, • Verification of documents, • Processing and preparing cases to be reviewed by KPCVA, • Receiving and sending appeals to the Supreme Court, and • Implementing the KPCVA and Supreme Court decisions and sending final decisions to the Kosovo Cadastral Agency.26
Despite the complex system that the Agency should manage, it is evident that there is a significant gap between the authority to be the final body in determining property rights and the capacity to implement various assigned competencies from eviction to compensation. First, the key condition for the success of the Agency’s work is the missing scanned cadastral documents, which are estimated at more than four million.27 Second, the work plan from 2018 states that the non-functional supervisory board and the non-appointment of the director, as well as the deputy director, enable a greater indirect and direct influence on the work of the Agency.28 Also, the fundamental problem is the lack of qualified staff, as well as the departure of experts for property issues related to legal expertise and technical expertise of geodesy.29
25 Kossev, SAD se povukle iz borda Kosovske agencije za upoređivanje i verifikaciju imovine 16. avgust 2019. 26 KAUVI Radni plan 2018, str. 5 27 KAUVI Radni plan 2018, str. 6 28 Ibid, 7. 29 Ibid, 9.
12 Property rights in Kosovo within the comprehensive normalisation of relations between Belgrade and Priština
Recommendations of the Kosovo Ombudsman pointed out the need to change the adopted legal solutions related to eviction and the lease program. Namely, according to the current legal solution, the Agency has the authority to evict twice, which was assessed by the Ombudsman as a potential violation of the rights of property owners, since usurpation must be sanctioned by the competent authorities, regardless of the number of evictions.30 Also, the adopted law limited the application of the lease system to 18 months from the date of entry into force. This posed a systemic problem, as 4,112 properties were included in the voluntary lease program.31 The Kosovo Ombudsman recommended that this program be continued as a sudden cessation after the 18-month deadline would lead to serious financial consequences for property owners from Serb and other non-majority communities, as well as for displaced owners who rely on the lease program.32 These recommendations initiated the process of amending the law, which would include the right to multiple evictions, not just two, as well as the continuation of the asset management program for an indefinite period. However, these amendments have not been adopted to date.
KPCVA’s particularly sensitive jurisdiction is eviction. The total number of illegally occupied property subject to eviction is 46 cases. The largest number is in the northern part of Kosovska Mitrovica, where 22 properties belonging to Kosovo Albanians have been illegally occupied by Kosovo Serbs, while two properties belonging to Serbs have been usurped in the southern part by Albanians. In Priština, there are ten usurped real estate belonging to Serbs, in Peć nine, of which seven belong to Serbs, one to a Bosniak and one to a private company, and finally, in the Prizren region, out of three real estate, two evictions are carried out over Serb property and one over Roma property.33
Another complex competence of this Agency is related to decisions on demolition of illegally built real estate on the property of displaced persons. In 2019 alone, KPCVA issued 55 demolition decisions (Peć (20), Priština (18), Gnjilane (12) and Prizren (5)), but only two demolition procedures were carried out.34 The reason stated is the lack of financial resources for the implementation of the adopted decisions, since the amount for the obligation to implement the compensation alone reaches 3.2 million euros.35 Insufficient budget makes the normatively defined broad competencies of the Agency meaningless and prevents the protection of fundamental rights, primarily for the Serb community, including displaced persons. Especially if we take into account the obligation to apply the Pinheiro principle, which was not taken into account when writing the current law, and which implies releasing the applicant from the obligation to pay for eviction or demolition, because it can be an insurmountable financial obstacle to exercising property rights, especially for displaced persons. Without an adequate budget, KPCVA is not able to apply the Pinheiro principle.
30 An interview with Marija Radulović, Ombudsman Kosovoo 31 OEBS, Mehanizam za rešavanje masovnih imovinsko-pravnih zahteva: iskustvo sa Kosova, jun 2020, str. 22. 32 An interview with Marija Radulović, Ombudsman Kosovoo 33 OEBS, Mehanizam za rešavanje masovnih imovinsko-pravnih zahteva: iskustvo sa Kosova, jun 2020, str. 16. 34 OEBS, Mehanizam za rešavanje masovnih imovinsko-pravnih zahteva: iskustvo sa Kosova, jun 2020, str. 25. 35 KAUVI Radni plan 2018, str. 10
13 Property rights in Kosovo within the comprehensive normalisation of relations between Belgrade and Priština
Also, the continuation of the authority to manage the lease program over 4,396 real estates, which includes the imposition of monthly rent payments, requires additional financial resources.36 Finally, the exercise of the right to compensation is impossible without adequate budget support. Therefore, “the current state of affairs regarding the implementation of the compensation program can be understood not only as a lack of self-awareness of the KPA and KPCVA as the main competent bodies to provide fair and effective remedies to applicants, but also as insufficient focus of the Government on these issues in order to realise its obligations related to human rights arising from international law and in accordance with the Stabilization and Association Agreement (SAA) with the European Union (EU).”37
36 Ibid, p. 13 37 OEBS, Mehanizam za rešavanje masovnih imovinsko-pravnih zahteva: iskustvo sa Kosova, jun 2020, p. 29.
14 Property rights in Kosovo within the comprehensive normalisation of relations between Belgrade and Priština
KPCVA’S JURISDICTION AND COURT DECISIONS
A particular problem in exercising basic property rights in Kosovo is the lack of coordination, as well as legal harmonisation between different institutions, especially the competences of KPCVA with the actions of regular courts. Based on previous normative acts, the mandates of HPD, KPA and KPCVA are given exclusive jurisdiction over unresolved property claims related to the conflict and appeals against their decisions can be submitted only to the Supreme Court of Kosovo. According to lawyer Jovana Filipović, the fact is that the courts have initiated proceedings for the same requests that fell under the exclusive jurisdiction of KPCVA, as well as previous agencies. Also, due to the inadequate actions of the agencies, the injured parties, mostly of Serb nationality, are initiating proceedings before the regular courts, hoping that in that way they will solve the problem of unhindered exercise of property rights. However, “the practice so far has shown an even bigger problem in the proceedings of courts where hearings are not held for several years, and when they are scheduled, the court, although obliged to provide an interpreter, does not do so, and the proceedings are postponed indefinitely.”38 During that time, the usurpation is carried out without problems, it receives its cadastral verification, and some buildings are completely demolished and new ones are built in their place without any action by the competent authorities. What is particularly worrying is that even the already established decisions of KPCVA and previous agencies are annulled in regular court proceedings, despite the decision of the Constitutional Court in the case of Draža Arsić that the decisions of agencies are res judicata, and regular courts have no jurisdiction over these cases.39 This is not an isolated case of non-compliance with the decisions of the Constitutional Court in the case of endangering or usurping Serb property, since on several occasions KPCVA did not execute the judgments of the Constitutional Court, which is justified by ambiguities or lack of funds.40
38 An interview with lawyer Jovan Filipović 39 Ibid. 40 OEBS, Mehanizam za rešavanje masovnih imovinsko-pravnih zahteva: iskustvo sa Kosova, jun 2020, str. 26.
15 Property rights in Kosovo within the comprehensive normalisation of relations between Belgrade and Priština
RECOMMENDATIONS
It is necessary to provide scanned and indexed data from cadastral records in the possession of Serbian institutions to Kosovo institutions through the EU Delegation.
It is necessary to determine the exact number of cases of violation of property rights, as well as the modalities of their permanent solution, especially in the context of compensation.
It is necessary to conduct efficient and impartial verification and comparison of the current situation with the cadastral records kept before the 1999 conflict.
Effective legal mechanisms need to be established to smoothly exercise the competences of KPCVA, including exclusive jurisdiction over the usurped property, in order to avoid duplication of processes and decisions with regular courts.
It is necessary to provide regular and stable financial resources that would enable the smooth operation of KPCVA in the processes of eviction, demolition of illegal buildings, compensation, etc.
Institutional obstacles to the implementation of adopted decisions concerning usurped property need to be removed, in particular with regard to the implementation of judgments of the Constitutional Court in Kosovo.
The topic of exercising property rights should be part of the dialogue between Belgrade and Priština, and in that context the possibility of establishing an effective international mechanism that would monitor the entire process of resolving most cases of endangerment, usurpation, demolition, or illegal construction, especially of property of non-majority communities.
16 Property rights in Kosovo within the comprehensive normalisation of relations between Belgrade and Priština
LITERATURE
Ana Marković, Srbi na Kosovu teško do svoje – uzurpirane imovine, Gračanica Online, 2020, http://gracanicaonline.info/2020/11/18/srbi-na-kosovu-tesko-do-svoje-a-uzurpirane-imovine/
Kosovska agencija za upoređivanje i verifikaciju imovine, Radni plan 2018, 2018, http://www.kpcva.org/pdf/radni%20plan%202018.pdf
Kossev, SAD se povukle iz borda Kosovske agencije za upoređivanje i verifikaciju imovine, 2019, https://kossev.info/sad-se-povukle-iz-borda-kosovske-agencije-za-uporedjivanje-i- verifikaciju-imovine-zbog-zaposljavanjanekvalifikovanih-ortaka/
Ljudmila Cvetković, Čija je imovina na Kosovu?, Radio Slobodna Evropa, 2020, https://www.slobodnaevropa.org/a/%C4%8Dija-je-imovina-na-kosovu-/30843841.html
OEBS, Mehanizam za rešavanje masovnih imovinsko-pravnih zahteva: iskustvo sa Kosova, 2020, https://www.osce.org/files/f/documents/c/4/454185.pdf
Serbeze Haxhiaj, Filip Rudić, Izgubljena imovina na Kosovu: nestala evidencija odlaže pravne bitke, BIRN, 2019, https://balkaninsight.com/2019/04/03/izgubljena-imovina-na- kosovu-nestala-evidencija-odlaze-pravne-bitke/?lang=sr
Serbeze Haxhiaj, Filip Rudić, Ukradeni domovi: Borba za povraćaj uzurpirane imovine na Kosovu, BIRN, 2018, https://balkaninsight.com/2018/05/29/ukradeni-domovi-borba-za- povra%C4%87aj-uzurpirane-imovine-na-kosovu-05-22-2018/?lang=sr
Zakon o Kosovskoj agenciji za upoređivanje i verifikaciju imovine 05/L-010, 2010, http://www.kpaonline.org/framwworkPDFs/srpski/ZAKON_BR._05_L- 010__O_KOSOVSKOJ_AGENCIJI_ZA_UPOREDIVANJE_I_VERIFIKACIJU_IMOVINE. pdf
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