Privatization of enterprises, property and development

The text of a presentation given by Judge Godwin Muscat Azzopardi to an OSCE/University of Esex Conference held in Pristina between the 6 th and the 8th July 2010.

I have been asked to set out some thoughts about the transition from the SOE regime to privatization and to indicate some topics for further discussion. My background is that of five years as an International Judge on the Special Chamber of the Supreme Court for Kosovo Trust Agency Related Matters, a Court set up by the UNMIK administration in 2003.

I think we have to start from a premise which should be acceptable to all of us. Kosovo is a new state, it requires foreign investment and acceptance by the international community. Legal certainty is fundamental for investment, both local and foreign.

A foreign investor coming to Kosovo will be faced with realities which are not commonly known in other countries. Socially owned enterprises are strange animals unknown in the rest of Europe.The Kosovo Trust Agency which was entrusted with privatizing SOEs is another strange animal that was born in New York and bred in Kosovo. These are new concepts which any foreign investor will have to try to grasp if he intends coming to invest in Kosovo.

Investment requires certainty which for me has three fundamental aspects, accountability,transparency and consistency. I believe that Kosovo should go that extra mile in promulgating as well as implementing laws that generate this certainty. And I will argue that the way forward in this legislation or at least some of it, has already been mapped out by decisions of the Special Chamber.


What human rights issues does privatization raise? There are issues that have already arisen and I will indicate them for further discussion. There may be new aspects of human rights that have not yet occurred, and maybe some of you will be able to identify them.

Property relationships are important in every society, independently of which notion of ownership or use are prevalent at the time. But the situation in Kosovo is to my mind particularly difficult and raises human rights issues because of a number of factors which impact upon the present situation,
1. We are in a post conflict situation and additionally , the conflict ended with foreign intervention.
2. Old laws were subsumed and in some cases ran parallel with new laws, imposed from outside-UNMIK.
3. These laws are applied in a society which is still suffering ethnic divisions as well as identity problems.
4. Since Kosovo’s declaration of independence on February 17, 2008, the issue of foreign recognition has complicated the ethnic division.

I will start with a quotation from an OSCE Report issued by the Monitoring Department/Rule of Law division, the Legal System Monitoring Section entitled Privatization in Kosovo:
Judicial Review of Kosovo Trust Agency Matters by the Special Chamber of the Supreme Court of Kosovo issued in May 2008.

“Privatization in Kosovo is the redistribution of socially owned assets to private individuals or enterprises. It is a legally complex and politically charged process that will have long-term effects on the economy. It affects many former and current owners and employees. Some owners or employees may receive windfalls, while others nearly nothing. There is also an ethnic component, as individuals from different communities may argue that past or present discrimination has affected their ability to benefit from privatization. It will impact the potential “crown jewels” of Kosovo, such as the Trepca mining conglomerate and the ski resort in Brezovica/Brezovicë. It also affects many hotels, restaurants, land holdings and small businesses.
Privatization also raises emotional issues from the past: confiscations, nationalizations, the creation of socially owned property and later transformations of businesses. When socially owned property is privatized, there may be property claims from individuals or their descendants who owned private property prior to its seizure or following its transformation. The situation in Kosovo is further complicated because many property records have disappeared as a result of the 1999 conflict.
The importance of the privatization process is reflected in that the Special Representative of the Secretary General holds the exclusive power to administer enterprises and property. The privatization process has been delegated to the Trust Agency and disputes are generally submitted to the Special Chamber.”
And there you have it. A number of notions are contained in this quotation and they raise various human rights issues. I have selected the following phrases from that quotation which we can now think about.
1. Socially owned assets are transferred to private individuals. What exactly are socially owned assets and how are they transferred?
2. Privatization affects owners and employees.
3. There may be property claims from individuals who owned private property prior to its seizure or following its transformation.


1. Socially owned assets: I am sure the present audience is familiar with the notion of an SOE.

SOES were set up by a Serbian law in the early eighties and they could no longer be registered after 1999 when UNMIK started legislating. Since 2002 we have here a situation where socially owned enterprises are being privatized by the KTA, now taken over by the PAK. Since the NATO intervention first UNMIK, then in 2002, the Kosovo Trust Agency has the authority to administer all socially-owned enterprises that were registered in Kosovo as at the 31 st December 1988 or any subsequent date. The Agency has the mandate to privatize such enterprises in terms of a specific procedure. It can also liquidate such enterprises and reorganize them prior to privatizing them. In fact it has commenced a reorganization ( which is at the moment suspended) in arguably the largest umbrella of SOEs , the Trepca mining complex.

SOEs are defined by law. Socially-Owned enterprises were created by the Law on Enterprises and the Law on Associated Labour of Yugoslavia.

The Serbian Law on Registration of Real Properties in Social Ownership in 1971 states in Article 1

“ Real property in social ownership shall be registered in the public registry which registers the right to use such property…”

An important instrument is the Law on the transfer of immovable property promulgated in 1981. The first provision:
“ The transfer of farmland, building land, forests and forest regions, buildings , apartments, business premises, undivided parts of immovable property and other immovable property shall be governed by this law.”

These laws are the result of a political philosophy. The principles of ownership in old Yugoslavia are based on the old Roman law categories. Ownership of land depends on the type of property, natural or juridical, public or private. Properties are regulated according to their nature, civil or commercial, movable or immovable. Ownership is divided as the Romans divided it, the jus utendi, the right to use, the jus fruendi, the right to enjoy its benefits and the jus disponendi, the right to alienate, to transfer.

Under Tito the situation did not change, as it did in other countries under communist regimes at the time. Property was not considered as belonging to the State. But a new concept was introduced. It was the concept of “social property” which was introduced in the early 1950s. Why was it introduced? Tito refused to let Yugoslavia become a satellite of the Soviet Union after World War 11 and the Yugoslav Communist party was excluded from the highest level of Communist organization, the Kominform.

But the economy of the country was stagnant and things were not good economically. Tito’s advisors started elaborating the notion of social property, a collective form of ownership which is not state-property.

The main feature of socially-owned property is that it is owned by the broader social community, by all the citizens, and it never ceases to be owned by the broader social community. This concept of social community started by being a unique group comprising every citizen of the former Yugoslavia. If we look at the philosophy behind it we can see that it is a rejection of the Soviet theory and a return to the Marxist orthodox theory of “factories to the workers”. Not the state, but the citizens.

Naturally this meant that private property had to be transformed into socially owned property. Once the notion of social property was introduced, it was necessary to take privately owned property and convert it to social property. How was social property created? To create social property, land and buildings had to be taken in some way from the private ownership. Five different legal institutions were created to take away property from private ownership. Expropriation, colonization and confiscation were the main three.

• Land was expropriated against payment of a compensation. Frequently the compensation was not paid. You have a decision by a Municipality to expropriate land for public purposes, but the Municipality had no funds.
• Land was confiscated from people who were declared enemies of the people by a criminal procedure.
• Under colonization rules, land in excess of 20 hectares was forfeited to the state.

The right to inherit property was also restricted so that more private property was to be taken from the private inheritor and passed into social-ownership.

Typically the land taken over from private property was given to the Municipalities which in turn gave it over to cooperatives and to socially owned enterprises. Through these means a large amount of land became socially-owned. There was massive expropriation during the Civil war.

In practice if there were 500 SOEs in Kosovo in 1999, no one was like the other and chances are they were managed in a different way, employees were paid in a different way. The management of SOEs has over decades, reflected the ethnic group which was in power at the time. And by in power I do not mean constitutional power, I mean either the majority Kosovo Albanian people or Serbia.

Some Soes were very poor and existed on a shoestring, other SOEs had been allocated prime site land on which some built apartments which they allocated to some of their employees. Again the allocation reflected majority ethnic power and when that majority ethnic power changed, apartments were taken away by force, people were evicted and their apartment given to someone of a different ethnicity. Between 1991 and 1999 and even later a number of Soes were non functioning. But they still supported their employees by giving them a little pocket money per week. In some cases the money came from SOE property like warehouses that had been rented out to third parties
I think it will be useful to commence with a very brief history of the property regime existing in Kosovo at the time of the conflict which culminated in the Nato intervention in June 1999.
The present reflects the past. We have to look at the property regime in Kosovo at the time that SOE property and private property coexisted. Kosovo was subject to Ottoman hegemony for a number of centuries. Local occupiers of the region changed their belief to Islam. Any foreign occupation leaves its mark not only on the identity of the locals but also and very significantly on property relations and ownership. This long occupation left its mark on settlement patterns, community identity (through conversion to Islam) and culture, as well as approaches to property rights and ownership. Land was not surveyed as such then, and cadastres were a mixture of population and traditional tax roll records. Property ownership was based on a system of allotment certificates called tabi. The tabi identified the owner and residence, and gave a description of the parcel, boundaries and names of adjacent parcel owners. Many elements of the tabi system were later incorporated into the laws and regulations of the Kingdom of Serbia (successor to the Ottoman Empire) and later into those of the Kingdom of Yugoslavia. As a result of this system, some segments of the Kosovo Albanian and especially Kosovo Roma population did not register property formally when Yugoslavia conducted full cadastral surveys. The first such survey was conducted in 1923 and ended in 1937; the last one that covered the whole territory of Kosovo took place between 1978 and 1982, but was mostly implemented in urban areas. Resistance to registering property diminished over time as levels of education and social integration increased, but some resistance still remained. This is partially because of social and cultural reasons. Since some Albanian and Roma families felt marginalized from what they considered to be an “alien” society (i.e., the Yugoslav state), they did not consider it important to have ownership documents for immovable properties. Furthermore many families opted not to formally register their property to avoid paying high registration fees and taxes on property transactions.

In addition to the main law regulating property and property relations in Kosovo under the
system of social ownership, namely the 1980 Law on Basic Property Relations any property contract between members of different communities needed to be approved by a directorate of property rights, typically a Serbian manned institution Thus if a property transaction changed the ethnic composition of the population or prompted members of a particular community to leave the country it would not be approved.

Many Kosovo Albanians and Serbs ignored the new laws and made contracts that did not comply with legal requirements. The growing Albanian population needed more land and housing in urban areas. Many Kosovo Serbs, sold their properties to Kosovo Albanians on the basis of non-validated contracts. These informal transactions would prove problematic after 1999 as local courts and the international community sought to sort out the real picture of ownership. Clearly however, the large number of informal property transactions opened the door to corruption and manipulation regarding abandoned properties in the post-conflict period.

The crisis of the 1990s was a watershed. Serbia suspended the autonomy of Kosovo. Kosovo Albanians protested in an organized manner and the Serbian response was tough. Three factors affecting property happened at the same time
1. Vacuum of organized authority
2. Promulgation of laws starting in 1991 relating to inter ethnic transfers of property.
3. Replacement of Albanian officials in high positions including managers of SOE’s who were replaced by Serbian personnel

But it is important to note that towards the end of the 1990s a large number of Kosovo Albanians were displaced and later some of them returned. There was a massive displacement of minority members. However in 1999 Nato forces bombarded Serbia and on the 10 th June 1999 Nato occupied Kosovo. A large number of properties were usurped after June 1999.

What was the situation here when Nato and more specifically UNMIK entered Kosovo?

Post conflict Kosovo had these characteristics after June 1999

1. Property had been usurped on a large scale
2. Ethnic minorities had been discriminated against in matters relating to property.
3. The police were not an independent force
4. The local courts were not ideally equipped to solve these problems
5. There was no law dealing with restitution of property

UNMIK started legislating for Kosovo. The applicable law was defined in 1999 by UNMIK Regulation 1999/24.

1.1 The law applicable in Kosovo shall be:

(a) (a) The regulations promulgated by the Special Representative of the Secretary-General and subsidiary instruments issued thereunder; and

(b) The law in force in Kosovo on 22 March 1989.

In case of a conflict, the regulations and subsidiary instruments issued thereunder shall take precedence.


1.2 If a court of competent jurisdiction or a body or person required to implement a provision of the law determines that a subject matter or situation is not covered by the laws set out in section 1.1 of the present regulation but is covered by another law in force in Kosovo after 22 March 1989 which is not discriminatory and which complies with section 1.3 of the present regulation, the court, body or person shall, as an exception, apply that law.

1.3 In exercising their functions, all persons undertaking public duties or holding public office in Kosovo shall observe internationally recognized human rights standards, as reflected in particular in:

(a) The Universal Declaration on Human Rights of 10 December 1948;

(b) The European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 and the Protocols thereto;

(c) The International Covenant on Civil and Political Rights of 16 December 1966 and the Protocols thereto; ……………


Clearly therefore the principles of these international instruments take precedence over other laws applicable in Kosovo and the protection of the human rights instruments is supreme.

2. Privatization affects owners and employees

Who are the owners of socially owned enterprises? We have seen what socially owned enterprises means under Serbian Law. So the owners of SOEs in Kosovo, it can be argued are all the people in Kosovo.

UNMIK set up a number of institutions intended to deal with the property position as it obtained at the time. They were ad hoc institutions under a particular legal regime.
1. The Housing and Property Directorate ( later to become the Kosovo Property Agency)
2. The Kosovo Trust Agency
3. The Special Chamber of the Supreme Court on Kosovo Trust Agency Related Matters.

1. The HPD was entrusted with resolving residential property claims fairly and efficiently. The Housing Property Claims Commission was a quasi judicial body intended to hear appeals about claims. Later the Kosovo Property Agency assumed the HPD/HPCC’s responsibility in administering residential properties, particularly properties deemed to be abandoned. To give an idea of the entity of the problem, According to the KPA, as of April 2008, some 4,457 properties were under its administration, and 3,848 of those were rented out on behalf of IDPs. The KPA also had to complete 721 HPCC decisions pending implementation, on the basis of requests from successful claimants to repossess their property. The KPA started working under difficult circumstances. By July 27, 2007, it had collected about 40,000 claims and made decisions in 11,168. However none of those 11,168 claims have in fact been acted on because the Supreme Court panel designated to hear appeals still is not established.

A problem which affects the jurisdiction of the KPA is that some cases have been filed before the Regular Courts when they are completely within the jurisdiction of the KPA. This creates confusion and conflicting decisions.


2. The Kosovo Trust Agency:

UNMIK Regulation 2002/12 (later amended by UNMIK Regulation 2005/18), established the Kosovo Trust Agency as the body solely responsible for privatization of SOEs and for redistributing SOE assets to individuals or enterprises. The KTA was granted ample rights to administer publicly owned enterprises as well as SOEs registered in Kosovo as of Dec. 31, 1988, and socially owned property located in Kosovo as of March 22, 1989.


3. The Special Chamber of the Supreme Court of Kosovo for Kosovo Trust Agency Related Matters ( The Special Chamber).

This Court, created by UNMIK Regulation was composed of three international judges, one of whom is the presiding judge of the chamber, and two local judges. The Court had primary jurisdiction to review challenges of the KTA’s decisions or actions, to hear
claims against the KTA for financial losses incurred as a result of decisions the KTA made as administrator of an SOE, to hear claims against SOEs when the latter are under KTA administration, and finally to hear all other claims detailed in Section 4.1 of UNMIK Regulation 2002/13. The chamber also can remove claims within its jurisdiction from the regular courts, make decisions regarding complaints about lists of eligible employees of SOEs in the privatization process, and hear cases on appeal from judgements rendered in regular courts in matters that are within the chamber’s jurisdiction.

Two human rights issues were highlighted in judgments given by the Chamber and here we come to the OSCE quote we started out with in relations with former owners and former employees.

The first issue related to the 20% entitlement to employees from the proceeds of the privatization. UNMIK Regulation 2002/13 stipulates that employees can participate in the 20 percent share of the proceeds of a privatized SOE if they were registered as an employee with the SOE when it was privatized and have been on the payroll of the SOE for no less than three years (at any time). In practice, a representative body of employees of an SOE and the Federation of Independent Trade Unions of Kosovo would produce lists of eligible employees and provide them to the KTA. In a number of cases before the Chamber, the KTA admitted that it had not reviewed the cases. It had merely rubber stamped the list provided by the Trade Union.

A large number of ethnic minority persons were omitted from the list .The excuse was that they had not reported to work since June 1999 and therefore did not qualify under the law. The burden of proof for proving that someone was not a registered employee at the time of privatization because of alleged discrimination rested completely on the claimant. In a number of cases the Chamber decided that the security conditions in Kosovo after 1999 were such that no minority community member could reasonably have been expected to report to work and that these conditions amounted to discrimination. As a consequence, the claims of the complainants in this case were accepted since “they would have been listed on the register of employees of the Enterprise at the time of the privatization in 2003, if they had not been discriminated against.”

The decision established the precedent that discrimination did exist against certain categories of workers and eventually prompted the KTA to review lists of eligible employees itself.

There is another human right angle worth mentioning here in connection with the same issue. The The UNMIK Regulation specified that discrimination had to be proved by documentary evidence. It is clear that if someone is going to discriminate against me , he is not going to give me a declaration stating that he has discriminated against me. The Special Chamber in its relatively early cases, struck down the requirement that people claiming discrimination had to submit documentary evidence to that effect.

Privatization is normally understood as a transfer of public or state owned enterprises and property to private concerns or individuals. If however you privatize property owned by private individuals, you are not privatizing, you are expropriating, and different rules apply. They are the rules contained in Article 1 Protocol 1 of the European Convention of human rights, namely

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
.

In the case of Kosovo, the applicable law grants the KTA the authority to privatize or
liquidate an SOE, regardless of the validity of the previous “transformation” of the entity from private property into a social asset and whether this transformation took place in a nondiscriminatory manner, such that a third party could be recognized as the owner of the entity.
The KTA will establish the actual status of an asset or enterprise only after it has been
privatized or liquidated. Therefore the asset cannot be returned to the legitimate owner. The owner will only be entitled to a share in the proceeds, but only after administrative costs and the 20 percent proceeds for eligible employees on an employees’ list have been deducted.

The Chamber, in a landmark judgment , held that this process was tantamount to expropriation without the KTA observing the fundamentals of an expropriation to be valid at law. This Regulation grants the KTA full authority to sell assets without determining who owns them, and it protects buyers who purchase such property from the KTA, potentially leading to property rights violations by turning some privatizations into illegal expropriations of assets owned by third parties.

In the decision of November 20, 2007, involving a claim by two claimants on a property that had been privatized by the KTA as belonging to an SOE, the Special Chamber ruled against the KTA and confirmed the claimants’ ownership rights. After reviewing applicable international law, the judges argued that certain provisions of UNMIK Regulation No.2005/18 “appear to allow the Kosovo Trust Agency to carry out a disguised expropriation, under the term ‘disposition of assets.’”

The Chamber has declared sections 5.3 and 5.4 of the KTA Regulation as amended as contrary to the provisions of Article 1 of Protocol I to the Convention for the Protection of Human Rights and Fundamental Freedoms .
The Chamber stated that although Section 5.3 and 5.4 of UNMIK Regulation 2005/18 specifically refer to the principles of Article 1 of Protocol I to the Convention for the Protection of Human Rights and Fundamental Freedoms, the provision above-mentioned is not in line with the principles and relevant jurisprudence of the ECHR, inter alia:
• it does not provide for the establishment of bodies authorized to carry out such expropriation and to establish the existence of a public or general interest as a pre-condition for the deprivation of property;
• it does not offer a definition of public or general interest;
• it explicitly excludes an equitable compensation to the owners of the expropriated property by linking such compensation to the proceeds of such disposition (without prejudice to the rights of creditors and other interested third parties, net of any payments required to be made under Section 10 of UNMIK Regulation 2003/13), rather than to the market value of the expropriated property.

The Special Chamber went on to review certain provisions of the KTA Regulation that prohibit the rescinding or annulment of any transaction the KTA make; they judged that these provisions run counter to the right of a court to exercise full judicial review of transactions and provide a remedy. In both instances, the Special Chamber ruled that the provisions of the ECHR supersede the provisions of the relevant UNMIK Regulations.

The Chamber also decided on the validity of Section 10.5 of UNMIK Regulation 2002/13 which reads: “No party shall be entitled to a remedy that would require the rescission of a transaction or the nullification of a contract entered into by the Agency pursuant to its authority under UNMIK Regulation No. 2002/12”. In other words, the legal owner deprived of his property cannot obtain rescission of the sale (privatization) contract and the Chamber is bound to grant the owner a monetary compensation from the proceeds minus liabilities after the sale of the property. This provision is inconsistent with Article 6 (1) of the European Convention as it represents a limitation of the right of access to a court.

Based on the above the Chamber found the provisions of Section 10.5 of UNMIK Regulation 2002/13 are contradictory to Article 6 (1) of the European Convention and therefore superseded by the provisions of Article 6 (1) of the European Convention which must be applied directly.
There may be other human rights angles which need to be addressed. Some cases may be being heard by Courts which do not have jurisdiction over the matter. The Chamber has exclusive jurisdiction over SOEs. However some cases against SOEs were filed before the local or Regular Courts. The parties and the lawyers as well as the judges did not raise the jurisdiction issue. These cases were decided and the KTA did nothing about this. The Chamber was informed by a number of persons that the parties had agreed to go before the local Courts in preference to the SC. This smells of collusion both with the KTA and with the judges in the local Courts.
The Kosovo Trust Agency has ceased to function in June 2009. It was replaced by the Privatization Agency of Kosovo. Great uncertainty surrounds the relationship between the two institutions. In practice the PAK took over the premises and all the files, or such of them as could be traced, of the KTA. The Special Chamber is still hearing cases dealing with SOEs and with old privatizations.

The Special Chamber has found difficulty in solving the problem of applicable law. The Special Chamber is charged with Kosovo Trust Agency Related matters, as its name implies and the KTA is defunct. Moreover If the Chamber considers that the PAK law, passed by the local Assembly is a law that falls under this definition, it will be argued that the Chamber ( UNMIK/Eulex appointed judges) is not status-neutral as it has recognized the legitimacy and validity of a law passed by the Kosovo assembly . Kosovo has not yet been universally recognized as an independent state by all UN and EU states.

The Chamber has continued to hear cases and it has the representatives of the KTA and of the PAK appearing in a number of cases. At the beginning of most sittings the PAK representatives object to the presence of the representatives of the KTA. This position is untenable in my view and a definite stand needs to be taken one day soon.


Privatization cases are heard by the SC which is now missing a local judge for cases on the merits. This has been seen by some legal persons as going against the Regulation setting up the Special Chamber and may be contested on the basis of human rights before the Constitutional Court.


The Kosovo Assembly’s new law on privatization has by and large maintained the discriminatory provisions of the previous UNMIK regulations. Law No. 03/L-067 establishes the PAK as the successor of the Kosovo Trust Agency. Does it have provisions identical or similar to Sections 5.4 of the Section 10.5 of UNMIK Regulation 2002/13 KTA Regulation ?
Article 6 (b) (c) and (d) provides that the Agency may sell off enterprises, liquidate them etc. Article 5 of this law sets out the rights of the Agency vis a vis any private owners of SOEs.

With reference to the Chamber’s findings under the old law, the PAK law, in my opinion, suffers from the same defects:
• it does not provide for the establishment of bodies authorized to carry out such expropriation and to establish the existence of a public or general interest as a pre-condition for the deprivation of property;
• it does not offer a definition of public or general interest;
• it explicitly excludes an equitable compensation to the owners of the expropriated property by linking such compensation to the proceeds of such disposition (without prejudice to the rights of creditors and other interested third parties, net of any payments required to be made under Section 10 of UNMIK Regulation 2003/13), rather than to the market value of the expropriated property.

The position of Kosovo in this regard has today been placed on par with other countries which apply the European Convention directly.

Kosovo now has a constitution which , to quote from the preamble
Determined to build a future of Kosovo as a free, democratic and peace-loving
country that will be a homeland to all of its citizens;
Committed to the creation of a state of free citizens that will guarantee the
rights of every citizen, civil freedoms and equality of all citizens before the law;

Article 19 provides for the applicability of all international agreements to Kosovo. Article 21 talks about human rights in general, the constitution then list human rights and in Article
Article 46 [Protection of Property]
1. The right to own property is guaranteed.
2. Use of property is regulated by law in accordance with the public interest.
3. No one shall be arbitrarily deprived of property. The Republic of Kosovo or a public
authority of the Republic of Kosovo may expropriate property if such expropriation is
authorized by law, is necessary or appropriate to the achievement of a public purpose or
the promotion of the public interest, and is followed by the provision of immediate and
adequate compensation to the person or persons whose property has been expropriated.
4. Disputes arising from an act of the Republic of Kosovo or a public authority of the
Republic of Kosovo that is alleged to constitute an expropriation shall be settled by a
competent court.
To conclude. From the point of view of the topics addressed today, there are to my mind several main issues here that Kosovo has commenced to address but that may need a more focused effort, and I do not intend this as criticism by any means. The task is difficult and will take a long time to achieve.

I will list them as follows:

1. The first task is to amend the PAK law to provide a structure for privatization that complies with the human rights provisions of Article 1 Protocol 1 of the ECHR.
Until the law is amended it is of fundamental importance that the PAK which was set up to substitute the Kosovo Trust Agency learns valuable lessons from the mistakes of the KTA. It is also a mistake to expropriate private property with a total disregard of fundamental human rights principles. The Special Chamber has pronounced itself on such mistakes and therefore the PAK has clear guidelines to follow.
2. The acceptance of a workers’ list prepared by others without any verification is a mistake.
3. The third issue is that of legislating to create a restitution law that will provide clarity to every citizen as to the precise legal position and the correct way to go about obtaining a judgment leading to restitution. I am not saying that creating such a law is an easy task. For one thing a definite cut-off date will have to be established and compensation procedures set out and financed.
During the Civil war massive nationalization took place, mostly not in line with the applicable laws. There are a large number of cases pending before the Courts where there is an allegation that private property was illegally taken from an owner and there is a request for restitution. Countries which previously formed part of the former Yugoslavia have put laws in place to enable restitution of property to take place. If the property was illegally expropriated, there is a mechanism for restitution. Kosovo does not have such a law. This is a problem which needs to be addressed.
4. The OSCE, in its monitoring activities, should systematically inform the Kosovo Ministry of Justice about cases where the local Courts usurp the jurisdiction of the Special Chamber.
The Ministry of Justice should then take immediate steps to stop the parallel process and make sure that the issue is addressed by the competent tribunal in each case.