On March 13, 2024, the Government of Kosovo decided to implement the decision of the Constitutional Court of Kosovo regarding the properties of the Deçan Monastery. Internationally, this decision was welcomed by The European Union and the Quint countries up to president of the Parliamentary Assembly of the Council of Europe (PACE). This decision fulfills the main condition set by PACE for supporting Kosovo's membership in the Council of Europe. In the week of April 15, it will be understood whether PACE will vote in favor of Kosovo's membership in the largest and most important European organization for the rule of law, human rights and democracy.
Written by: Kushtrim Istrefi
Domestically, the implementation of the Decani Monastery decision has been accompanied by numerous reactions, concerns and interpretations due to the complex and controversial origins of the case and the risk that it could set a precedent for other contentious cases of the 90s. Below I will give my interpretation of these issues.
The oscillation of the legal basis of property: from Milosevic's decision to the decision of UNMIK's Kosovo Trust Agency (KTA)
The disputed properties were donated to the Deçan Monastery on 5 November 1997, by an agreement concluded between the Government of Serbia and the Deçan Monastery. The disputed issue is whether this decision is legal or not, taking into account the date of its approval.
This is because according to Article 1 of UNMIK Regulation 24/1999, no law issued from 1989 until the entry of UNMIK is applicable in Kosovo. This provision clarifies that laws after 1989 have been discriminatory against the people of Kosovo. According to it, if institutions are required to interpret the legality of provisions approved after 1989, it can be accepted exceptionally if it is in compliance with international conventions on human rights.
Based on the legislation established by UNMIK itself, the period from 1989 to 1999 recognizes systematic discrimination in Kosovo. Therefore, any question of legality dating back to the period after 1989 requires to be assessed taking into account the apartheid installed by the Serbian Government in Kosovo.
From the above, the properties donated by the Government of Serbia in November 1997 necessarily raise legality concerns unless it can be exceptionally assessed that the decision in question was made in accordance with human rights. Such an assessment requires a detailed analysis of the origin of the property, the purpose of the donation and whether any citizens in Kosovo were negatively affected by the decision in question. Only against such an analysis can the legality of such a controversial decision be determined.
Unfortunately, however, the question of the legality of the 1997 decision on the disputed properties of the Deçan Monastery has never been decided by the Kosovo courts. This is because in 2009, the UNMIK-led KTA reached an out-of-court settlement with the Deçan Monastery, deciding to hand over the disputed properties to it. The Supreme Court, in its 2012 decision, found that the KTA was the party authorized to decide on the properties and that this settlement of the KTA with the Deçan Monastery is admissible. In 2016, the Constitutional Court ruled that the 2012 Supreme Court decision is final and that this case cannot be reopened. Consequently, this decision must be implemented, and the disputed properties must be owned by the Deçan Monastery.
It is worrying that the UNMIK KTA, instead of asking the courts to assess the legality of Serbia's 1997 decision, has decided to award the disputed properties to the Deçan Monastery. By doing so, it has prevented both the Supreme Court and the Constitutional Court from interpreting the legality of the 1997 decision. This is because the Deçan Monastery properties were 'legalized' not because of Serbia's 1997 decision in isolation, but because of the KTA's 2009 settlement.
Does the decision on the Deçan Monastery set a precedent for other disputed properties from the 90s?
During the 90s during the Milosevic era, some of the properties were donated to religious institutions. Consequently, there is a suspicion that the case of the Deçan Monastery properties could set a dangerous precedent for all other properties that have been donated since the 90s, which could be discriminatory under UNMIK Regulation 24/1999.
However, the case of the Deçan Monastery does not necessarily set a precedent because local courts have never ruled that the donation of the property in 1997 is legal, but that the settlement with the KTA in 2009 is legal.
Despite this, and to remove dilemmas for other cases, the Assembly of Kosovo could issue a law that, like UNMIK Regulation 24/1999, specifies which decisions and laws of the period 1989-1999 are (il)legal and the need for courts to assess them in harmony with human rights. Such a thing would not represent a retroactive law, because it could be based on UNMIK Regulation 24/1999 and Article 145 of the Constitution of Kosovo. Therefore, the new law would represent a continuity of the UNMIK regulation. Thus, the new law does not create legal uncertainty but in fact creates a continuity of the law applicable in Kosovo established by the international community since 1999.
conclusion
The way in which the dispute over the Deçan Monastery properties was resolved by the KTA and the local courts leaves much to be desired. The KTA, instead of being concerned with legality, as required by UNMIK Regulation 1999/24, decided to give those properties to the Deçan Monastery through a bilateral agreement. This is an example of how a political action has been used to resolve an issue that should have been clarified by substantive interpretations of the courts. The courts, on the other hand, have not seen it reasonable or possible to engage in interpretations, even in the form of obiter dictum (a lateral interpretation), to assess whether the UNMIK KTA in 2009 (i.e. one year after independence) possessed the mandate to make such a deal and whether such a deal, which is based on a controversial decision from 1997, can be accepted as legal.
In the legal field, it is well known that 'hard cases make bad law' and this case is an example of this. However, based on what was said above, state institutions have no choice but to implement the KTA agreement with the Deçan Monastery, legalized through the highest local courts. Any other case constitutes an action against the rule of law and only delays a process that is already procedurally concluded.
However, in such a reality, it is important that our institutions take conscious action to prevent the creation of a precedent. The Assembly of Kosovo could do this by enacting a law that clarifies the legal status of certain laws and decisions from the 90s as provided for in the UNMIK Regulation, and that requires substantive interpretation by the courts of such legal issues in accordance with human rights standards.
Kushtrim Istrefi, Assistant Professor of International Law and Human Rights at Utrecht University, Netherlands
edition
t7 live
