Page:SECOND ANNUAL REPORT 2001 – 2002.pdf/14



In this Report, the Ombudsperson found that UNMIK Regulation 2001/17 was not 'in accordance with law' in the sense of the European Convention on Human Rights. The Ombudsperson also found that the restrictions on guaranteed rights permitted by the Regulation could not be considered `necessary in a democratic society' for legitimate governmental aims.

The Ombudsperson further found that UNMIK Regulation 2001/17 was incompatible with Article 1 of Protocol No. 1 to the Convention, in that UNMIK could prevent individuals from selling their property without compensating the property owners and Article 8 of the Convention and Article 2 of Protocol No. 4 to the Convention, in that UNMIK could restrict the right of individuals to choose where to locate their homes. The Ombudsperson also found a violation of Article 14, in that the Regulation was based on impermissible distinctions based on the ethnicity of those affected, and Article 18, in that the Regulation imposed restrictions on rights for purposes that are not permitted under the Convention.

The Ombudsperson recommended that the Special Representative of the Secretary General of the United Nations, no later than 15 November 2001, abolish UNMIK Regulation 2001/17 and Administrative Direction 2001/16 which was issued for its implementation and should issue a new Administrative Direction declaring null and void any decision to refuse to register a contract for the sale of real property taken pursuant to UNMIK Regulation 2001/17 and/or Administrative Direction 2001/16.

In a letter dated 17 April 2002, the SRSG described the provisions of UNMIK Regulation No. 2001/17 and stated that it had been promulgated 'after extensive negotiations and consultations with all concerned to address concerns about the adverse effect upon the demographic balance in Kosovo resulting from involuntary or otherwise inappropriate sales of minority-owned residential real property … we are closely monitoring the application of the Regulation and will take appropriate steps where necessary.' (See also Summary of the Report in the case, `Ex officio Registration No. 24/2002 regarding the refusal of UNMIK to register a contract for the sale of a residential property in Lipjan/Lipljan', below at p. 28).