Displaced Kosovo Roma and Property Rights

Article excerpt

The lack of secure property rights heightens the risk of statelessness for displaced Kosovo Roma in Montenegro.

Kosovo's declaration of independence on 17 February 2008 raised the question of statelessness for persons originating from Kosovo. A large number of Roma, Ashkali and Egyptians displaced from Kosovo are presumed not to be registered as residents in Montenegro.1 Lack of personal documents, property records and registered land titles exacerbates the problem and increases the probability that they will remain stateless. According to Amnesty International, 4,300 are living in Montenegro in a "legal limbo".2 In August 2008, UNHCR published a statement suggesting that some 46% of displaced Kosovo Roma living around the Montenegrin capital, Podgorica, can neither prove legal residence in Kosovo nor meet the necessary requirements to obtain Montenegrin citizenship and thus may be stateless.

Prior to Kosovo's armed conflict, many Roma families lived in mahalas (neighbourhoods) in housing that had been handed down to them for generations. The legal entitlements to these dwellings were never clear, for a number of reasons including unregistered inheritance, illegal construction (which Yugoslav municipal authorities ignored) or, quite simply, lack of a formal address.

Right to be protected

An individual displaced from an informal settlement across the border from a newly created state has certain rights under international law to protect their citizenship. As well as the right to a nationality and the prohibition against the deprivation of nationality of individuals, particularly as a result of discriminatory practices, the Council of Europe Convention on Nationality3 of 1997 also considers the problematic issue of state succession. In cases where a new state is created, the decision on the granting or retention of nationality should, according to the Convention, take into account a) a 'genuine and effective' link with the state, b) their habitual residence, c) their wishes and d) their place of origin.

Landlessness and/or inability to present cadastral records, certified contracts, registered inheritance certificates and other propertyrelated documents, plus the fundamental problem of missing personal civil registry documents, increase the likelihood that displaced people will be stateless.

The Constitution of Kosovo and its Law on Citizenship sets out the requirements to become a citizen; all persons who were citizens of the Federal Republic of Yugoslavia on 1 January 1998 and were at that time habitually resident in Kosovo can be registered as citizens.

However, Roma displaced across borders will in some cases have a hard time proving this. Moreover, those who left Kosovo before then will have to seek naturalisation, which requires five years' residence in Kosovo. An exception to the fiveyear rule is possible if the individual is able to demonstrate that he or she is a part or direct descendent of the 'Kosovo Diaspora', broadly defined as the group that has maintained 'close family and economic links in Kosovo'. Without land titles and civil registration documents this will be more difficult.

Montenegro's Citizenship Law also requires five years of residence for people from one of the constituent Republics of the former Yugoslavia before they can apply for citizenship. As in Kosovo, many displaced Kosovo Roma have neither personal civil registration documents nor proof of habitual residence.

Both problems could be addressed through appropriate action by the public authorities of both Kosovo and Montenegro to a) regularise the housing and property situation of the displaced Roma and b) ensure and promote their access to civil registration.

Housing and property rights

It would be easier to prove habitual residence if adequate property rights protection were actually in place. Decades of informal settlement formation and the impact of armed conflict have created a nightmarish property situation, which drives human rights organisations, legal aid offices and well-intentioned international agencies to despair. …