Serbia Handbook for Legal Aid Providers Final

These rights have been highlighted in the Universal Declaration of Human Rights of 1945 (UDHR).
Other international instruments of relevance include the International Covenant of Civil and Political
Rights 26 (ICCPR) and the International Covenant on Economic, Social or Cultural Rights
(ICESCR). 27 28 In addition, the Committees that monitor the implementation of both the ICCPR and
ICESCR have elaborated on these rights in greater detail..
The Right to Housing and Property Restitution
Restitution
“All refugees and displaced persons have the right to have restored to them any housing, land and/or
property of which they were arbitrarily or unlawfully deprived, or to be compensated for any housing,
land and/or property that is factually impossible to restore as determined by an independent,
impartial tribunal.
States shall demonstrably prioritize the right to restitution as the preferred remedy for displacement
and as a key element of restorative justice. The right to restitution exists as a distinct right, and is
prejudiced neither by the actual return nor non-return of refugees and displaced persons entitled to
housing, land and property restitution. 29
Pinheiro states that the term “restitution refers to an equitable remedy (or a form of restorative
justice) by which individuals or groups of persons who suffer loss or injury are returned as far as
possible to their original pre-loss or pre-injury position.”
He goes further into the right for restitution and states that the right to a remedy for human rights
violations has perhaps been best articulated in the Basic Principles and Guidelines on the Right to a
Remedy and Reparation for Victims of Gross Violations of International Human Rights and Serious
Violations of International Humanitarian Law (2005). Furthermore “restitution should, whenever
possible, restore the victim to the original situation before the gross violations of human rights law or
serious violations of international humanitarian law occurred. Restitution includes, as appropriate:
restoration of liberty, enjoyment of human rights, identity, family life and citizenship; return to one’s
place of residence, restoration of employment and return of property.” 30
The importance of the right of restitution in the Kosovo and Metohija context cannot be emphasized
enough, as it addresses not only the right for return of one’s property but also the right to have one’s
life restored. The fact that most of these rights were lost while Kosovo and Metohija was under the
administration of the United Nations is significant.
Pinheiro states that the terms– housing, land and property restitution - is a composite term
developed on the basis of dozens of legal and other standards that have been adopted in past
decades explicitly or implicitly recognizing the restitution rights of refugees and displaced persons.
26
ICCPR Article 17.1 “No one shall be subjected to arbitrary or unlawful interference of his (or her) privacy, family, home or
correspondence, nor to unlawful attacks on his honor or reputation.”
27
ICESCR Article 11.1 “The State Parties to the present Covenant recognize the right of everyone to an adequate
standard of living for himself and his family, including adequate food clothing and housing and to the continuous
improvement of living conditions.”
28
UDHR Article 17(1) “Everyone has the right to own property either alone as well as in association with others, and that
(2) No one shall be arbitrarily deprived of his property.
29
The United Nations Principles on Housing and Property Restitution for Refugees and Displaced Persons, Section 2.1 and
2.2.
30 Ibid