Serbia Handbook for Legal Aid Providers Final

Physical return is not the only option. First and foremost, it must be recognised that the right to
return is not an obligation to return. Return cannot be restricted, and conversely it cannot be
imposed. The right to housing and property restitution should not be made conditional on the
physical return of someone who has been displaced from their home or place of habitual residence,
and that these rights remain valid notwithstanding whether return actually takes place.
In some settings, return may be impossible, irresponsible or illegal due to the security situation or
potential threats, but a person with a restitution right may wish to exercise rights over that property
without physically returning there, as has been the case with IDPs allowing their properties to be
administered by the KPA until they return.
Particularly crucial in these contexts, of course, are the expressed wishes of those holding restitution
rights; beneficiaries of these rights can neither be forced to return, nor forced to accept a resolution
of their restitution claims.
Pinheiro points out that in the case of IDPs from Kosovo and Metohija, only a small fraction of those
with successful restitution claims, some 12% - actually chose to seek physical repossession of their
properties; in this instance because of serious security threats were they to return to their legitimate
homes. More than 40% of those making restitution claims settled their cases with the current
secondary occupant through mediation, which involved selling the property and sometimes leasing
or renting the properties in question..
When return is simply not possible or is not desired, the displaced can benefit from restitution
programmes that enable them to re-assert control over their homes and lands by selling, leasing or
renting out their houses or lands. But it must again be emphasised that such wishes must emanate
from the IDPs themselves, not imposed upon them as the lesser of two possible bad choices.
Compensation 40
“…displaced persons have the right to full and effective compensation as an integral component of
the restitution process. Compensation may be monetary or in kind. States shall, in order to comply
with the principle of restorative justice, ensure that the remedy of compensation is only used when
the remedy of restitution is not factually possible, or when the injured party knowingly and voluntarily
accepts compensation in lieu of restitution, or when the terms of a negotiated peace settlement
provide for a combination of restitution and compensation.” 41
Clients’ home in Kosovo Polje was burned down in the riots of March 2004. A year
later the local government had offered to rebuild his home. In that time all of his
neighbours sold their homes, all the previous shops had closed, the demographics of
the neighbourhood had changed dramatically and his children moved away to
Kraljevo. In addition, the majority of the homes that were rebuilt by the local
government were done so poorly that they were completely inhabitable and needed
to be rebuilt. Client demanded compensation in lieu of reconstruction so he could
rebuild somewhere else, arguing that it was now impossible for restitution in Kosovo
Polje.
40 Pinhiero Principles, Section 21
41 Ibid 21(1)