Marek Antoni Nowicki Ombudsperson OMBUDSPERSON ...

Marek Antoni Nowicki
Ombudsperson
OMBUDSPERSON INSTITUTION in KOSOVO
INSTITUCIONI I OMBUDSPERSONIT në KOSOVË
INSTITUCIJA OMBUDSPERSONA na KOSOVU
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Address: Agim Ramadani Str. (Ex "Kosovodrvo" building), 10000 Pristina, KOSOVO
Adresa: Rr. Agim Ramadani (Ish ndërtesa "Kosovodrvo"), 10000 Prishtinë, KOSOVA
Adresa: Ul. Agim Ramadani (Bivša zgrada "Kosovodrvo"), 10000 Priština, KOSOVO
Tel: ++381 (0) 38 501 401, 545 303, 540 447, 548 087, Fax: ++381 (0) 38 545 302
e-mail: ombudspersonkosovo@ombudspersonkosovo.org
web site: www.ombudspersonkosovo.org
21 December 2005
Mr. Søren Jessen-Petersen
Special Representative of the UN Secretary-General
Dear Mr. Jessen-Petersen,
By way of this letter, I would like to draw your attention to numerous complaints that we
have been receiving regarding the obstacles some of our applicants, mainly of Serbian
ethnicity, have been experiencing when attempting to be part of the privatization of
former socially-owned enterprises where they used to work.
In most of these cases, these Serbian workers allege that for discriminatory reasons, they
were dismissed or obliged to leave in 1999, right after the end of the armed conflict in
Kosovo. Since through allegedly no fault of their own, they thus no longer worked for
their enterprises at the time when privatization proceedings began, they are now not part
of this process. A number of them have lodged complaints with the Special Chamber of
the Supreme Court on Kosovo Trust Agency-Related matters, but have had obvious
difficulties proving that they had suffered from discrimination.
According to Section 10 of UNMIK Regulation No. 2003/13 on the Transformation of
the Right of Use to Socially-Owned Immovable Property, employees of former sociallyowned
enterprises are eligible to receive a share of the proceeds from the privatisation of

such enterprises on a priority basis if they have been registered as employees with such
socially-owned enterprises at the time of privatization and have been on the payroll of the
enterprise for no less than three years. It is up to the representative bodies of employees
in the socially-owned enterprises concerned, in cooperation with the Federation of
Independent Trade Unions of Kosovo, to submit to the Kosovo Trust Agency, a list of
eligible employees entitled to receive payments in connection to the privatization process.
According to Section 10.4 of the above Regulation, employees who claim that they
would have been registered and employed in the manner described above, had they not
been subject to discrimination, are not precluded from submitting a complaint to the
Special Chamber of the Supreme Court on Kosovo Trust Agency-Related Matters.
While the above provision implies that the persons complaining about discrimination are
thus held to prove the discrimination, I note that such a manner of regulating the process
of privatization does not comply with European standards in the field of nondiscrimination,
which have seen a shift of the burden of proof from the person
complaining about discrimination to the respondent party, whenever a prima facie case
for discrimination may be constructed. Examples of European instruments where this
fundamental principle has been clearly stated are Directives 2000/43/EC and 2000/78/EC
of the Council of the European Union, while the same principle is set out in Article 8 of
the Kosovo Anti-Discrimination Law.
In order to adapt the relevant provisions of UNMIK Regulation No. 2003/13 to the
above-mentioned basic standards, I strongly urge you to ensure that said provisions be
amended in order to ensure that in the field of privatization as well, the problems
connected to actually proving that discrimination has occurred will no longer be an issue.
In this context, I should remind you that this issue is of particular importance bearing in
mind the large number of people affected by the above provisions.
Thank you for your cooperation in this matter.
Sincerely,
Marek Antoni Nowicki
Ombudsperson
cc: Mr. Tudor Pantiru, President of the Special Chamber of the Supreme Court for
Kosovo Trust Agency-Related Matters
Mr. Jasper Dick, Managing Director of the Kosovo Trust Agency