Condensed: Various instruments provide for the rights of involuntarily displaced persons to (a) restitution of housing, land and property or (b) compensation where this is not possible. Involuntarily displaced persons include internally displaced persons, refugees, persons who may have fled across borders but do not fit the definition of refugee, victims of forced evictions, without discrimination. Restitution refers to an equitable remedy, or a form of restorative justice, by which persons who suffer loss or injury are returned as far as possible to their original pre-loss or pre-injury position. Restitution of housing and land is an appropriate remedy for all types of tenure. States are required to assist and facilitate the restitution of housing, land and property. Compensation is not an alternative to restitution and may only be provided if restitution is factually impossibleor the rights-holder knowingly and voluntarily chooses compensation. Comprehensive: The right to adequate housing may be violated through the denial of housing, land and property restitution in situations where people have been involuntarily or illegally displaced or resettled. See *involuntary/illegal displacement/resettlement*. Various instruments provide for the rights of involuntarily displaced persons to (a) restitution of property or (b) compensation where restitution is not possible.[1] Involuntary displaced persons may include refugees, internally displaced persons, or other similarly situated displaced persons who fled across national boarders but who may not meet the legal definition of refugee ‘who were arbitrarily or unlawfully deprived of their former homes, lands, properties or places of habitual residence, regardless of the nature or circumstances by which displacement originally occurred’.[2] The right to restitution of property applies to everyone without discrimination. Thus within the right to restitution of property is the implicit right of women to hold property.[3] Restitution involves the return of arbitrarily or illegally confiscated property to the original owner or rights-holder. It is ‘an equitable remedy, or a form of restorative justice, by which persons who suffer loss or injury are returned as far as possible to their original pre-loss or pre-injury position.’[4] In the case of displaced persons, restitution means the return of arbitrarily or illegally confiscated housing or property to the original owner or right holder.[5] Restitution of housing, land and property constitute a necessary component of the right to voluntary, safe, dignified and durable return for refugees and displaced persons.[6] Restitution of housing and land is an appropriate remedy for all types of tenure. Indeed, States should ensure that the rights of tenants, social-occupancy rights holders and other legitimate occupants or users of housing, land and property are recognized within restitution programmes.[7] States are required to assist and facilitate the return of refugees or displaced persons to their places of origin, and such assistance and facilitation includes the restitution of housing and property.[8] CERD urged Ukraine to ‘provide effective remedies to enable formerly deported persons, in particular Crimean Tatars, to claim restitution of their formerly confiscated property, or adequate compensation, and to ensure that formerly deported persons can obtain suitable plots of land, to the extent possible in areas which were traditionally inhabited by them’.[9] The lack of identity documents affects the prospects of displaced persons for the restitution of their property. The lack of title documents for housing, land and property similarly creates difficulties when it comes to restitution.[10] States are under an obligation to provide displaced persons with documents necessary for them to enjoy and exercise their legal rights.[11] The ECtHR has found a violation of Article 1(1) of the First Protocol to the ECHR on the right to peaceful enjoyment of ones possessions, in a case where the applicant complained of denial of restitution of flats in Bosnia and Herzegovina.[12] The applicant, born in Serbia, bought a flat in Sarajevo in Bosnia and Herzegovina. Despite having paid the full purchase price, he was unable to repossess it after the armed conflict or to register title to it. The Court found that a fair balance had not been struck between the right to peacefully enjoy ones possessions and the public interest, since among other reasons, the denial affected some ethnic groups unfairly.[13] The contested measures, which resulted in the denial of the applicant restitution of his flat, though apparently neutral, had the effect of treating people differently based on their ethnicity.[14] Compensation, which refers to a legal remedy by which a person receives monetary payment for harm suffered,[15] should not be understood to be an alternative to restitution, unless the affected party knowingly and voluntarily chooses compensation or restitution is not factually possible.[16] Denial of restitution of housing and property should thus be based on factual impracticability rather than legal, political or other reasons.[17] Thus, states should not adopt laws which result in the loss or removal of tenancy, use, ownership or other property rights, or retract rights to live in particular places or enact laws of abandonment against displaced persons as these prevent their return and reintegration.[18] [1] AU Convention for the protection and assistance of internally displaced persons in Africa (Kampala Convention) art 11(4)&(5); The UN Guidelines on Housing and Property Restitution for Refugees and Displaced Persons (The Pinheiro Principles) principle 2, 16; UN Guiding Principles on Internal Displacement (1998) E/CN.4/1998/53/Add.2, principle 29(2). See also CERD General Recommendation 22 (1996) para 2(c). [2] The UN Guidelines on Housing and Property Restitution for Refugees and Displaced Persons (The Pinheiro Principles) principle 1. [3] CHR ‘Housing and property restitution in the context of the return of refugees and internally displaced people’ Progress report of the Special Rapporteur E/CN.4/Sub.2/2004/22/Add.1 (2004) para 8. Pinheiro Principles principles 3 & 4. [4] CHR ‘Housing and property restitution in the context of the return of refugees and internally displaced people’ Progress report of the Special Rapporteur E/CN.4/Sub.2/2004/22/Add.1 (2004) para 5. [5] Preliminary report of Special Rapporteur Housing and Property Restitution ‘Housing and property restitution in the context of the return of refugees and internally displaced persons’ (2003) E/CN.4/Sub.2/2003/11 para 9. [6] CHR ‘The return of refugees’ or displaced persons’ property’ E/CN.4/Sub.2/2002/17
(2002) para 29. [7] The UN Guidelines on Housing and Property Restitution for Refugees and Displaced Persons (The Pinheiro Principles) principle 16.1. [8] CHR ‘The return of refugees’ or displaced persons’ property’ E/CN.4/Sub.2/2002/17
(2002) para 30. [9] CERD, Concluding Observations: Ukraine, UN Doc CERD/C/UKR/CO/18 (2006) para 15. [10] See Report of the Special Representative of the Secretary-General on the human rights of internally displaced persons: Follow-up visit to the mission to Serbia and Montenegro (including Kosovo) in 2005 (2009) A/HRC/13/21/Add.1 para 60 in which the situation of the Roma people in terms of restitution of housing is discussed. Internally displaced Roma in Kosovo lived in neighborhoods in which housing was passed down through generations without original title or inheritance being registered. [11] Guiding Principles on Internal Displacement, principle 20. [12]Dokic v Bosnia and HerzegovinaApplication no. 6518/04 (ECtHR 2010). See also Cyprus v Turkey, application 25781/94 (ECtHR 2001); Akdivar and Others v Turkey application 99/1995/605/693) (ECtHR 1998 (Article 50)), Menteş and Others v Turkey application 58/1996/677/867 (ECtHR 1998 (Article 50)); Loizidou v Turkey application 40/1993/435/514 (ECtHR 1998 (Article 50). [13]Dokic v Bosnia and Herzegovina application 6518/04 (ECtHR 2010) para 59-60. [14] As above. [15] Special Rapporteur on housing and property restitution ‘Commentary on the Draft Principles on Housing and Property Restitution for Refugees and Displaced Persons’ (2004) E/CN.4/Sub.2/2004/22/Add.1 para 43. [16] CHR ‘The return of refugees’ or displaced persons’ property’ E/CN.4/Sub.2/2002/17
(2002) para 57. See also Guiding Principles on Internal Displacement, principle 29(2); Pinheiro Principles principle 21; CERD General Recommendation 23 (1997) para 5. [17] CHR ‘The return of refugees’ or displaced persons’ property’ E/CN.4/Sub.2/2002/17
(2002) para 57 [18] CHR ‘The return of refugees’ or displaced persons’ property’ E/CN.4/Sub.2/2002/17
(2002) para 66.
Various instruments provide for the rights of involuntarily displaced persons to (a) restitution of housing, land and property or (b) compensation where this is not possible. Involuntarily displaced persons include internally displaced persons, refugees, persons who may have fled across borders but do not fit the definition of refugee, victims of forced evictions, without discrimination. Restitution refers to an equitable remedy, or a form of restorative justice, by which persons who suffer loss or injury are returned as far as possible to their original pre-loss or pre-injury position. Restitution of housing and land is an appropriate remedy for all types of tenure. States are required to assist and facilitate the restitution of housing, land and property. Compensation is not an alternative to restitution and may only be provided if restitution is factually impossible or the rights-holder knowingly and voluntarily chooses compensation.
Comprehensive:
The right to adequate housing may be violated through the denial of housing, land and property restitution in situations where people have been involuntarily or illegally displaced or resettled. See *involuntary/illegal displacement/resettlement*. Various instruments provide for the rights of involuntarily displaced persons to
(a) restitution of property or
(b) compensation where restitution is not possible.[1]
Involuntary displaced persons may include refugees, internally displaced persons, or other similarly situated displaced persons who fled across national boarders but who may not meet the legal definition of refugee ‘who were arbitrarily or unlawfully deprived of their former homes, lands, properties or places of habitual residence, regardless of the nature or circumstances by which displacement originally occurred’.[2] The right to restitution of property applies to everyone without discrimination. Thus within the right to restitution of property is the implicit right of women to hold property.[3]
Restitution involves the return of arbitrarily or illegally confiscated property to the original owner or rights-holder. It is ‘an equitable remedy, or a form of restorative justice, by which persons who suffer loss or injury are returned as far as possible to their original pre-loss or pre-injury position.’[4] In the case of displaced persons, restitution means the return of arbitrarily or illegally confiscated housing or property to the original owner or right holder.[5]
Restitution of housing, land and property constitute a necessary component of the right to voluntary, safe, dignified and durable return for refugees and displaced persons.[6] Restitution of housing and land is an appropriate remedy for all types of tenure. Indeed, States should ensure that the rights of tenants, social-occupancy rights holders and other legitimate occupants or users of housing, land and property are recognized within restitution programmes.[7]
States are required to assist and facilitate the return of refugees or displaced persons to their places of origin, and such assistance and facilitation includes the restitution of housing and property.[8] CERD urged Ukraine to ‘provide effective remedies to enable formerly deported persons, in particular Crimean Tatars, to claim restitution of their formerly confiscated property, or adequate compensation, and to ensure that formerly deported persons can obtain suitable plots of land, to the extent possible in areas which were traditionally inhabited by them’.[9]
The lack of identity documents affects the prospects of displaced persons for the restitution of their property. The lack of title documents for housing, land and property similarly creates difficulties when it comes to restitution.[10] States are under an obligation to provide displaced persons with documents necessary for them to enjoy and exercise their legal rights.[11]
The ECtHR has found a violation of Article 1(1) of the First Protocol to the ECHR on the right to peaceful enjoyment of ones possessions, in a case where the applicant complained of denial of restitution of flats in Bosnia and Herzegovina.[12] The applicant, born in Serbia, bought a flat in Sarajevo in Bosnia and Herzegovina. Despite having paid the full purchase price, he was unable to repossess it after the armed conflict or to register title to it. The Court found that a fair balance had not been struck between the right to peacefully enjoy ones possessions and the public interest, since among other reasons, the denial affected some ethnic groups unfairly.[13] The contested measures, which resulted in the denial of the applicant restitution of his flat, though apparently neutral, had the effect of treating people differently based on their ethnicity.[14]
Compensation, which refers to a legal remedy by which a person receives monetary payment for harm suffered,[15] should not be understood to be an alternative to restitution, unless the affected party knowingly and voluntarily chooses compensation or restitution is not factually possible.[16] Denial of restitution of housing and property should thus be based on factual impracticability rather than legal, political or other reasons.[17] Thus, states should not adopt laws which result in the loss or removal of tenancy, use, ownership or other property rights, or retract rights to live in particular places or enact laws of abandonment against displaced persons as these prevent their return and reintegration.[18]
[1] AU Convention for the protection and assistance of internally displaced persons in Africa (Kampala Convention) art 11(4)&(5); The UN Guidelines on Housing and Property Restitution for Refugees and Displaced Persons (The Pinheiro Principles) principle 2, 16; UN Guiding Principles on Internal Displacement (1998) E/CN.4/1998/53/Add.2, principle 29(2). See also CERD General Recommendation 22 (1996) para 2(c).
[2] The UN Guidelines on Housing and Property Restitution for Refugees and Displaced Persons (The Pinheiro Principles) principle 1.
[3] CHR ‘Housing and property restitution in the context of the return of refugees and internally displaced people’ Progress report of the Special Rapporteur E/CN.4/Sub.2/2004/22/Add.1 (2004) para 8. Pinheiro Principles principles 3 & 4.
[4] CHR ‘Housing and property restitution in the context of the return of refugees and internally displaced people’ Progress report of the Special Rapporteur E/CN.4/Sub.2/2004/22/Add.1 (2004) para 5.
[5] Preliminary report of Special Rapporteur Housing and Property Restitution ‘Housing and property restitution in the context of the return of refugees and internally displaced persons’ (2003) E/CN.4/Sub.2/2003/11 para 9.
[6] CHR ‘The return of refugees’ or displaced persons’ property’ E/CN.4/Sub.2/2002/17
(2002) para 29.
[7] The UN Guidelines on Housing and Property Restitution for Refugees and Displaced Persons (The Pinheiro Principles) principle 16.1.
[8] CHR ‘The return of refugees’ or displaced persons’ property’ E/CN.4/Sub.2/2002/17
(2002) para 30.
[9] CERD, Concluding Observations: Ukraine, UN Doc CERD/C/UKR/CO/18 (2006) para 15.
[10] See Report of the Special Representative of the Secretary-General on the human rights of internally displaced persons: Follow-up visit to the mission to Serbia and Montenegro (including Kosovo) in 2005 (2009) A/HRC/13/21/Add.1 para 60 in which the situation of the Roma people in terms of restitution of housing is discussed. Internally displaced Roma in Kosovo lived in neighborhoods in which housing was passed down through generations without original title or inheritance being registered.
[11] Guiding Principles on Internal Displacement, principle 20.
[12] Dokic v Bosnia and Herzegovina Application no. 6518/04 (ECtHR 2010). See also Cyprus v Turkey, application 25781/94 (ECtHR 2001); Akdivar and Others v Turkey application 99/1995/605/693) (ECtHR 1998 (Article 50)), Menteş and Others v Turkey application 58/1996/677/867 (ECtHR 1998 (Article 50)); Loizidou v Turkey application 40/1993/435/514 (ECtHR 1998 (Article 50).
[13] Dokic v Bosnia and Herzegovina application 6518/04 (ECtHR 2010) para 59-60.
[14] As above.
[15] Special Rapporteur on housing and property restitution ‘Commentary on the Draft Principles on Housing and Property Restitution for Refugees and Displaced Persons’ (2004) E/CN.4/Sub.2/2004/22/Add.1 para 43.
[16] CHR ‘The return of refugees’ or displaced persons’ property’ E/CN.4/Sub.2/2002/17
(2002) para 57. See also Guiding Principles on Internal Displacement, principle 29(2); Pinheiro Principles principle 21; CERD General Recommendation 23 (1997) para 5.
[17] CHR ‘The return of refugees’ or displaced persons’ property’ E/CN.4/Sub.2/2002/17
(2002) para 57
[18] CHR ‘The return of refugees’ or displaced persons’ property’ E/CN.4/Sub.2/2002/17
(2002) para 66.