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Resolution 1708 (2010) Final version
Solving property issues of refugees and internally displaced persons
1. The displacement of millions of
people worldwide is one of the key human rights and humanitarian challenges
of our time. For both refugees and internally displaced persons
(IDPs) the loss of housing, land and property is the foremost challenge
to the achievement of durable solutions to displacement.
2. As many as 2.5 million refugees and IDPs face this situation
in Council of Europe member states, particularly in the North and
South Caucasus, the Balkans and the eastern Mediterranean. Displacement
in Europe is often protracted, with affected persons unable to return
to or access their homes and land since the 1990s and earlier.
3. The destruction, occupation and confiscation of abandoned
property violate the rights of the individuals concerned, perpetuate
displacement and complicate reconciliation and peace-building. Therefore,
the restitution of property – that is, the restoration of rights
and physical possession in favour of displaced former residents
– or compensation, are forms of redress necessary for restoring
the rights of the individual and the rule of law.
4. The Parliamentary Assembly considers that restitution is the
optimal response to the loss of access and rights to housing, land
and property because, alone among forms of redress, it facilitates
choice between three “durable solutions” to displacement: return
to one’s original home in safety and dignity; local integration
at the site of displacement; or resettlement either at some other
site within the country of origin or outside its borders.
5. The Assembly recalls that Council of Europe instruments include
several guarantees, notably Articles 6, 8, 13 and 14 of the European
Convention on Human Rights (ETS No. 5), Article 1 of its Protocol
No. 1 and Article 2 of its Protocol No. 4, Article 31 of the revised
European Social Charter (ETS No. 163) and Article 16 of the Framework
Convention for the Protection of National Minorities (ETS No. 157).
6. The Assembly also draws attention to the United Nations Principles
on Housing and Property Restitution for Refugees and Displaced Persons
(the Pinheiro Principles) designed to provide guidance on how to
address issues on redress for loss of property.
7. The Assembly refers to Recommendation Rec(2006)6 of the Committee
of Ministers on internally displaced persons, which confirms the
rights of IDPs to the enjoyment of their property and possessions
and to repossess property left behind, failing which they should
be provided with adequate compensation.
8. The Assembly emphasises that all member states must refrain
from and prevent arbitrary displacement and dispossession and provide
effective domestic remedies and redress where they fail to do so.
9. In the light of the above, the Assembly calls on member states
to resolve post-conflict housing, land and property rights issues
of refugees and IDPs, taking into account the Pinheiro Principles,
the relevant Council of Europe instruments and Recommendation Rec(2006)6
of the Committee of Ministers.
10. Bearing in mind these relevant international standards and
the experience of property restitution and compensation programmes
carried out in Europe to date, member states are invited to:
10.1. guarantee timely and effective
redress for the loss of access and rights to housing, land and property
abandoned by refugees and IDPs without regard to pending negotiations
concerning the resolution of armed conflicts or the status of a
particular territory;
10.2. ensure that such redress takes the form of restitution
in the form of confirmation of the legal rights of refugees and
displaced persons to their property and restoration of their safe
physical access to, and possession of, such property. Where restitution
is not possible, adequate compensation must be provided, through
the confirmation of prior legal rights to property and the provision
of money or goods having a reasonable relationship to their market
value, or other forms of just reparation;
10.3. ensure that refugees and displaced persons who did not
have formally recognised rights prior to their displacement, but
whose enjoyment of their property was treated as de facto valid
by the authorities, are accorded equal and effective access to legal
remedies and redress for their dispossession. This is particularly
important where the affected persons are socially vulnerable or
belong to minority groups;
10.4. ensure that previous occupancy and tenancy rights with
regard to public or social accommodation or other analogous forms
of home ownership which existed in former communist systems are
recognised and protected as homes in the sense of Article 8 of the
European Convention on Human Rights and as possessions in the sense
of Article 1 of Protocol No. 1 to that convention;
10.5. ensure that the absence from their accommodation of holders
of occupancy and tenancy rights who have been forced to abandon
their homes shall be deemed justified until the conditions that
allow for voluntary return in safety and dignity have been restored;
10.6. provide rapid, accessible and effective procedures for
claiming redress. Where displacement and dispossession have taken
place in a systematic manner, special adjudicatory bodies should
be set up to assess claims. Such bodies should apply expedited procedures
that incorporate relaxed evidentiary standards and facilitated procedure.
All property types relevant to the residential and livelihood needs
of displaced persons should be within their jurisdiction, including
homes, agricultural land and business properties;
10.7. secure the independence, impartiality and expertise of
adjudicatory bodies, including through appropriate rules on their
composition that may provide for the inclusion of international
members. Sufficient funding must be provided to such bodies and
relevant law-enforcement bodies must be legally bound to enforce
their decisions;
10.8. ensure the effectiveness of redress through restitution
of, or, where necessary, compensation for the value of abandoned
property by adopting the following measures:
10.8.1. compensation
for non-pecuniary damage related to the circumstances in which displacement
and dispossession occurred and were perpetuated;
10.8.2. compensation for damage suffered as a result of displacement
and lack of access to abandoned properties, such as loss of income
and costs that would not have been incurred had they not been forced
to leave;
10.8.3. compensation for wrongful destruction or damage to immovable
property or loss of significant moveable property attributable to
acts or omissions on the part of the authorities in whose jurisdiction
the property is located;
10.8.4. assistance and reintegration measures to facilitate durable
solutions, such as the establishment of conditions of security,
reconstruction of homes and infrastructure at return sites, and
social and economic support to all displaced persons, regardless
of whether or not they choose to return to their homes of origin;
10.8.5. public acknowledgment of any responsibility for displacement-related
human rights violations by the competent authorities, full investigation
and disclosure of such violations and for which individual perpetrators
should be held to account;
10.9. ensure, where relevant, that effective remedies and redress
for loss of access and rights to property are integrated into broader
reparation programmes for recurrent human rights violations.
11. Member states directly affected by property claims related
to displacement are:
11.1. invited
to seek technical assistance from and co-operate with other member
states as well as with international organisations with relevant
legal and technical expertise;
11.2. encouraged to work with academic and civil society actors,
as well as national human rights institutions, to generate reliable
information on the number and nature of property claims, formulate proposals
for procedures to address such claims, monitor their implementation,
identify obstacles and measures to address them, and disseminate
information and legal advice to persons affected;
11.3. encouraged to consult directly with displaced persons
and include them in the design and implementation of procedures
and redress for property loss. Information on such procedures, including deadlines
or other conditions for lodging claims, must be made available to
all affected persons in a language they understand. It is of particular
importance that such participatory processes seek out and take into
account the views of vulnerable groups, such as female heads of
household and minority groups, while respecting the security and
right to privacy of all affected persons.
12. The United Nations High Commissioner for Refugees (UNHCR)
and the Organization for Security and Co-operation in Europe (OSCE)
are commended for highlighting displacement-related property issues
in Europe within their respective mandates and are encouraged to
continue and broaden their efforts to ensure the resolution of such
property issues at national level.