The Right of Ownership and Legal Protection in Kosovo’
Summary: 1. Introduction. – 2. Problems of defining and understanding of property rights. – 2.1. Definition of property rights under civil laws and codes. – 2.2. Understanding and methods of protection of property. – 3. Protection of property rights in Kosovo. – 3.1. Actio rei vindication. – 3.2. Actio publiciana (the lawsuit from the alleged property right). – 3.3. Actio nagatoria (negative lawsuit due to obstruction of ownership). – 4. Conclusions.
Background: The Republic of Kosovo is a country located in Southeast Europe with partial diplomatic recognition. Kosovo declared its independence on 17 February 2008, and has since gained diplomatic recognition from 116 member states of the United Nations. On 22 July 2010, the International Court of Justice rendered an advisory opinion on the legality of Kosovo’s declaration of independence, which was not in violation of neither general principles of international law, nor specific international law. In 2022, Kosovo filed a formal application to become a member of the European Union.
In the Republic of Kosovo, the Constitution is the highest legal act. Laws and other legal acts shall be in accordance with this Constitution. Civil law is not codified but divided into separate laws. The property right is regulated by the Law on Property and Other Real Rights Law No. 03/ L-154. Property rights and other real rights in the Republic of Kosovo originate from this law.
Keeping this in mind, in our article, we are going to highlight the range of problems related to property rights’ regulation and protection, including gaps in primary and secondary legislation, analysing case law, courts, state attorneys, and administrative authorities’ activities.
Methods: In this paper, we analyse the institution of property rights. We used comparative and analytical methods based on the current legislation in Kosovo, utilising resources from the former Yugoslavia. Additionally, we used some historical methods to derive concrete results. Kosovo has inherited the relics of the former Yugoslav legal system; building a new system is a challenge in and of itself. In the context of property law in general, its legal protection is crucial for the owner to use and dispose of his property.
Results and Conclusions: With the knowledge that the institution of property law is one of the main institutions of civil law, and is the fundamental institution of real law, we have analysed this law institution as a constitutional principle, regulated by special laws in Kosovo. Additionally, given the importance of the property institution, Kosovo has adopted laws that protect property rights, enjoying civil legal protection, criminal legal protection, and international protection. These laws should be in accordance with the country’s Constitution, with international human rights instruments, as well as with EU legislation.
Abstract
Background: The Republic of Kosovo is a country located in Southeast Europe with partial diplomatic recognition. Kosovo declared its independence on 17 February 2008, and has since gained diplomatic recognition from 116 member states of the United Nations. On 22 July 2010, the International Court of Justice rendered an advisory opinion on the legality of Kosovo’s declaration of independence, which was not in violation of neither general principles of international law, nor specific international law. In 2022, Kosovo filed a formal application to become a member of the European Union.
In the Republic of Kosovo, the Constitution is the highest legal act. Laws and other legal acts shall be in accordance with this Constitution. Civil law is not codified but divided into separate laws. The property right is regulated by the Law on Property and Other Real Rights Law No. 03/ L-154. Property rights and other real rights in the Republic of Kosovo originate from this law.
Keeping this in mind, in our article, we are going to highlight the range of problems related to property rights’ regulation and protection, including gaps in primary and secondary legislation, analysing case law, courts, state attorneys, and administrative authorities’ activities.
Methods: In this paper, we analyse the institution of property rights. We used comparative and analytical methods based on the current legislation in Kosovo, utilising resources from the former Yugoslavia. Additionally, we used some historical methods to derive concrete results. Kosovo has inherited the relics of the former Yugoslav legal system; building a new system is a challenge in and of itself. In the context of property law in general, its legal protection is crucial for the owner to use and dispose of his property.
Results and Conclusions: With the knowledge that the institution of property law is one of the main institutions of civil law, and is the fundamental institution of real law, we have analysed this law institution as a constitutional principle, regulated by special laws in Kosovo. Additionally, given the importance of the property institution, Kosovo has adopted laws that protect property rights, enjoying civil legal protection, criminal legal protection, and international protection. These laws should be in accordance with the country’s Constitution, with international human rights instruments, as well as with EU legislation.
About Authors
Berat Aqifi
Ph.D. (Law), Associate Professor, Faculty of Law, University “Ukshin Hoti”, Prizren, Republic of Kosovo; Haxhi Zeka University, Peja, Republic of Kosovo berat.aqifi@uni-prizren.com https://orcid.org/0000-0001-5020-4608
Co-author, responsible for the conceptualization, the exploration of sources, and their analysis and interpretation. Competing interests: Any competing interests were declared by authors. Disclaimer: The authors declare that their opinion and views expressed in this manuscript are free of any impact of any organizations.
Petrit Nimani
Ph.D. (Law), Assistant Professor, Faculty of Law, Haxhi Zeka University, Peja, Republic of Kosovo petrit.nimani@unhz.eu https://orcid.org/0000-0003-2472-0996
Corresponding author, responsible for the concept creation, research methodology and writing.
Artan Maloku
Doctoral Student at the Faculty of Law, University St. Kliment Ohridski, Bitola, North Macedonia;
Assistant at the Faculty of Law, Haxhi Zeka University, Republic of Kosovo artan.maloku@unhz.eu https://orcid.org/0000-0002-8889-4664
Co-author, responsible for the conceptualization, writing and data collection.
Translation: The content of this article was translated with the participation of third parties under the authors’ responsibility.
Managing editor – Mag. Yuliia Hartman, English Editor – Nicole Robinson.
Copyright: © 2023 Berat Aqifi, Petrit Nimani and Artan Maloku. This is an open access article distributed under the terms of the Creative Commons Attribution License, (CC BY 4.0), which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited.
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Keywords
- ownership, civil codes, law, legal protection, Kosovo.
Publication history
- Submitted on 18 May 2023 / Revised 1st 1 Jun 2023 / Revised 2nd 10 Jun 2023 Approved 03 Jul 2023 / Published: 1 Aug 2023
How to cite it?
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B Aqifi, P Nimani, A Maloku ‘The Right of Ownership and Legal Protection in Kosovo’ 2023 3 (20) Access to Justice in Eastern Europe 221-231. https://doi.org/10.33327/AJEE-18-6.3-a000310
