Center for the Development of Social Groups – CSGD and Center for Equality and Freedom – CEL consider that the Draft Civil Code violates partnership rights (marriage or extramarital affairs) for LGBTI persons in Kosovo and agrees with the legal interpretation of People’s Advocate Hilmi Jashari that has also identified the same human rights violations in the Draft Civil Code.
The Civil Code draft defines marriage as a legally registered union between two persons of different sexes. It also stipulates that husband and wife have the right to marry and to found a family. Further, the Draft Civil Code provides for the possibility of establishing other civil unions by a separate law. All possible partnerships (marriage or extramarital affairs) should be regulated by the Civil Code. This approach of regulating other partnerships with specific laws tends to separate the right to partnership for LGBTI persons from those of other Kosovo citizens. Such an approach is a fundamental violation of the human rights of LGBTI people in Kosovo, and does not represent the inclusion of the rights of Kosovo citizens.
The Ministry of Justice has published the Draft Civil Code of the Republic of Kosovo. While the Ministry of Justice has described the code as “a modern civil code”, after a quick glance it can be understood that this draft leaves much to be desired. The Draft Civil Code has failed to provide legal recognition of the partnership status of same sex couples (of extramarital affairs or marriage) and denies these persons the right to form a family. Failure to regulate same-sex partnerships in the Draft Civil Code by a working group formed by the Ministry of Justice is a discriminatory approach based on sexual orientation.
The Constitution of Kosovo guarantees the right to marry and to found a family. It is clear that there is no defined gender in the Constitution of Kosovo, which would prevent same-sex couples from marrying and forming families. Further, the Constitution of Kosovo provides other layers of protection of fundamental human rights. Article 24 of the Constitution – Equality before the law guarantees that every person enjoys the right to legal protection without discrimination including sexual orientation as a protected basis. The Constitution allows for the direct application of the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols to Kosovo’s domestic legislation, and stipulates that in case of conflict of law provisions shall prevail. Further, in accordance with Article 53 of the Constitution of Kosovo, fundamental human rights must be interpreted in accordance with the case law of the European Court of Human Rights. ( “ECtHR”)
The European Court of Human Rights has recognized the same-sex community as partners in the Human Rights Convention in its articles on “Family Life”. The ECtHR has also made a number of judgments about the positive obligation of states to legally recognize same-sex partnerships. The working group has failed to apply the practices of the European Court of Human Rights and has failed to draft legislation that is inclusive and non-discriminatory based on sexual orientation. It is clear that the Civil Code Draft excludes persons from the right to partnership and the right to form a family on the basis of sexual orientation. As such, it is discriminatory and violates Article
24 of the Constitution, which guarantees equality before the law and Article 37 of the Constitution, which guarantees the right to marriage and family. Therefore, the Draft Civil Code should be described in accordance with Kosovo’s obligations to ensure equal rights for all citizens and should provide recognition
legal same-sex couples.