January 21, 2022
We, civil society organizations for human rights, through this letter express our disappointment and our concern on a number of provisions of the Draft Civil Code and on the process through which our positions, comments and proposals regarding the regulation of marriage have been avoided for persons of the same sex.
We remind the Government of the Republic of Kosovo that we have supported and been partners with the Working Group within the Ministry of Justice and with the Civil Code Project funded by the European Union. Even in the meetings of the Working Group of the Ministry of Justice for the Civil Code, we have received a clear commitment from the Ministry of Justice that is in favor of the Civil Code regulating marriage in accordance with the Constitution of the Republic of Kosovo.
However, the Government of the Republic of Kosovo, in the meeting dated 29.12.2021, has approved the Draft Civil Code, whereas we have received promises from the Ministry of Justice that we will continue to work together on how the content of the Draft Civil Code should be brought into compliance with the Constitution and the rights guaranteed in our constitutional and legal order. With the approval of the Draft Civil Code, in its current content, the Government of Kosovo has violated the Constitution and violated the fundamental rights guaranteed in our Constitutional and legal order. The Ministry of Justice and the Civil Code Project have avoided and ignored our concrete positions and proposals regarding marriage and cohabitation.
The Draft Civil Code defines marriage as a legally registered union between two persons of different sexes. It also defines that men and women have the right to marry and form a family. The draft Civil Code does not regulate marriage between persons of the same sex, but foresees the possibility of creating registered civil unions, but the conditions and procedures are foreseen to be regulated by a separate law. All possible partnerships (marriage or cohabitation) must be regulated by the Civil Code. This approach of regulating cospartnerships and partnership procedures between persons of the same sex with a separate law tends to separate the right to partnership for LGBTI persons from those of other citizens of Kosovo, while the conditions and procedures are regulated in the Draft Civil Code for marriage and cohabitation between husband and wife. Such an approach is a fundamental violation of the human rights of LGBTI persons in Kosovo, and does not represent the comprehensiveness of the rights of the citizens of Kosovo.
The Constitution of the Republic of Kosovo guarantees the right to marry and create 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 creating families. Furthermore, the Constitution of Kosovo also provides other layers of protection of basic 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 the direct applicability of the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols in the internal legislation of Kosovo, and determines that in case of conflict of legal provisions they prevail. Further, in accordance with Article 53 of the Constitution of Kosovo, basic human rights must be interpreted in harmony with the judicial practices of the European Court of Human Rights. (“GJEDNj”)
Consequently, by regulating marriage and cohabitation as relationships allowed only for persons of the opposite sex, initially the Ministry of Justice and now the Government of Kosovo have deeply violated human rights and equality before the law.
We remind the Ministry of Justice that in order to avoid this situation we have constantly sought and have been involved in the debate, but not taking into account our position on this issue is unacceptable.
We call on institutions, international organizations and representatives of diplomatic corps working in the field of the rule of law and human rights in Kosovo, to encourage and condition their assistance with the progress that Kosovo made in guaranteeing human rights in equally for all. We will continue to use all the legal and institutional tools and mechanisms for the harmonization of the Civil Code in accordance with the Constitution of the Republic of Kosovo.
Center of Social Groups Development – CSGD
Center for Equality and Liberty – CEL Kosovo
Kosovo Women’s Network – RrGK
Civil Rights Defenders Kosovar Center for Gender Studies – KKSGJ
Youth Initiative for Human Rights – YIHR-KS
