July 8, 2020
Civil society organizations, undersigned below, consider that the Project-Civil Code violates the rights to partnership (marriage or civil union) for LGBTI persons in Kosovo.
The Project-Civil Code defines marriage as a legally recognized union between two spouses of different sexes. It also defines that Husband and Wife have the right to marry and form families.
Furthermore, the Project-Civil Code envisages the possibility of creating other civil unions with special laws. Civil society organizations believe that all possible partnerships (marriages or civil unions) should be regulated by the Civil Code. This approach to regulating other partnerships with separate laws tends to separate the right to partnership for LGBTI individuals from those of other citizens of Kosovo. Such an approach is a fundamental violation of the human rights of LGBTI individuals in Kosovo and does not ensure the inclusiveness of the rights of Kosovo citizens. The Project-Civil Code has failed to provide legal recognition of the status of partnership for same-sex couples (civil union or marriage) and denies these individuals the right to form families. The lack of regulation of partnership for same-sex couples in the Project-Civil Code is a discriminatory approach based on sexual orientation. Minister of Justice, Mr. Selim Selimi, at a press conference said that they managed to preserve the “traditional nucleus” of marriage, favoring marriage between a man and a woman in this way and discriminating against other forms of marriage or civil unions. The Constitution of Kosovo guarantees the right to marriage and the creation of a family. It is clear that the Constitution of Kosovo does not have a specified gender that would prevent same-sex couples from marrying and forming families. Furthermore, the Constitution of Kosovo also ensures 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 direct applicability of the European Convention on Human Rights and Fundamental Freedoms and its Protocols in the domestic legislation of Kosovo and specifies that in case of conflict between legal provisions, those shall prevail. Furthermore, in accordance with Article 53 of the Constitution of Kosovo, fundamental human rights should be interpreted in harmony with the case law of the European Court of Human Rights. The European Court of Human Rights has recognized the partnership of same-sex individuals as partners in the European Convention on Human Rights in articles related to “Family Life”. Also, the European Court of Human Rights has issued a considerable number of judgments regarding the positive obligation of states to legally recognize the partnership of same-sex couples. The Ministry of Justice has failed to apply the practices of the European Court of Human Rights and has failed to draft legislation that is comprehensive and non-discriminatory based on sexual orientation. It is clear that the Project-Civil Code excludes persons from the right to partnership and the right to form families based on 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 Project-Civil Code should be described in accordance with Kosovo’s obligations to ensure equal rights for all citizens and should ensure legal recognition of same-sex couples. Civil society organizations will use all legal means and mechanisms to regulate all forms of marriage and civil unions without discrimination in the Project-Civil Code.
Civil society organizations undersigned in the statement:
Center for Social Group Development – CSGD Center for Equality and Liberty – CEL Kosovo Center for Gender Studies – QKSGJ Youth Initiative for Human Rights – YIHR KS Kosovo Initiative for Stability – IKS Initiative for Justice and Equality – INJECT Community Development Fund – CDF Advocacy and Training Center – ATRC Forum for Citizen Initiatives – FIQ KAPHA TOKA ÇOHU Lumbardhi Foundation YMCA Kosova Live Media Organization Integra BIRN Kosovo EcoZ Let’s Do It Kosovo FOL Movement Civil Rights Defenders – CRD Network of Women of Kosovo – RrGK ERA Organization Institute for Development Policy – INDEP Green Foundation KIPRED Pishtaret Anibar Seventeen Foundation Eco Tour Center for Art and Community – ARTPOLIS Kosovo Center for Rehabilitation of Torture Survivors – QKRMT Kosovo Humanitarian Law Foundation Culture Herritage without Borders – CHwB EcoKosWomen Kosovar Civil Society Foundation – KCSF GAP Institute Kosovo Institute for Justice Ec Ma Ndryshe Balkan Policy Research Group ETEA Kosovo Youth Council – KYC GAIA Democracy4Development – D4D Organization for Quality Enhancement in Education – ORCA DokuFest PIPS
