March 4, 2019
The Center for Equality and Liberty – CEL and the Center for Social Groups Development – CSGD consider that the Draft Civil Code violates the rights to partnership (marriage or cohabitation) for LGBTI persons in Kosovo and agrees with the legal interpretation of the People’s Advocate Hilmi Jashari that has also identified the same violations of human rights in the Draft Civil Code.
The Draft Civil Code defines marriage as a legally registered union between two persons of different sexes. It also defines that Man and Woman have the right to marry and form a family. Furthermore, the Draft Civil Code foresees the possibility of creating other civil unions with a separate law. All possible partnerships (marriage or cohabitation) must be regulated by the Civil Code. This approach of regulating other partnerships with special laws, tends to separate the right to partnership for LGBTI persons from those of other citizens of Kosovo. 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 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 look it can be understood that this draft leaves much to be desired. The Draft Civil Code has failed to ensure legal recognition of the partnership statute of same-sex couples (extramarital union or marriage) and denies these individuals the right to create a family. Not regulating the partnership for same-sex couples in the Draft Civil Code by the working group that was formed by the Ministry of Justice, is a discriminatory approach based on sexual orientation.
The Constitution 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. (“ECtHR”)
The European Court of Human Rights has recognized the community of persons of the same sex as partners in the Convention on Human Rights in the articles related to “Family Life”. Also, the ECHR has given a considerable number of judgments regarding the positive obligation of states to legally recognize the partnership of same-sex couples. 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 on the basis of sexual orientation. It is clear that the Draft Civil Code excludes persons from the right to partnership and the right to create a family based on sexual orientation. As such, it is discriminatory and violates the 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 must be written in accordance with Kosovo’s obligations to ensure equal rights for all citizens and must ensure recognition legal status of same-sex couples.
CEL Kosovo & CSGD
