Concerns raised that new legislation violates Constitution.
On July 5, the Ministry of Justice in Kosovo proudly handed the government the final draft of the Civil Code, one of the most important legal documents in the justice system. Just two weeks after putting it in the government’s in-tray, the prime minister resigned and the code, which codifies different legal acts in the area of civil law, was put on hold. Its status is still pending.
The process of bringing it into force won’t be an easy one for the new government, which is expected to be formed early in the new year.
Although the Ministry of Justice and the EU Office in Kosovo — the sponsors and biggest supporter of the Civil Code — have termed the new Civil Code as progressive and a much needed update to the justice system, policymakers look set to face a backlash from human rights activists who insist that it is far from being an inclusive piece of legislation.
That’s because the newly drafted Civil Code does not recognize marriage between two people of the same sex.
For activists, the provisions just reinforce the legal discrimination toward gay people in Kosovo.
Missed opportunity to close legal loophole
The EU Office in Kosovo initiated the process of developing the Civil Code back in 2014, together with the Ministry of Justice. A second phase of codification began two years later, again with the EU providing its assistance to a working group, chaired by the Ministry of Justice. The final draft, published on the Ministry of Justice website, includes legal provisions of civil law systemized in five “books”: the General Part, Obligations, Ownership and Other Real Rights, Family, and Inheritance.
“Kosovo does not [currently] have a unified Civil Code,” the EU Office explained to K2.0. “Its legal framework in the area of civil law is a complex mix of legal acts adopted in different historic periods based on different legal traditions.”
Besides updating different pieces of legislation such as the Family Law and the Law on Property, the codification also aims to be more practical both for citizens and lawyers, who will no longer need to look in separate laws to understand the regulation of property and other related rights and obligations relating to family and inheritance law provisions.
Both the EU Office and Ministry of Justice have repeatedly stated that producing a Civil Code is a necessary legal mechanism during the process of statebuilding, that it protects citizens in the field of civil law, and that as such it will be an improvement on various pieces of legislation in line with EU standards.
“If the current draft enters into force, the Civil Code would constitute a law that is discriminatory and in violation of basic human rights of same sex couples.”
Rina Kika, human rights lawyer
However, human rights lawyers Rina Kika points out that the definition of marriage included in the Civil Code’s final draft is identical to that previously included in Family Law — which defines marriage as being between a man and a woman — and if the Code were to enter into force it would deny gay couples many rights.
“The Ministry of Justice has failed to consider its positive obligations to ensure human rights for same-sex couples living in Kosovo in accordance with European Court of Human Rights jurisprudence, because the draft Civil Code does not foresee any kind of legal recognition of such couples,” Kika says. “Hence, if the current draft enters into force, the Civil Code would constitute a law that is discriminatory and in violation of basic human rights of same sex couples.”
She particularly highlights two articles in Kosovo’s Constitution, which she says the new Civil Code would violate; Article 24, which guarantees equality before the law, and Article 37, which guarantees the right to marriage and family.”
LGBTI activists had been hoping that the new Civil Code would finally close the legal gap in Kosovo whereby the Constitution guarantees every citizen the right to marry, whereas the Family Law restricts this right.
This has left the onus on gay couples to challenge the system. In principle, they would need to apply for a marriage permit at their local municipality and then, if the Family Law were to be applied rather than the Constitution, take their case to the Constitutional Court; however, until now, no such cases have been undertaken.
Kika says that the Civil Code should be revised in order to be consistent with Kosovo’s obligation to ensure human rights for all citizens; the European Convention on Human Rights is enshrined in Kosovo’s Constitution.
Kosovo’s Ombudsperson also officially stated earlier this year that the draft Civil Code violates the constitutional right to same-sex marriage.
But the Ministry of Justice doesn’t seem to accept that provisions within Kosovo’s highest level of legislation and the new Civil Code are contradictory.
“The working group responsible for drafting the Civil Code gave their opinions that the drafted provisions of the Civil Code are in accordance with the Constitution of the Republic of Kosovo and relevant EU provisions,” said the communication office of the Ministry of Justice.
Standard good practice when drafting new legislation and policy sees civil society playing an important role in the process, either through being included within working groups or by providing recommendations during public consultation sessions.
Although the Civil Code is key in putting a stop to discrimination against gay people by supporting their right to marriage, family and other rights granted to other citizens, activists from NGOs advocating for LGBTI rights feel that they have been excluded from the process.
“We didn’t have any access within the working group because it was closed,” says Arber Nuhiu, executive director of the Center for Social Group Development (CSGD). “In the end, they just came with a final draft that was about to be opened for public consultation. Before that, we just knew there was a working group working on something and it was impossible to be accessed.”
It is not clear who the civil society representative (or representatives) was that was helping to draft the provisions concerning gay rights.
The EU Office in Kosovo told K2.0 that the EU’s recommendation to have representatives from civil society in the working group was taken on board. But it is not clear who the civil society representative (or representatives) was that was helping to draft the provisions concerning gay rights.
The names of the members of the working group — and its sub-groups — are not visible on the project’s website, and when asked by K2.0, the Ministry of Justice’s communication office did not mention names. Instead, it answered that the working group “consisted of national and international experts in fields that include issues related with Civil Code, including university professors, judges from the field of civil law, lawyers, notaries, etc.”
The communication office added that after its finalization, the Civil Code was launched for public consultations where all relevant actors had the right to make comments and recommendations; these were taken by the Ministry, who reviewed them and decided which to take into consideration.
EU Office in Kosovo officials similarly told K2.0 that they organized various gatherings in which civil society members and activists, including LGBTI activists, raised their opinions and concerns.
Nuhiu from CSGD says that NGOs dealing with LGBTI rights addressed their remarks in the public discussions, while also trying to present them in private meetings with EU officials.
Various organizations working in fields related to human rights and similar came together with a document with recommendations that was sent to the Ministry of Justice after the initial public consultation earlier this year. The document used legal arguments to point out how the lack of recognition of same-sex marriage is unconstitional and paves the way for discrimination.
The first recommendation was to replace references to “a man and a woman” and “different sexes” with simply “two persons” in all articles that define relations.
Nuhiu explains that they added a second option if the Ministry didn’t want to accept the changes on marriage. As an alternative form, civil union was proposed as a legal recognition of same-sex couples.
“We encountered resistance from EU experts in pushing for our recommendations, particularly those related to the chapter on marriage.”
Adelina Berisha, Kosovo Women's Network
He says that it was actually EU representatives that surprised him with their stance of not persisting with the same-sex issue in order not to jeopardize the whole process.
Adelina Berisha from Kosovo Women’s Network (KWN), another organization that proposed recommendation on same-sex marriage, also highights the surprise of KWN’s representatives at the resistence from EU experts.
“It should be noted that the approach of German and Dutch experts engaged by the EU has been problematic in working on these recommendations,” she says. “We encountered resistance from them in pushing for our recommendations, particularly those related to the chapter on marriage.”
She says that these experts said that Kosovar citizens aren’t ready to accept marriage between same-sex couples.
“We emphasized the importance of the legal framework also in changing the prejudicial and discriminatory beliefs and attitudes of society, and the role that laws play in advancing and changing these beliefs,” she says.
Nuhiu says that they never got a response from the Ministry on how their requests were addressed.
But the EU Office in Kosovo says that it was agreed to have a number of issues regulated separately by special laws as they deserve special attention.
“As was mentioned before, certain special laws need to be drafted to allow the implementation of these civil rights,” the EU Office in Kosovo told K2.0. “The Civil Code allows these special laws to further regulate all the specific needs, which will occur now or in due time, without changing the Civil Code itself all the time.”
According to Nuhiu, the proposal of a special law represents discrimintion in itself.
“What, are gay people different from others to have their union regulated with a special law?” he says. “And the second thing is that any other law deriving from the Civil Code is below the Civil Code in the legislative hierarchy.”
Nuhiu says he hopes elected deputies and parliamentary commissions do not approve the Civil Code in its current form. However, if it does pass the legislative process, he is sure that the fight will continue on up to the Constitutional Court. K
Feature image: Arrita Katona / K2.0.
This piece is published with the financial support of the European Union. The content of this publication is solely under the responsibility of ECMI Kosovo and does in no way represent the views of the European Union.