JOINT REACTION OF HUMAN RIGHTS CIVIL SOCIETY ORGANIZATIONS with regards to DRAFT CIVIL CODE APPROVED BY THE GOVERNMENT OF THE REPUBLIC OF KOSOVO

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We, the human rights civil society organizations, with this letter express our disappointment and concern over a number of provisions of the Draft Civil Code and over the process which ignored our positions, comments and proposals regarding the regulation of marriage of persons of the same sex.

We remind the Government of the Republic of Kosovo that we have supported and have been partners with the Working Group within the Ministry of Justice and with the Project Civil Code funded by the European Union. Moreover, in the meetings of the Working Group of the Ministry of Justice for the Civil Code, we have been presented with a clear commitment of the Ministry of Justice being in favor of the Civil Code to regulate marriage in accordance with the Constitution of the Republic of Kosovo.

However, the Government of the Republic of Kosovo, in its meeting of 29.12.2021, has approved the Draft Civil Code, despite the fact that we have received promises from the Ministry of Justice that we will continue to work together on how to bring the content of the Draft Civil Code in line with the Constitution and the rights guaranteed by 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 Project Civil Code 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 a man and a woman have the right to marry and to found a family. The Draft Civil Code does not regulate same-sex marriage but provides for the possibility of establishing registered civil unions, but the conditions and procedures are to be regulated by a separate law. All possible partnerships (marriage or cohabitation) should be regulated by the Civil Code. This approach of regulating the conditions and procedures of partnership between persons of the same sex by special law tends to separate the right to partnership for LGBTI persons from those of other citizens of Kosovo, while the Draft Civil Code regulates the conditions and procedures 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 inclusiveness of the rights of the citizens of Kosovo.

The Constitution of the Republic of Kosovo guarantees the right to marriage and to found a family. It is clear that the Constitution of Kosovo does not have a defined gender, which would prevent same-sex couples from getting married and starting a family. Furthermore, 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 the direct application of the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols to the domestic legislation of Kosovo, and stipulates that in case of contest of legal provisions, the latter shall prevail. Furthermore, 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. (“ECHR”)

Consequently, by regulating marriage and cohabitation as permissible relations only for persons of the opposite sex, initially the Ministry of Justice and now the Government of Kosovo have seriously violated human rights and equality before the law.