Kosovo
Country Profile – Kosovo
1. LEGAL LANDSCAPE
a) Constitution
Even though not a member of the United Nations or the Council of Europe, in Article 19 of its Constitution, Kosovo gives precedence to international law and takes upon itself the direct applicability of the Universal Declaration of Human Rights (UDHR) and European Convention for Protection of Human Rights and Fundamental Freedoms. Article 22 refers to the direct applicability of international agreements and instruments.
While still very traditional and conservative, Kosovo is one of the only 10 countries in the world, which has banned discrimination on the grounds of sexual orientation in its Constitution (Article 24).
Also, the definition of marriage remains liberal – it makes no reference to gender – thus allowing for such case to be brought forward in the Constitutional court. However, the Family Code of Kosovo defines marriage as a union between a man and a woman.
b) Decriminalization
In 1858 the Ottoman Empire legalized same-sex sexual intercourse including the administrative areas covering Kosovo.
In 1929 under Yugoslavian rule, “lewdness against the order of nature” (anal intercourse) between human beings was banned by the Criminal Code.
In 1959 the Socialist Federal Republic of Yugoslavia restricted the offence to same-sex anal intercourse, with a maximum sentence reduced from 2 to 1 year imprisonment.
In 1994, male same-sex sexual intercourse became legal in the Autonomous Province of Kosovo and Metohija, as part of the Federal Republic of Yugoslavia.
All these laws ignored female homosexuality and same-sex sexual relations between women.
Since independence in 2008 same-sex sexual intercourse is legal in the Republic of Kosovo.
c) Age of Consent
Following the war period and separation from Yugoslavia, in 2004, under UNMIK administration, equal age of consent of 14 was established, regardless of sexual orientation or gender identity. All sexual offences became gender neutral.
2. EQUALITY AND NON-DISCRIMINATION
a) Anti-Discrimination legislation
The Law for Protection from Discrimination was passed in Kosovo since September 2004. Article 2 (a) of the law outlines as one of its principles prohibition of discrimination – among other areas – based on sexual orientation. The law – until its revision – did not provide protection from discrimination based on gender identity,
The bill on anti-discrimination was put forward in Parliament in 2013 in order to update the existing law and to include gender identity.
The Gender Equality Bill of the same year also proposed inclusion of protection from discrimination on grounds of “gender reassignment”.
On 26 May 2015 the 2004 anti-discrimination law was replaced by the new law on Protection from Discrimination. The law entered into force in July. The Act establishes a general framework for prevention and combating discrimination based on a number of grounds, including gender identity and sexual orientation. It prohibits any discrimination in direct or indirect form.
Also, on 28 May the new Law on Gender Equality was adopted, replacing the 2004 version. In includes an updated definition of gender identity. (see more in trans and intersex rights section).
b) Equality Bodies
The institution of the Ombudsman of Kosovo is the body charged with implementation of the Law for Protection from Discrimination and is required to collect, receive and investigate complaints of discrimination based on any grounds, including sexual orientation and gender identity.
c) National Action Plans
Equality measures on LGBTI rights have been difficult to implement in Kosovo despite the advanced legislation. For many years since the passing of anti-discrimination law governments have failed to pass new laws or amend existing ones for years and policies have not changed fundamentally. However, during 2015 and 2016 several significant changes have happened in terms of legal reform – see above – and policy.
With regards to policy, in 2014 the Kosovo Governments, through the Prime Minister’s Office for Good Governance set up the Coordinating and Advisory Group for the rights of LGBT community. The aim of this group has been to form partnerships and cooperation between local/national institutions, international community and the LGBTI organisations operating in the country. In 2015 the group prepared the first 1-year action plan which aimed to hold activities that would further raise awareness on LGBTI rights. The same group has been working until recently to launch a new Action Plan 2016-2018 which aims to monitor the implementation of the Law for Protection from Discrimination, strengthen institutional capacities on the topic etc. Government initiative however has been considered weak by the movement and observers and no specific actions have been undertaken to significantly change public perceptions towards LGBTI people.
4. SURVEYS AND SOCIAL PERCEPTIONS
Research in the last years in Kosovo, such as the one by YIHR in 2013, shows that LGBT persons face high levels of verbal abuse, live in fear and hiding and their issues are neglected by the media. Research also suggests that there is low level of awareness about the specific issues concerning the LGBT community.
LGBTI community remains largely invisible in Kosovo public life, even though in the last few years the community, mostly based in Pristina, is quite visible and organised with parties and other social events. There are however no public gay bars and venues and the widespread homophobia and prejudices forces LGBTI people to remain hidden, enter into marriages with people of opposite sex, not go through any changes in terms of gender expression etc. Many LGBTI people have been thrown out of their homes once they have come out or have been outed by others. As family remains a strong social and economic factor in Kosovo many people do not resist the pressure to marry.
In terms of being out, most LGBTI people, such as those interviewed by YIHR in 2013 come out only to select network of friends or relatives. They do so with caution and only when highly confident that the other person/s will accept them. This provides a contradictory picture of the social reality, which means that being out just to anyone in Kosovo is still a large taboo. The situation is less easy in the family environment and the survey found out that around 52 percent of LGBTI people are afraid to come out to their relatives.
The 2015 poll by NDI found out that 41 percent of the general public would try to help their son or daughter to find a cure if they found out that their child was not heterosexual.
The 2013 survey by YIHR also found out that 48.9 percent of respondents were not aware that laws in Kosovo offered protection to sexual minorities. About 40 percent of respondents were aware of the law for protection from discrimination.
5. FAMILY RIGHTS
Kosovo’s Constitution prohibits discrimination based on sexual orientation stating that “… everyone enjoys the right to marry and the right to have a family as provided by law”. In 2014 the President of the Constitutional Court said that Kosovo de jure allows same-sex marriage but that due to political reasons the issue is unclear. Article 144(3) of the Constitution requires the Constitutional court to approve any amendments in order to make sure that they do not infringe upon the civil rights guaranteed by it previously.
a) Cohabitation rights
No allowed.
b) Civil Partnership
Not allowed.
c) Same-sex marriage
Same-sex couples cannot get legally married in Kosovo.
The Constitution does not make any mention of gender, however the Family Code defines marriage as a union between a man and a woman.
d) Adoption (joint adoption and second parent adoption) and family planning
No.
e) Official surrogacy for gay couples
No.
f) Legal restrictions (Constitution etc)
Family Code defines marriage as a union between a man and a woman.
6. COURT CASES
Kosovo’s Constitution gives precedence to international law and takes upon itself the applicability of the UDHR and ECHR. As a result, the jurisprudence of the European Court of Human Rights is also applicable.
Due to this, landmark rulings by the ECtHR in the last years, provide fertile ground for Kosovo’s legislation to be reviewed and for strategic litigation purposes.
The 2013 survey by YIHR found out that Kosovo judges and prosecutors had dealt with very low number of cases involving LGBT issues. More than 50 percent of the interviewed judges considered LGBTI issues a concept pressed by the international community.
7. HATE CRIME AND HATE SPEECH
In a research conducted by YIHR in 2013 with LGBTI community, over 40 percent of the total sample of respondents said they were verbally abused publicly and that about 10 percent had been beaten or threatened. 50 percent of respondents said they were afraid of their safety due to widespread homophobia and previous cases of abuse. The same study found out that understanding of the situation and issues faced by the LGBTI community is higher among police officers compared to other law enforcement agencies; however, it is not at a desirable level. Moreover, the research found out that a very small number of hate crimes are reported to authorities and that they are not followed up. This was also reflected in the perceptions of LGBTI people themselves who think that the state offers them no protection.
In a more recent survey, conducted in 2015 by NDI, 81 percent of the LGBTI people surveyed revealed they have been verbally harassed or abused because of their sexual orientation or identity, the highest percentage in the whole Balkan region. 29 percent revealed they had suffered physical violence because of their sexual orientation or gender identity.
According to the people surveyed in 2013, the main reasons why they were afraid of coming out and of being victims of hate crime were: existence of radical/conservative groups (10%), lack of security and protection from state institutions (10%), widespread homophobia and transphobia (46%) and cases of violence they have experienced or been testimony of (34%).
In the same survey 40 percent of the LGBTI people report to have been verbally abused on the street based on their appearance. 10 percent of respondents said they had been exposed to physical violence such as rape, beatings, stabbing and spitting. All these incidents have happened in streets and other public spaces. Several cases were of LGBTI people being deceived by straight people in social media and other chat rooms and upon meeting have been assaulted, raped and/or robbed.
The report shows also that LGBTI people are under high risk of being marginalised due to low trust towards institutions. As their main resource of information are non-governmental organisations, in cases when they do not frequent them, the risk of being ill-informed is high.
A notable example of hate crime, threatening and harassment was the attack on 9 September 2013 during the launch of the “SEX” issue by Kosovo 2.0 magazine. A conservative group of young men interpreted it as an event aimed to promote sex and LGBTI people. The venue was raided, many people were verbally harassed and threatened while the police failed to adequately protect the participants from the angry mob. Two days later, the offices of Libertas, a NGO working at the time with LGBTI rights, were also broken in and attacked. The incident sparked huge debates in society through traditional and social media making the LGBTI topic discussed widely for the first time in the new country. The incident also revealed the huge risks that LGBTI people face in Kosovo if they dare to be visible or come out.
In 2014 the Pristina Basic Court convicted three individuals for forcefully preventing the event from taking place. They each received a suspended 14-month sentence, a punishment which was considered as insufficient by LGBTI organisations.
Also, on the occasion of public events such as IDAHOT marches and concerts of 2014, 2015 and 2016 social media has been fuelled with hate speech and comments including death threats, insults and other slurs against participants including high level politicians.
Also LGBTI human right defenders are also under frequent threats and harassment. In 2015 one LGBTI activist received a death threat after posting a statement on the situation of LGBTI people on social media. The case was reporting to the police.
LGBTI organisations are also taking more proactive steps in offering legal counselling and help to victims of hate crime, following the cases in all stages of justice and keeping all stakeholders informed on outcomes of investigation and decision making. For instance, CSGD Kosovo has reported two severe cases of hate crime incidents. The first one, happened on 12 June 2016, when two gay men were victims of an attack in the town of Ferizaj. The attackers, four adult men who were unknown to the victims, have been arrested by the police. The incident began with verbal harassment and ended with physical attack towards the two gay men in their workplace. The case was reported to the police station in Ferizaj, Kosovo.
On the second incident, in 2 July 2016, a gay couple was attacked and kicked out by the owner of the apartment they were renting as he discovered their sexual orientation. The victims were verbally and physically attacked with a knife and a shovel, locked out from the house and their personal belongings were kept from them. In order to escape the attack, they were forced to jump from the second floor balcony. Eventually they ended up homeless, with injuries to their faces and bodies. The case was reported to the police which helped the victims to retrieve their personal belongings. It is of concern that the perpetrator was not arrested, even though he threatened the victims in the presence of the police and eyewitnesses. CSGD has asked the investigator of the case for an explanation, but he was not able to give further information at this point. The case was reported to the Ombudsperson’s office on Monday, July 4th and CSGD will closely cooperate with them to gain more information from the police.
8. TRANS AND INTERSEX RIGHTS
a) Current legal and social situation
Contrary to LBT, transgender and intersex people are not acknowledged by Kosovo’s Constitution and although there are no laws criminalising trans identities, this cannot be taken to mean that trans people’s rights are being effectively protected in Kosovo.
On 28 May 2016, Kosovo adopted a new law on Gender Equality which replaced the 2004 version. It includes an updated definition of gender identity, protecting “the gender related identity, appearance or other gender related characteristics of a person (whether by way of medical intervention or not), with our without regard to the person’s designated sex at birth”. It was published in the Official Gazette on 26 June.
b) Access to health services
In the beginning of 2016 it was made public that the Kosovo Clinical Centre had undertaken several surgical interventions on intersex minors. The patients were of a very young age and the procedure was not regulated with any legal provision or based on international human rights standards. In line with those the government should forbid any medically not necessary interventions on intersex children.
c) Access to gender reassignment procedures
Not regulated by law. Not provided.
9. EMPLOYMENT
a) Legislation
The law for protection from discrimination covers the area of employment.
b) Surveys and data
The 2013 survey by YIHR found out that only 28 percent of the people interviewed were employed most of whom in private or civil sectors. The percentage is significantly lower than the average employment rate for young people in Kosovo. The study also found out that often LGBT people are denied promotions, are subjected to bullying and get fired because of their sexual orientation.
10. EDUCATION
a) Legislation
The law for protection from discrimination covers the area of education.
b) Homophobic and Transphobic bullying
The 2013 survey by YIHR found out that the most frequent form of abuse suffered by LGBTI people is verbal. LGBTI people do not come out in their school environment, and people who either belong to the community or are perceived so by the classmate and teachers suffer harassment, bullying and other forms of discrimination and violence.
11. HEALTH
a) Legislation
Law for protection from discrimination covers health.
b) Research
The 2013 study by YIHR found out that medical professionals believe that all patients should be given equal treatment regardless of their sexual orientation. However, prejudices seemed to be high towards LGBT people. For example, 90 percent of them claimed to be able to determine whether a person is LGBT based on their behaviour or looks. Most of the surveyed medical professionals were also reluctant to fill in the survey, which goes to show that most medics surveyed responded to the questionnaire in a way to be politically correct.
12. HOUSING
a) Statistics and research (if available)
On 2 July 2016, a gay couple was attacked and kicked out by the owner of the apartment they were renting as he discovered their sexual orientation. The victims were verbally and physically attacked with a knife and a shovel, locked out from the house and their personal belongings were kept from them. In order to escape the attack, they were forced to jump from the second floor balcony. Eventually they ended up homeless, with injuries to their faces and bodies. The case was reported to the police which helped the victims to retrieve their personal belongings. It is of concern that the perpetrator was not arrested, even though he threatened the victims in the presence of the police and eyewitnesses. CSGD has asked the investigator of the case for an explanation, but he was not able to give further information at this point. The case was reported to the Ombudsperson’s office on Monday, July 4th and CSGD will closely cooperate with them to gain more information from the police.
13. PUBLIC EVENTS (INCLUDING PRIDES)
Even though Kosovo has not hosted a Pride in the traditional sense, since 2014, activities around IDAHOT have taken place. Among the events, equality marches and concerts have been held in Pristina’s main squares and promenades attracting huge media attention and public discourse. The events have been attended by important representatives from government and political arena. On 17 May 2016 President Haxhim Thaci joined the equality march together with LGBTI activists and supporters.
Previously, LGBTI related public events have been accompanied by incidents and hate speech on social media. Such was the case of the launch of Kosovo 2.0 “Sex” issue on September 2013 which caused for around 200 men from conservative religious groups to mob the venue, threaten and harass participants as well as a few days later a few men attacking the offices of NGO Libertas. Meanwhile, on Valentine’s Day in 2014 visual performance group Haveit staged a kiss on a central avenue in Pristina. After posting it on Facebook, both positive and negative comments began to accumulate, including death threats, which were later reported to authorities.
Along with hate speech, organising of public events has been on a few occasions challenging for other reasons. For example, on May 2015 an LGBT activist filed a complaint against a Pristina municipality official, claiming that he had been discriminated against on grounds of sexual orientation when he requested permission to organise a march and concert for IDAHOT.
In October 2016 ERA – LGBTI Equal Rights Association in partnership with the Kosovo Government and in closer cooperation with its members in the country CEL Kosovo and CSGD Kosovo hosted the first regional conference “Why laws are not enough! Towards inclusion and equality of LGBTI people in the Western Balkans and Turkey”. The event was attended by more than 120 participants from governments, civil society sector and others from the whole region and international community.
The NDI poll conducted in 2015 revealed that 71 percent of the LGBTI people surveyed felt that Pride activities have improved the position of LGBTI community in society.
14. POLITICAL PARTICIPATION AND REPRESENTATION
Political participation and representation of LGBTI people in Kosovo is still not a reality.
On 17 March 2015, CSGD organised the conference “LGBTI in politics”, the first public event of its kind to discuss the inclusion of LGBTI issues in the political agenda. It was attended by representatives of the Self-Determination Party (VV; centre-left) and the Democratic Party of Kosovo (PDK; centre-right).
In the poll organized by NDI in 2015, 60 percent of the general public surveyed said they would not vote for a party which championed the rights of LGBTI people.
15. MEDIA
The 2013 survey with the LGBT community by YIHR found out that 65 percent of respondents feel that their issues are disregarded by the media. By contrast only 33 percent of human rights defenders perceive that the treatment of LGBT issues by the media is weak.
In a media monitoring process during 2014 NGO QESH found that out of 136 media reports on LGBTI – both print and online – 57 percent of articles were positive, 33 percent neutral and 10 percent negative/hateful. However, the monitoring noted that comments in social media and networks were consistently negative or hateful.
16. LGBTI RIGHTS MOVEMENT
For many years the LGBTI community of Kosovo functioned within a discreet and secretive network of individuals mostly based in the capital Pristina. However, during the last 10 years the movement has been growing stronger and more organised.
a) Organizations present and active in the country
There are currently three national active LGBTI organisations in Kosovo: Centre for Equality and Liberty (CEL), Centre for Social Group Development (CSGD) and Centre for Social Emancipation (QESH). They are all based in Pristina.
The work of LGBTI human rights defenders in Kosovo has always been challenging. Those who have been visible with their activism in the last few years have often received death threats and have been targets of hate speech and online harassment. In 2015, Rajmonda Sylbije, executive director of CEL Kosovo, became the first activist from the country to be added to the Civil Rights Defender’s Natalia Project.
17. ROLE OF THE EUROPEAN UNION
a) Enlargement
Kosovo has been considered a potential candidate to join the European Union since 2008. In its reports the European Commission has noted that the country has yet to adopt the anti-discrimination law and harmonise it with other laws, including that regulating the work of the Ombudsperson and law on Gender Equality. The Commission has also noted that cases of hate speech and threats against LGBTI people were seldom investigated, noting that authorities had to improve performance in this field. Later on, the Commission has pointed out that political leaders need to do more to promote tolerance and that current awareness raising and capacity building activities for public officials need to continue. The Commission has also noted the poor performance of the national Coordination Group on the issue.
The accession process and especially the visa liberalisation process, which required anti-discrimination legislation, have been strong drivers for progress. Not only sexual orientation but also gender identity was included in 2016 bill on gender equality. The progress report is an important advocacy tool for LGBTI rights towards authorities, it is taken very seriously by the government and NGOs use it to initiate debate with them.
A problem however is that while on paper, legislation and policies for LGB people are well organised, implementation is lacking, especially at local level. Also, trans and intersex rights are as yet missing from legislation.
18. KOSOVO INTERNATIONALLY
a) International agreements, declarations and resolutions
Even though not a member of the United Nations or the Council of Europe, in Article 19 of its Constitution, Kosovo gives precedence to international law and takes upon itself the direct applicability of the Universal Declaration of Human Rights (UDHR) and European Convention for Protection of Human Rights and Fundamental Freedoms. Article 22 refers to the direct applicability of international agreements and instruments.
b) International Rankings
ILGA-Europe 2016 Annual Rainbow Index shows Kosovo has achieved 32 percent out of 100 in terms of legal and policy reform. Meanwhile the index does not reflect social and cultural situation of LGBTI people. The index measures legal and policy standards in the areas of equality and non-discrimination, family rights, hate crime and hate speech, legal gender recognition and bodily integrity, freedom of assembly, association and expression and asylum.
Sources
https://en.wikipedia.org/wiki/LGBT_rights_in_Kosovo
http://www.ilga-europe.org/sites/default/files/Attachments/01_full_annual_review_updated.pdf
http://www.ilga-europe.org/sites/default/files/Attachments/annual_review_2016-for_web.pdf
http://www.ilga-europe.org/sites/default/files/Attachments/annual_review_2016-for_web.pdf
“ERA LGBTI Enlargement Review 2016”, ILGA Europe & ERA, 2016