LGBTI rights in Kosovo: fairy-tale or feasible?
Examination of the use of legislation by LGBTI activists in Kosovo
Name: Lidewij Nauta Student ID: 10678891 Supervisor: dr. M.B. Parlevliet University: University of Amsterdam Department: Graduate School of Social Sciences Program: MSc Conflict Resolution & Governance Assignment: Research Project Date: 28 June 2019 Word count: 29844Table of Contents
Acknowledgements ... 3 List of Abbreviations ... 4 1. Introduction ... 5 2. Theoretical Framework ... 8 2.1 LGBTI Rights as Human Rights ... 8 2.2 Dimensions of Human Rights ... 9 2.3 Use of Law ... 11 2.4 Influence on law ... 12 2.5 Research Themes ... 14 3. Methodology ... 15 3.1 Research Design ... 15 3.2 Operationalisation ... 17 3.3 Ethical Considerations ... 17 3.4 Methodological Limitations ... 19 4. Legal and Sociocultural Landscape ... 21 4.1 Legal Landscape ... 21 4.2 Institutional Landscape ... 26 4.3 Sociocultural Landscape ... 32 4.4 Selection of Key Cases ... 34 5. Use of LGBTI rights ... 37 5.1 LGBTI Rights as Law ... 37 5.2 LGBTI Rights as Values ... 48 5.3 LGBTI Rights as Governance ... 52 6. Limiting Factors for Use of Rights ... 64 6.1 Limitations of ‘Law in Practice’ ... 64 6.2 Legislation Limitations ... 65 6.3 Process Limitations ... 67 6.4 Social Limitations ... 71 6.5 Awareness Limitations ... 73 6.6 Normative Limitations ... 76 6.7 Political Limitations ... 81 7. Conclusion ... 84 7.1 Summary ... 84 7.2 Overall Conclusions ... 85 7.3 Contributions to Literature ... 86 7.4 Reflections and Limitations ... 86 8. Bibliography ... 88 8: Appendices ... 90 8.1 List of Interlocutors ... 90Acknowledgements
First of all, I would like to express my gratitude to my supervisor, dr. Michelle Parlevliet, for her valuable support and structured guidance during this thesis process. She continuously reviewed my work and provided me with constructive feedback, positivity and valuable insights. Secondly, I would like to thank dr. Martijn Dekker for taking the time and effort to review this thesis as a second reader. Furthermore, I am very grateful for all the interlocutors. I would not have been able to write this thesis without their contributions. I am very thankful for the time and effort they took to share their personal experiences, insights, and dreams with me. Lastly, I’d like to thank my Kosovar hosts, my family, my friends, and my boyfriend for the countless ways in which they supported me throughout this process.List of Abbreviations
ACG Advisory and Coordination Group for the rights of LGBTI CEL Centre for Equality and Liberty of the LGBTI community in Kosovo CCRK Criminal Code of the Republic of Kosovo CSGD Center for Social Group Development ERAC Equal Rights for All Coalition EU European Union HR Human rights LGBTI Lesbian, Gay, Bisexual, Transsexual, Intersex KWN Kosovo Women’s Network NAP National Action Plan NGO Non-governmental Organisation NDI National Democratic Institute OGG Office of Good Governance, Human Rights, Equal Opportunities and Non-discrimination OIK Ombudsperson Institution of Kosovo OSCE Organisation for Security and Co-operation in Europe UDHR Universal Declaration of Human Rights UN United Nations YIHR Youth Initiative for Human Rights1. Introduction
“I was attacked, I was threatened. So I had to leave Kosovo for three months”1, told Igo about the attack on an event of Kosovo 2.0., an independent news platform in Kosovo. On Friday the 14th of December 2012, a group of men disrupted a promotion event by Kosovo 2.0’s. This event was meant to promote their latest printed issue “Sex”, which contained several articles about lesbian, gay, bisexual, transgender or other intersex people (LGBTI). The attackers destroyed equipment and abused a staff member. The following Sunday, a group of men attacked the office of the LGBTI friendly non-governmental organisation (NGO) Libertas. They threw a can of gas into the room while a private party was going on and attacked a partygoer in the street (Huffington Post, 2012; Demolli, 2012). These acts of aggression are not stand-alone events. A study by an NGO called the National Democratic Institute (NDI), found that 81% of the LGBTI in Kosovo LGBTI reported psychological and verbal harassment and 29% reported physical violence (2015). Similarly, a study by World bank showed that 73% of the LGBTI people’s in Kosovo reported to avoid certain locations for safety reasons and that 94% reported to avoid holdings hands in public for fear of being assaulted, threatened, or harassed (World bank, 2018). These events and studies seem to indicate that the day-to-day situation of LGBTI members in Kosovo is an intolerant, excluding and threatening environment. In contrast to the high levels of reported fear of safety by LGBTI, the legal situation for LGBTI in Kosovo has improved in recent years. After the adoption of the Kosovo Constitution - which entered into force and effect on June 15 2008 - Kosovo became one of 10 countries in the world, which included a ban of discrimination based on sexual orientation in its Constitution2 (LGBTI-ERA, 2016). Besides, several other laws are currently in place to ban discrimination based on sexual orientation or gender identity and to extent the rights and protection of the LGBTI community. As such, the Center for Social Group Development (CSGD), a LGBTI NGO in Kosovo, reports: “Kosovo’s legal framework provides advanced guarantees for human rights aligned with international standards” (CSGD, 2017). Consequently, there seems to be a discrepancy between the progressive legal situation of the LGBTI community on the one hand, and a more intolerant and threatening reality on the other hand.1 Igo, interview, Pristina, date not disclosed. 2 Constitution of the Republic of Kosovo, 2008, Ch. II, art. 24(2).
The discrepancy between the progressive legal framework for LGBTI on paper and the intolerant and threatening situation in practice, yields a research puzzle, to be studied in more depth. It raises questions on whether the available legislation is currently being used in an efficient way or whether the use of legislation is hindered by certain matters. As such, the research question asks: ‘To what extent are LGBTI activists using legislation and which factors are
playing a role in the use of this legislation?’
Studying the use of legislation and possible factors hindering the use, would contribute to existing literature, because scholars state that “despite rich literature on rights in social movements, we know relatively little about why and when a person adopts rights talks” (Merry, 2003). Moreover, “Human rights are a multifaceted phenomenon, open to multiple meanings and uses” (Merry et al., 2010). Thus, studying ‘why’, ‘when’ and ‘how’ rights are used by a social movement in Kosovo, could add to this existing literature, by providing insights as to what extent the LGBT+ movement in Kosovo uses LGBT+ rights. The focus on Kosovo, provides a unique insight into the use of rights in a post-armed conflict and post-intervention setting, which is still heavily monitored by international institutions. Previous research on LGBTI in Kosovo has primarily reviewed the situation of the LGBTI community, such as their safety, legal position, or acceptance (NDI, 2015; YIHR, 2013; ILGA-Europe, 2018). Therefore, this research, with a focus on LGBTI activists and their use of legislation, yields new insights into the situation in Kosovo. These results might be useful to evaluate theories on the use of law by civil social movements or to provide more insight on the situation of LGBTI activists in Kosovo. The societal relevance of the research sheds light on the practical use of legislation and factors limiting it by actors on the ground, which yield important insights for actors involved in LGBTI in Kosovo. These results contribute to a more thorough understanding of the LGBTI situation in Kosovo, the work of activists and the struggles that the activists encounter with regard to the use of legislation. These insights could point towards important factors to consider when making policy to improve the situation of the LGBTI community. In doing so, this research gives LGBTI activists a stage to talk about their situation, their work and the difficulties they encounter. As the LGBTI community faces increased risks when speaking out publicly about their situation, this research gives them a platform to share ‘good practices’, raise questions, and to voice their concerns. This produces valuable insights into practical experiences with LGBTI legislation, which might help to fortify the bottom-up voices towards the policies and legislation. This thesis argued, based on the results that were generated from the fieldwork, that there are different dimensions to the use of LGBTI rights by LGBTI activists, including uses ‘as law’, ‘as values’, and ‘as governance’. This use of rights is complicated by various legal limitations and some limitations on social norms and values or political processes. In the context of the use
of LGBTI rights there are several national and international actors that also affect the use of rights by LGBTI activists.
In order to answer the research question, the structure of the thesis is as follows: After this introduction, chapter 2 contains the theoretical framework which describes the theoretical lenses that are used to analyse the perspectives of the interlocutors on the use of LGBTI legislation. Thereafter, chapter 3 describes the methodology that is employed in this research. Chapter 4 constructs a legal, institutional, and sociocultural landscape, based on the results of the fieldwork. Chapter 5 discussed the results concerning the use of various dimensions of LGBTI rights. Chapter 6 presents results on limitations for the use of LGBT+ rights. Lastly, chapter 7 concludes by summarizing the arguments, discussing applicability of the theoretical framework, pointing out the relevance of the research, and indicating limitations and further research.
2. Theoretical Framework
This chapter situates the research question on the use of LGBTI rights legislation by activists in a theoretical framework. The first section (§2.1) explores the notion of LGBTI rights as Human rights. The following section (62.2) describes three dimensions of human rights and how governance-driven-democracy plays into this. Thereafter (§2.3) different notions and uses of law will be discussed. Then, (§2.4) the theories about the influence of social movements and international actors on LGBTI legislation will be explored, and lastly (§2.5) will describe the research themes. In the subsequent chapters, these constructed lenses will be used to analyse the results of the field research.
2.1 LGBTI Rights as Human Rights
This section will consider the notion of LGBTI rights as human rights. The Merriam Webster Dictionary defines human rights as “rights regarded as belonging fundamentally to all persons” (2019).
As such, perceptions on whether certain rights are considered to be human rights can differ. LGBTI rights have not always been part of the human rights framework, however, nowadays LGBT rights are often framed as human rights. Carpenter stated that “for the first 50 years of human rights norm development, groups such as gays and lesbians, disabled persons, and those suffering caste-based discrimination attracted very little attention from the human rights network” (2007, p.100). Nonetheless, “In recent years, many groups representing people who are lesbian, gay and transgendered have framed their grievances as international human rights claims. In so doing, many of these advocates have fought to add their cause to the human rights movement and to place a new right to sexuality on the international agenda” (Mertus, 2008, p.52). Others state that when oppressed groups frame their grievances within human rights framework, having the label of a human rights issue will more likely bring attention, connections, resources, and a potential resolution to the aggrieved group (Bob, 2008). Nonetheless, Mertus argued that using the human rights frame can have disadvantages, because although “framing a cause in human rights terms can be an effective way of claiming the moral high ground and of asserting affinity with others”, it can be experienced as “unduly restrictive and even detrimental when identity is the central organizing factor” (2007, p.1037). Although not all movements have decided to employ the human rights model, the “model does appeal to the vast center of LGBTI movements, which channel their efforts through existing political institutions and patterns of discourse…” (Mertus, 2007, p.1063).
In sum, LGBTI rights are not perceived as human rights by all actors. Using the human rights framework can facilitate or limit the movement. Yet most actors consider LGBTI rights to be human rights.
2.2 Dimensions of Human Rights
Building on the previous section, this section will discuss the different dimensions of what human rights are and how they can be used. Glassius argued that, within human rights, there is tension between two norm systems. Human rights are “instinctive but also contested moral norms” at the same time, human rights are “legal norms, laid down, in many variations, in instruments of international and national law, with or without implementation systems” (2012, p.2). These “two normative systems have developed in tandem, and are partly interdependent, but they are also in tension” (ibid.). Merry similarly distinguishes ‘human rights as law’ and ‘human rights as values’ and additionally identifies a third dimension of ‘human rights as governance’ (2010).To start, according to Merry et al., human rights law consists of “multilateral conventions or treaties binding on those countries that ratify them” and is monitored by committees that receive periodic reports” (2010, p.106). Information gathering and reporting is conducted by “specially appointed representatives or rapporteurs”, however, “enforcement depends on the pressures of nation-states as well as the committees of experts who receive periodic reports […] and monitor compliance” (ibid.). Human rights violations can be brought to several UN commissions and “regional human rights bodies such as the Inter-American Commission for Human Rights or the European Court of Human Rights hear complaint cases and render decisions” (ibid.). To redress violations, “individuals depend on NGO’s or social movements to uncover and frame the violations”, and to realize that, “the core strategies available for enforcement are exposure and shaming” (ibid.). Secondly, Merry et al. identify ‘human rights as values’, as they are also “a philosophical and moral system of values that claims universality and asserts the worth of all humans by virtue of their humanity (2010, p.106). The core ideas are “human dignity, equality, non-discrimination, protection of bodily integrity from state violence as well as other forms of violence, and freedom” (ibid.). This system of values has developed throughout a “long history of human rights advocacy” (ibid.). Merry et al. argue that these core ideas “resonate with the principal values of modernity in its various manifestations and with the fundamental tenets of many religious systems” (ibid.). They highlight the way in which the legal human rights apparatus “legitimates its core principles” is by “claiming that they represent the consensus of the ‘international community’” (ibid.). Moreover, a process called “vernacularization”, can be employed to use human rights as values.
It describes the adaptation of human rights to “existing normative structures and specific socio-historical situations” (ibid.). As such, the use of human rights ‘as values’ can be facilitated by translating human rights into local customs and culture.
Thirdly, Merry et al. distinguish the dimension of ‘human rights as governance’. They argue that human rights “have become fundamental to ‘transition to democracy’ projects” and have “become critical to what is called ‘good governance’” (Ibid., p.106). Rather than a neutral form of international law, human rights have become a “particular kind of politics” and “promoting human rights [currently means] institutionalizing these democratic modes of governance, and human rights became the concrete expression of good governance” (Guilhot 2008, 512, in Merry et al., 2010, p.107). To illustrate, international actors have “increasingly made their loans conditional on ‘good governance’ reforms, some of which invoke human rights (Babb & Carruthers, 2008, in Merry et al. 2010, p.108). Additionally, Merry et al. discriminate human rights ‘process principles’: participatory decision-making, transparency, and accountability (ibid.). These principles are regarded to be “important dimension of the way human rights are understood to have an effect in the world” (ibid.). Warren’s notion of “governance-driven-democratization” ties in nicely with Merry et al.’s idea of ‘human rights as governance’. Warren understands this as an increase of strongly democratic ideals, including empowered participation, focused deliberation, and attentiveness to those affected by decisions” (2009, p.3). Warren argued that social movements and civil society organisations, are enabled to use forms of non-institutionalized politics such as “political protest, demonstration, public discourse and influence, and networks” (2009, p.5). Moreover, governance-driven-democracy is only possible within institutionalized politics, such as “deliberative stake-holder rule-making, citizen juries, town-hall meetings, devolved and deconcentrated administration and citizens use of court enabled by legal standing” (2009, p.5). He warns that many governance-driven-democracy initiatives involve “Self-selected stakeholders, and activists, and so by-pass broader public interests, or generate new forms of exclusion” (2019, p.3). Merry et al. argue that human rights ‘as law’ and ‘as values’ are complementary in many ways. On one hand, “the legal side of human rights depends on the work of NGO’s mobilized by human rights values”, as they “provide information and publicize violations [and] help victims” (2010, p.108). On the other hand, “the existence of a legal system is important to human rights advocates”, because “human rights values are more influential because they are codified in a law-like system” (ibid.). Additionally, there are contradictions between these two dimensions, such as “the pragmatic, instrumental aspects of law violate the moral commitments of those who see human rights as a system of values”, or the fact that “if the public sphere is too fragmented or weak to generate shame, human rights law is unable to coerce compliance”.
Cowan et al. posits human rights processes as a “paradox of rights”: both enabling and constraining (2001). Rights processes “produce new subjectivities and social relations”, but at the
same time they “entail unintended consequences” (Cowan, 2006, p.9). To exemplify, “they both facilitate social and political mobilization against maltreatment and may […] normalize and legitimize unequal structures of power and authority” (Wilson, 2006, p.78).
In sum, three dimensions of human rights have been distinguished: human rights as law, as values and as governance. ‘Human rights as law’ and ‘as values’ are in many ways complementary. ‘Law as governance’ includes the notion that human rights have become a concrete expression of good governance and incorporation of democratic modes of governance and is closely related to governance-driven-democratization.
2.3 Use of Law
Whereas the previous section discussed notions of human rights and uses of it, this section will expand on different notions and uses of law. There is a gap between the law as it is written in legal documents, and the law in the way that it is applied in society and affects people’s lives. This real effect in society is often referred to as the legal theory of ‘Law in Action’. Pound distinguishes “law in books” and “law in action”, which are “the rules that purport to govern the relations of man and man” and “those that in fact govern them” (Pound, 1910, p.15). He stated that “the distinction between legal theory and judicial administration is often a very deep one” and that “In a conflict between the law in books and the national will there can be but one result” (Pound, 1910, p.15; p.36). “The law in action, or law as socially enacted often differs from the formal law on the books. […] Furthermore, the real effect of law often lies in legal consciousness or the meaning given to law by individuals who experience it” (Edelman et al., 2010, p.661). The theory of law in action examines law through the effects on people’s lives in reality, as opposed to how it should theoretically affect people. Building on the ‘law in action’ theory, social context influences the law in action. As such, Edelman stated: “The law is a social institution that includes not just codified rules, but also the social context that gives law meaning…” (2010, p.661). In other words, how one perceives legislation and the meaning that he or she subscribes to it, influences the real effect that the law has in practice. Edelman describes that ‘law in action’, in contrast to ‘formal law’ also known as ‘law on paper’, is subjected to politics or social context. He describes ‘formal law’ as “determinative, exogenous and top-down, and relatively autonomous from politics or social context”, while ‘law in action’ is “open to political manipulation and social influence” (2010, p.611).Merely considering a legalistic perspective, disregards political and social context. In human rights discourse, a “legal reflex” – “the automatic and unthinking resort to the law in the belief that it is the most effective and perhaps the only form of protection and remedy” – can cause disregard of political and social processes (Ibid.). Gready & Ensor argue that besides the importance of the law for human rights, the attention should be paid to the “importance of
political and social processes in securing human rights” (2005, p.9). Similarly, Chong argued that “legalization provides tremendously important tools for the realization of human rights”, yet, “legalization is not the only or even the most natural way of understanding and engaging in human rights politics, and the emphasis on legal approaches in human rights may prevent alternative approaches from becoming effective” (Chong, 2010, p.27).
Moreover, Abel distinguishes two strategic postures of the use of law: ‘law as a sword and ‘law as a shield (1995). Firstly, ‘Law as a sword’ can be seen when “social movements mobilized law proactively to challenge the state [or other parties]” (1995, p.11). To exemplify, it may “justify demands for equality” or “legitimate radical social change” (1982, p.10). He added that “there clearly are limits to the capacity of the powerless to use formal procedures to achieve social change” (ibid.). Nonetheless, “vested interests may be better situated to invoke rights, derived from the Constitution or natural law, in opposition to legislative or executive reforms.” (Abel, 1995, p.11). Secondly, ‘Law as a shield’ is not only “an essential defence of the powerless”, but it may “also allow the powerful to resist state control” and maintain the status quo (1982, p.11). As such, “law may be ornamental or two edged” and “many victories, legislative or judicial, are largely symbolic, difficult or impossible to implement in practice” (Abel, 1995, p.11).
In sum, the notion is established that law differs on paper from the situation in reality. Moreover, a ‘legal reflex’ could disregard the political and social processes in human rights politics. Furthermore, a distinction between the use of ‘law as a sword’ and ‘law as a shield’ is made.
2.4 Influence on law
As different notions and uses of human rights and law have previously been established, this section will discuss in which ways social movements influence law.
Social movements can influence law processes in several ways. As to the question ‘how’ movements affect law, Edelman et al. distinguished four different ways of influencing law processes: (1) legal practice, (2) organizational fields, (3) the structure of organizations, and (4) actors within organizations (2010, p.656). Movements can shape (1) legal practice “by changing the law” and “by influencing how the law is practiced”. The latter “shapes the law in action” (2010, p.657). The most direct manner to shape the law is “through test-case litigation and lobbying for legislative change, which are important tools of movement activists”. An indirect way to shape law may be “by giving rhetorical force and political clout to particular legal arguments or by promoting new organizational forms” (ibid.). (2) New organizational fields are sometimes created by social movements, such as women’s gyms or African-American student programs. (3) Structural change in organisations can be brought about by social movements that “amplify legal requirements or sanctions, encouraging organizations to implement practices that are not
explicitly required by law” (p.658). Furthermore, (4) shaping actors within organizations can happen when social movements “influence mobilization” or “motivate change more directly when compliance professionals within organizations become normative entrepreneurs, promoting social movement goals” (p.659).
Besides, the specific influence of social movements on policy and law-making will be addressed. “To more precisely determine when and how a movement influences policy, it is helpful to break down the process of law-making across multiple stages” (Hollar, 2018, p.453). Scholars determine these stages to be “agenda setting, determining legislative content, passage, and implementation” (Amenta et al., 2010, p.291). Placing an issue onto the political agenda “increases the probability of winning some collective benefits for its larger constituency” (ibid.). In establishing the legislative content, activists can “work to increase the value of collective benefits included in any bill that makes it onto the legislative agenda” (ibid.). Thereafter, convincing legislators to vote for the legislation and securing implementation increases the probability of the collective benefits. “Litigation has been an increasingly important process for movements, especially regarding the enforcement of existing laws” (ibid.). Soule and King (2006) argued that movements generally ought to have decreasing influence as they progress through the stages of law-making, because the rules of the policy process become increasingly stringent and the consequences of action become increasingly appreciable (in Hollar, 2018, p.453).
In addition to social movements’ role in LGBTI rights, international actors also play significant role. Rao discusses examples of western post-colonialism in relation to LGBT. “The larger point here is that by the late nineteenth century, the hetero-normalization […] had come to be regarded as a marker of modernity. The irony is that the exact opposite has become true in the early twenty-first century” (2015). He argued that ‘the West’ imposed values on other countries under the flag of ‘modernity’, yet the notion of modernity is constantly changing. He stated: “some Western actors have arrogated to themselves […] the power to define the content of modernity, so that being modern continues to mean becoming like the West” (ibid.). Merry draws parallels between human rights and imperialism and stated: “In some ways, the process of introducing global human rights law parallels the introduction of imperial law during nineteenth- and early twentieth-century European and American colonialism” (2009, p.225). Ayoub (2015, p.313) argued that, based on statistical research on policy diffusion of LGBTI rights, “states care about their image and reputation on the world stage and new adopters are willing to take risky policy decisions when they receive strong signals that their international community expects it of them”. Bell and Coicaud (2007) add that within human rights processes, issues relating to funding can cause “unequal power relations” and “significant challenges when the values or funding requirements […] do not match those of the communities they are hoping to assist.
Similarly, Hollar stated: “Although movements can influence policy without elite allies, their impact tends to be much greater with such allies” (Soule & Olzak, 2004, in Hollar, 2018).
In sum, social movements may affect law in various ways: (1) legal practice, (2) organizational fields, (3) the structure of organizations, and (4) actors within organizations (Edelman, 2010). Moreover, social movements may influence several stages of law-making: agenda setting, determining legislative content, passage, and implementation (Amenta et al., 2010). International actors also influence LGBTI policy and legislation. By funding they aim to ‘promote democracy of good governance’, albeit this might create an unequal power relation with the parties that are receiving the funding.
2.5 Research Themes
The theoretical framework has constructed a lens to analyse the results of the fieldwork. Several fields of theory have been discussed, such as LGBTI rights as human rights, ideas about human rights, theories about the use of law and influence of social movements and international actors on policy and law-making. It should be acknowledged that there are more bodies of literature that touch upon this topic, such as gender literature, LGBT literature, post-conflict literature, post-colonial literature or literature on discrimination and aggression. While recognising the common grounds with this topic, this thesis will adopt the notion of LGBTI rights as human rights and focus on the different uses of law, the different dimensions of human rights, and the influence of social movements and international actors on policy and law-making. The theory highlights the consideration of the social and political context in examining the use of legislation. Moreover, several uses of law and rights have been identified, as well as several factors that could potentially limit the use of law. This produces the following sub-questions: 1. What does the legal, institutional, and sociocultural context surrounding the use of LGBTI rights legislation look like? 2. In which ways are the LGBTI activists using the LGBTI rights legislation in their work? 3. Which factors are limiting the use of LGBTI rights legislation?3. Methodology
This chapter describes the methodological approach employed for this research, which is predominantly qualitative research existing of semi-structured interviews and is complemented with primary and secondary literature that was brought up during those interviews. The chapter will commence with describing the (§3.1) the research design, (§3.2) operationalisation, (§3.3) ethical considerations, and (§3.4) limitations.
3.1 Research Design
This section will describe the considerations made regarding the adopted methods, the fieldwork, ethics and analysis of the results. The structure of this section is, first the (§3.1.1) research focus, then the (§3.1.2) semi-structured interview method, and thereafter the (§3.1.3) fieldwork that was conducted in Pristina. 3.1.1 Research Focus This research focusses on LGBTI community. Despite of progressive LGBTI legislation, they are reported to be the most discriminated group in Kosovo (NDI, 2015). Several members fell victim to violent attacks in recent years. (Kosovo 2.0, 2012; YIHR, 2013). Existing research on the use of rights by marginalized groups, has primarily been focussed on women’s rights (Merry et al., 2010).The focus on Kosovo gives the research an extra dimension. First of all, with respect to LGBTI rights, the reported harassment and discrimination levels are in general higher than any Western Balkan country (NDI, 2015). Besides, Kosovo is also a post-armed conflict setting, with a high density of international organisations on its territory. Thus, the combination of studying the use of LGBTI rights in the post-armed conflict setting of Kosovo, could add to existing literature on the use of rights by marginalized groups.
The research will be conducted in Pristina, the capital of Kosovo, because in the rural areas of Kosovo LGBTI is more secretive and hidden than in the bigger cities (Kosovo 2.0, 2012). As such, to reach a larger number of LGBTI interviewees, the research has been conducted in the capital of Kosovo: Pristina.
3.1.2 Semi-structured Interviews
This section describes that qualitative research has been carried out by conducting semi-structured interviews with LGBTI activists and other actors involved in the LGBTI rights discourse in Kosovo.
The theoretical framework pointed at a gap between the law on paper and the law in practice. In order to explore how the LGBTI rights legislation is used by activists, two groups are
interviewed. Firstly, LGBTI activists is included, who can share their personal experiences with the use of legislation. Secondly, to view the puzzle from multiple perspectives, a selection of other actors who are involved in the LGBTI rights discourse in Kosovo have been included. They can provide insights on how LGBTI activists use legislation from a different point of view.
The method of conducting semi-structured interviews has been selected for this research. This method “is often used when the researcher wants to delve deeply into a topic and to understand thoroughly the answers provided” (Harrell & Bradley, 2009, p.27) In this method, there is a rough outline of questions, but there will be space to adjust the interview if interesting angles or topics come up (ibid.). In this research it is important to leave space for adjustment of the questions, as not all factors that might play a role in the use of the anti-discrimination legislation, can be considered in advance. If the first interviews indicate that an adjustment of the questions is necessary, for example because interviewees repeatedly mention the same aspects, the interview guide will be improved. As the purpose of this research is exploring the use of legislation, the interviews are considered to be descriptive/interpretative semi-structured (McIntosh & Morse, 2015). During the interviews, several organisations told me that they did not want to be quoted directly and referred to their official reports about LGBTI in Kosovo. Other organisations regularly referred to their reports to endorse their claims. Consequently, it was decided to include the reports that were mentioned during the interviews. As such, reports by the American embassy in Kosovo, YIHR, NDI, Ombudsperson Institution, World Bank, ILYA-Europe, the European commission and CSGD, have been consulted as a supplementary literature to increase understanding of the use of LGBTI rights legislation in Kosovo.
3.1.3 Fieldwork
At first, the NGO’s have been approached via existing contacts, who introduced me. If responses stayed out, they were approached directly via email. Thereafter, the sampling of interlocutors continued through ‘snowballing’, a method by which existing study subjects recruit future subjects from among their acquaintances. “Snowballing techniques provide a potentially attractive solution for difficulties relating to targeting a specific group” (Beauchemin & Gonzalez-Ferrer, 2011, p.105). Using networks was important in this research, because the sensitive nature of the topic creates challenges for the access to interviewees.
In total, interviews were conducted with 16 interlocutors, all of which are Kosovar citizens. The sample consists of people who vary in age and gender. Of those 16 interlocutors, 11 identified themselves as activists and 5 are considered ‘actors involved in the LGBTI rights discourse’. Of those 11 activists, 7 are or had been affiliated with one of the two LGBTI NGO’s in Kosovo (CEL or CSGD), 3 are working for LGBTI friendly NGO’s, such as women’s rights NGO. The last two activists 2 are simultaneously working as journalists. Of the 5 other actors involved in
the LGBTI rights discourse, 1 works for USAID in Kosovo, 1 work for an embassy that supports LGBTI NGO’s, 1 works for a national institution involved with LGBTI, 1 works for an international institution involved with LGBTI, and 1 was part of the drafting committee of the human rights chapter in the Constitution. Of the 16 interviews, 15 were conducted in English and 1 was conducted in Albanian in the presence of two interpreters. English was chosen as it was the common language that the researcher and the interlocutors spoke. The generally English level of interlocutors was regarded to be good, as many of them are work with international actors on a daily basis. Of the 16 interviews, 11 were conducted in safe spaces in offices, 1 was conducted via skype and 4 were conducted at a more public location proposed by the interlocutor.
3.2 Operationalisation
The field research produced two forms of qualitative data: recordings of interviews and copies of reports made by organisations. The recordings of the interviews were converted into transcriptions and coded. The coding was done by separating themes and structured by the three sub-questions that followed from the theoretical framework.
As such, the first chapter (§4.1) describes how the results point to relevant legislation and relevant context for the use of LGBTI rights legislation by activists. This chapter includes the legislative, institutional, and socioeconomic landscape of the LGBTI discourse. This build-up based on information that interlocutors provided about the LGBTI discourse. This information is needed to understand the arguments that follow. Additionally, three key cases, that were defined as critical moments by interlocutors. This structure was chosen to enabling referring to those cases later on. Thereafter, (§4.2) the use of LGBTI rights legislation by activists will be discussed. This will be structured by following Merry et al.’s (2010) three dimensions of human rights: human rights as (§4.2.1) law, as (§4.2.2) values, and as (§4.2.3) governance. The last results chapter (§4.3) describes the limiting factors to the use of LGBTI rights legislation that were found. The results will be analysed by viewing them through the lens that was constructed in the theoretical framework. Concepts such as ‘law on paper’ (Pound, 1910), dimensions of human rights (Merry et al., 2010), law as a ‘sword or shield’ (Abel, 1995) will be employed to make sense of the results. Furthermore, the notion of process stages of influence of social movements (Edelman et. al., 2010) and the stages of law-making (Amenta et al., 2010) will be considered to understand to gain more insight into the use of rights.
This section will discuss some ethical considerations that have been taken into account in the study, including informed consent, the ‘do no harm’ principle, anonymization, and the researchers positionality.
To start, all interlocutors gave ‘informed consent’, which has been recorded during the interview. This means that “Participants exercise their rights as autonomous persons to voluntarily accept or refuse to participate in the study” (….). The goal of the research was explained before the meeting and at the beginning of the meeting. All interlocutors were asked permission to record and transcribe the interviews. Furthermore, it was stated that quotes could be used in the thesis report and that the report would be publicly accessible. All interlocutors gave their verbal informed consent.
Secondly, the “do no harm” principle was considered in this research. This ethical principle pertains to “doing good and avoiding harm” by applying ethical principles (Orb, Eisenhauer & Wynaden, 2000, p.93). As such, “the protection of human subjects or participants in any research study is imperative” (ibid.). Data shows that LGBTI rights are a sensitive issue in Kosovo (NDI, 2015; YIHR, 2013). Thus, considerations about the (physical) safety of the interviewees, as well as my personal safety have been taken into account. To prevent unsafe situations, as mentioned before, the LGBTI activists have been contacted through snowballing and LGBTI NGO’s. These networks could provide a safer environment and communication for the LGBTI activists and the interviews will take place in safe or neutral places. Lastly, in order to ‘do no harm’, questions about traumatic experiences have been avoided as much as possible. Furthermore, the option of anonymity has been offered to all interlocutors. Although 10 out of 11 activists gave permission for their names to be used, it was decided to anonymize the interlocutors as much as possible. Only when the identity of the interlocutor contributed to the story or if the information was publicly known, names were disclosed in this thesis report. Consequently, it was decided to use statements of three interlocutors: Igo, Bler, and Gjylieta. These three are already publicly known. Blert is actively seeking publicity for his case in the international court, Igo came out publicly in 1996 and is thus the first publicly open lesbian in Kosovo, and Gjylieta was head of the Human Rights sub-committee of the drafting commission of the Constitution. Their real names were only used for statements in relation to their public work or public actions, when it was of added value. For all their other statements, pseudonyms were used. This was decided to protect all activists as much as possible, knowing that Kosovo is a small place and a lot of people know each other, especially within the LGBTI field.
To avoid negatively impacting relations within the LGBTI rights realm and to not jeopardize further research, it was decided to anonymize the activists as much as possible. Furthermore, the other actors all gave their permission to be disclosed, however, they indicated
that before using quotes, I had to ask permission. Due to lack of response by the institutions regarding permission to use their quotes, I’ve decided to anonymize the other actors as well.
Besides, it was taken into consideration that there was something to gain for the interlocutors as well. This research provides a stage for the activists in order to bring attention to LGBTI rights in Kosovo, as this thesis will be published in a publicly accessible database of the University of Amsterdam. The final report will be send to the interlocutors. Lastly, I aimed to be aware of my position as a researcher. I come from the Netherlands, a country with liberal values towards LGBTI and general acceptance and tolerance for LGBTI. As such, my position might be biased, as I might consider acceptance of LGBTI to be ‘normal’. I tried to be careful and present myself as neutral towards the issue as much as possible.
3.4 Methodological Limitations
There are several limitations to the methodology that need to be acknowledged. This section will discuss limitations with regard to data collection, generalizability, access to data, language barriers, and constrains on time and place.To start, the data collection method of snowballing creates limitations for the sample of interlocutors. The data collection method snowballing “implies some clear selection biases” (Beauchemin & Gonzalez-Ferrer, 2011, p.103). Some selection biases might have occurred, such as the fact that most activists were connected to the same two LGBTI NGO’s in Pristina, and the fact that most activists were open about their sexuality or gender identity. It could be the case that LGBTI members who are more closely connected to the NGO’s are more outspoken and politically active than other LGBTI members. The small sample cannot represent all LGBTI activists, however, considering the fact that the group of LGBTI activists in Pristina is mostly build up by these two NGO’s, it does provide interesting insights into the situation of several LGBTI activists in Kosovo. Moreover, the aim of this study is not to generalize, but rather to provide insight into the situation.
Another limitation is related to the limited access to usable information. Firstly, embassies and official institutions, often did not want to give official statements and stressed that their opinions did not reflect the country or organisation. Therefore, their statements have been anonymized and some of the written materials they provided have been used. This limits the weight that the statements of employees of these embassies and institutions carry. Secondly, the number of studies and report that have been published on LGBTI in Kosovo is limited. The same studies are referred to repeatedly. This could confine the reliability of these data, since there are not many studies that challenge or confirm the findings. The fact that 14 out of 15 interviews were conducted in English, could potentially create several limitations. First of all, since English is not the mother tongue of the researcher nor of the
interviewees, misunderstandings could have occurred. To overcome this, all interviews were recorded, questions were asked to clarify haziness, and follow-up questions were asked over email. Nonetheless, the potential of misunderstandings must be recognized. One interview was conducted in Albanian, in the presence of two colleagues, functioning as translators. A limitation that have to be acknowledged in this regard is that when translators interpret words and translate them, they do this from their own perspective. Their interpretation might differ from the original meaning that the interlocutor subscribed to the words.
Moreover, the research time and location were restricted. Interviews were only conducted during 3,5 weeks in Pristina. It should be acknowledged that this limited time and location, has also constrained the number and variety of interlocutors that have been included. Building trust in a community that is surrounded by secrecy takes time. A longer period might have increased the number and variety of interlocutors. Also, data indicates that there are big differences between the city and rural areas. This research is now limited to activists in Pristina. Finally, my personal biases are likely to have influenced the results of this research.
4. Legal and Sociocultural Landscape
The interviews conducted in Kosovo (see §3.2.1) resulted in extensive qualitative data on the use of legislation by LGBTI activists. This chapter will present the results to the question: ‘What does the legal and social context surrounding the use of LGBT rights legislation look like?’. First, (§4.1) the legal landscape will be described and thereafter, (§4.2) the institutional landscape will be discussed and lastly, (§4.3) the social landscape will be examined.4.1 Legal Landscape
Which legal documents form the most relevant LGBTI legislation in Kosovo? The law on paper (see §2.3) in Kosovo is generally regarded to be relatively advanced: “Kosovo’s legal framework provides advanced guarantees for human rights aligned with international standards” (CSGD,2017). Yet, it does contain several contradictions. This subchapter will discuss the most relevant legislation for LGBTI members in Kosovo and the major contradictions of legislation that concerns the LGBTI community. The selection of legislation is based on the particular legislation that was mentioned by interlocutors during the interviews. As mentioned before, the opinions of the interlocutors weigh a lot, because the results are based on their insights. This section aims to provide an overview of relevant legislation in order to facilitate discussion of the use of this legislation in the following chapters. It includes the (§4.1.1) Constitution, the (§4.1.2) human rights package of laws, the (§4.1.3) Criminal Code of Kosovo, several (§4.1.4) contradictions in legislation, and a wrap up (§4.1.5). It should be noted that this is not all legislation that relates to LGBTI. This chapter describes the legislation that was most frequently mentioned by interlocutors and includes a selection of the most relevant legislation pertaining to the rights of LGBTI in Kosovo. 4.1.1 The Constitution The Constitution is the “highest legal act of the Republic of Kosovo” and “Laws and other legal acts shall be in accordance with this Constitution”3. The Constitution is “one of the most advanced anti-discrimination laws in the region” (YIHR, 2013). It stands on the values of equality, respect for human rights and freedoms and the rule of law, and non-discrimination4 and stated
3 Constitution of the Republic of Kosovo, 2008, Chapter I, art. 16(1). 4 Constitution of the Republic of Kosovo, 2008, Chapter I, art. 7(1).
that no one shall be discriminated against on the grounds of, amongst others, gender and sexual orientation.5 With regard to marriage and divorce, the gender-neutral term ‘spouses’ is employed
in the Constitution,6 leaving the door open a case to be brought forward in the Constitutional
court. Furthermore, human rights and fundamental freedoms guaranteed by several international agreements and instruments, including the Universal Declaration of Human Rights (UDHR), are “directly applicable in the Republic of Kosovo and, in the case of conflict, have priority over provisions of laws and other acts of public institutions”.7 These previously
mentioned provisions are considered to be most relevant articles in the Constitution for the LGBTI community.8
The Constitution of Kosovo is generally considered to be “progressive”9 and “open [..]
towards human rights”10. “Bardhyl”, a LGBTI activist, said: “The human rights chapter of the
Constitution, for me it is… I’m not going to say perfect, but almost perfect. Because it doesn’t create barriers, it’s always open for all citizens”11.
4.1.2 The Human Rights Package of Laws
The principles of ‘equality’ and ‘non-discrimination’ are further amplified by a series of laws that interlocutors referred to as ‘the human rights package of laws’. This includes the Law on the Protection from Discrimination12, the Law on Gender Equality13, and the Law on Ombudsperson14.
The Law on the Protection from Discrimination replaced the Anti-Discrimination Law from 2004, which did not include protection from discrimination based on gender identity.15 The
5 Constitution of the Republic of Kosovo, 2008, Ch. II, article 24(2). 6 Constitution of the Republic of Kosovo, 2008, Ch. II, article 37. 7 Constitution of the Republic of Kosovo, 2008, Ch. II, article 22. 8 “Bardhyl”, interview, Pristina, 17-04-2019. 9 “Rilinda”, interview, Pristina, 08-05-2019. 10 “Besim”, interview, Skype, 29-04-2019. 11 “Bardhyl”, interview, Pristina, 17-04-2019. 12 Law No. 05/L-021. 13 Law No. 05/L-020. 14 Law No. 05/L-019. 15 Law No. 2004/3, Chapter I, art. 2 (a).
new law establishes a general framework for prevention and combating “direct and indirect”16
discrimination based on several grounds, including gender identity and sexual orientation.17 The
Law on Gender Equality replaced the Law on Gender Equality in Kosovo.18 The new law now
includes a definition of gender-identity, whereas gender-identity was not mentioned in the previous law. The Law on Ombudsperson defines the Ombudsperson Institution (OIK) as “a mechanism of equality for promoting, monitoring and supporting equal treatment without discrimination on grounds protected by the Law on Gender Equality and the Anti-Discrimination Law”.19 This law replaces the Ombudsman act 2004.20 The amendments include the option for the
OIK to “appear in the capacity of the friend of the court (amicus curiae) in judicial processes dealing with human rights, equality and protection from discrimination”.21 This means that the
OIK can provide Legal Opinions to the court regarding these issues, as it did in the case of Blert Morina (see §4.4.2). In this case, OIK substantiated the legal basis regarding the admissibility of Blert’s case by the Constitutional Court (OIK, 2019).
Consequently, these amendments after the Constitution have, among other things, resulted in inclusion of gender identity as a ground of discrimination, an amended definition of gender-identity, and the inclusion of discrimination on the grounds of gender identity and sexual orientation, with the Ombudsperson as a support mechanism. Interlocutors describe these laws as “quite advanced as a package of laws”22 and “quite important for LGBTI persons in Kosovo”.23 4.1.3 The Criminal Code The Criminal Code of the Republic of Kosovo (CCRK)24, which was under revision for two years,
entered into force on 15th of April 2019. CSGD and CEL have presented various proposals for
16 Law No. 05/L-021, Chapter I, art. 3.
17 Law No. 05/L-021, Chapter I, art. 1. 18 Law No. 2004/2. 19 Law No. 05/L-019, Chapter I, art. 1. 20 Law No. 2003/23. 21 Law No. 05/L-019, Chapter III, art. 16 (9). 22 “Bardhyl”, interview, Pristina, 17-04-2019. 23 “Drilon”, interview, Pristina, 25-04-2019. 24 Law No. 06/L-074.
amendments in the process, to include a definition of hate crimes and include sexual orientation and gender identity as grounds for aggravating circumstances in the calculation of the punishment.25 The Ferizaj case (see §4.4.1), illustrates the importance of these amendments. In
this case, two LGBTI members were attacked based on their sexual orientation, yet the perpetrators were found guilty based on assault, rather than aggravated assault, because the Criminal Code did not include sexual orientation as a valid reason for hate crimes (ERAC, 2017). Subsequently, the CCRK now includes gender identity and sexual orientation in the definition of hate crime26 and includes both as grounds in 7 criminal offenses: inciting discord and
intolerance27, aggravated murder28, assault29, light bodily injury30, grievous bodily injury31,
violating equal status of citizens and residents of the Republic of Kosovo32, and destruction or
damage to property33.
LGBTI NGO’s are positive and wrote that the amendments to the CCRK “are very good news because they provide a concrete legal framework that facilitates the justice system by addressing criminal offenses targeting the LGBTI community” (CEL & CSGD, 2019B). “Besim”, a LGBTI activist, proclaimed about the CCRK amendments: “It's a legal precedent, precedent for other countries to work on this matter”.34 4.1.4 Contradictions Even though the legal framework pertaining to the rights of LGBTI persons in Kosovo is relatively advanced, several laws are not in harmony with each other.
25 “Bardhyl”, interview, Pristina, 17-04-2019. 26 Law No. 06/L-074, Chapter III, art. 70 (2.12). 27 Law No. 06/L-074, Chapter XI, art. 141 (1). 28 Law No. 06/L-074, Chapter XVI, art. 173 (1.10). 29 Law No. 06/L-074, Chapter XVI, art. 184 (3). 30 Law No. 06/L-074, Chapter XVI, art. 185 (3). 31 Law No. 06/L-074, Chapter XVI, art. 186 (4). 32 Law No. 06/L-074, Chapter XVII, art 190 (1). 33 Law No. 06/L-074, Chapter XXVI, art. 321 (4). 34 “Besim”, interview, Skype, 29-04-2019.
To start, whereas the Constitution employs gender-neutral language to describe family and marriage, the language of the Family Law of Kosovo35 is not consistent with the Constitution. The Constitution stated that “everyone enjoys the right to marry and the right to have a family as provided by law” and that “marriage and divorce is regulated by law and are based on the equality of spouses”36. Contrarily, the Family Law of Kosovo defines a marriage as “a legally registered community of two persons of different sexes, through which they freely decide to live together with the goal of creating a family”37. Interlocutors argued that this law is “not harmonized with
the Constitution”38 or even “completely in contrast with Constitution39”. The lack of
harmonization is seen as a problem, “because in order to see how it works in practice [a couple] needs to challenge it”40 and “you can’t expect someone to sacrifice his or her life to challenge a law”.41 The strategic litigation of “such a high-profile case could involve considerable risk for the individuals involved […] therefore, LGBTI organizations have considered an alternative approach to amending the family law” (USAID Kosovo, 2018). The government of Kosovo is establishing a unified Civil Code, which involves codifying, adopting or amending laws. The EU is funding this project “to strengthen the rule of law and harmonize Kosovo legislation with the European standards in the area of civil law and property rights” (EU office in Kosovo, 2014). The “fourth book of the Civil Code regulates family”42, so LGBTI NGO’s regard this drafting process as an
opportunity for amending the Family Law to include same-sex marriage. “Fatbardha”, an employee of a LGBTI supporting embassy, stated: “The idea is that since the Constitution does not limit marriage, they [LGBTI NGO’s] want the Civil Code to have the same approach, but of course the institutions think that it’s too early to do that before testing the water”43.
35 Law No.2004/32, 2006.
36 Constitution of the Republic of Kosovo, 2008, Chapter II, art. 37 (1,2). 37 Law No.2004/32, 2006, part II, Chapter I, art. 14. 38 “Bardhyl”, interview, Pristina, 17-04-2019. 39 “Rilinda”, interview, Pristina, 08-05-2019. 40 “Rilinda”, interview, Pristina, 08-05-2019. 41 “Edon”, interview, Pristina, 06-05-2019. 42 “Bardhyl”, interview, Pristina, 17-04-2019. 43 “Fatbardha”, interview, Pristina, 30-04-2019.
Another contradiction is encountered by transgender persons who aim to obtain official recognition of their gender identity. On one hand, the Law on Civil Status44 includes sex as a
characteristic which “May be removed, changed, abolished or passed on to others only in cases and manner expressly provided in the existing law or any other specific law”.45 On the other hand,
“existing law does not clearly state procedures for changing one’s sex on official documents, and no other law regulates this issue” (USAID Kosovo, 2018). Blert, executive director of CEL, explained the challenge that poses for him: “the theory says that you can do it but never says how you can do it. So what is missing is administrative procedures”.46
4.1.5 Wrap up
In sum, the Constitution, the human rights package of laws and the amended Criminal Code are considered to be advanced for the LGBTI community. They provide protection for the LGBTI community or do not limit LGBTI rights. The Law on Family is considered to be not in line with the Constitution and restricts the possibility for LGBTI members to engage or get married. Similarly, the Law on Civil Status is missing administrative procedures, which complicates the effect of the law. This section has illustrated that ‘law on paper’ (see §2.3) pertaining to the rights of LGBTI in Kosovo is relatively advanced. In theory, it protects and guarantees various human rights and fundamental freedoms of LGBTI members.
4.2 Institutional Landscape
In Kosovo, several national institutions, international organisations, NGO’s and other international actors are involved in LGBTI rights. This may be to implement, monitor, advocate, or improve rule of law. This section will discuss the different actors in the field of LGBTI issues in Kosovo, based on results from the fieldwork. It will discuss: (§4.2.1) NGO’s, (§4.2.2) the Office of Good Governance, (§4.2.3) Ombudsperson Institution, (§4.2.4) Advisory and Coordination Group, (§4.2.5) other International actors, and a (§4.2.6) wrap up. 4.2.1 NGO’s44 Law No. 04/L-003. 45 Law No. 04/L-003, art. 10.
46 Blert, interview, Pristina, date not disclosed.
In Pristina, there are currently two LGBTI NGO’s active: The Center for Social Group Development (CSGD) and the Centre for Equality and Liberty (CEL). There used to be more LGBTI NGO’s, such as QESh and Libertas, but they were all closed down. “Debora”, a LGBTI activist, stated that not all human rights NGO’s support LGBTI:
“A lot of NGOs in Kosovo, also NGOs that are working in HR field, they just don’t really support LGBTI rights. They’re just like ‘no, these are two different things’ [human rights and LGBTI rights]. And we always want to put out there that you don’t have really to see separate these rights. It’s just like human rights, LGBTI rights are not something special, something more, it’s just human rights, like any other right”47. Nonetheless, there are some HR NGO’s that support LGBTI rights. The Equal Rights for All Coalition (ERAC) is a “coalition of grassroots and medium-sized human rights based CSOs with the aim to strengthen their capacities to advocate for the promotion and protection of fundamental rights of […] LGBTI, women, youth, and minority communities” (ERAC, n.d.). All participating NGO’s agree that LGBTI rights are human rights and they cooperate to strengthen their capabilities. 4.2.2 Office of Good Governance There are several institutions which are responsible for the protection and promotion of LGBTI rights. To start, the Office of Good Governance, Human Rights, Equal Opportunities and Non-implementation of the Law on Protection from Discrimination (OGG). This office within the Prime Minister’s Office, is responsible to support the implementation of the Law on Protection from Discrimination.48 Amongst other things, the OGG should advice the government on LGBTI issues, monitor implementations of the Ombudsperson’s recommendations (see §4.2.3) draft policies, strategies, and actions plans and collect data to report annually.49 The OGG is also responsible for the monitoring and reporting on implementation of the National Action Plan (NAP) for LGBTI persons, drafted by the Advisory and Coordination Group (ACG) (see §4.2.4).
47 “Debora”, interview, Pristina, 19-04-2019.
48 Law No. 05/L-021, art. 10. 49 Law No. 05/L-021, art. 10.
Interlocutors regard that the impact of the OGG is held back. Fatbardha declared that “there was been much criticism on the OGG”, because implementation “is not a priority for the government; The government has the right mechanisms in place and the legislation, but they are not pushing very much for implementation”50. “Debora” stated that “[the OGG has] no executive
power, but is monitoring […] They have [had the] action plan for 3 years and nothing has been done until now”.51 As such, the OGG is responsible for various implementations pertaining to
LGBTI issues, however, the LGBTI activists seem not very impressed by the results.
4.2.3 Ombudsperson Institution
The Ombudsperson Institution (OIK) is “a legal mechanism for protection, supervision and promotion of fundamental rights and freedoms”52 and aims “to monitor and protect human rights and freedoms” (OIK, 2017). It is “an equality mechanism for promotion, monitoring and support of equal treatment without discrimination of bases protected by the Law on Gender Equality and the Law on Protection from Discrimination”53. The Ombudsperson is described in a somewhat more positive light, “Debora” regards it as “really good that he’s helping and that he’s going public. It’s really helpful for the NGO’s and community to push somethings forward”54, however “he cannot really do much. He can send a support letter, for example he is supporting the case of Blert and also has been really vocal for the Civil Code”55. “Genta”, a director of the OIK, explained: “we are never part of a working group,
because we don't have the competence to do that. Because we are independent. We are just monitoring”.56 “We give our opinions if they are asking them from us”57 and those “opinions are
every time based on the cases in the European Court in Strasbourg, cases that are identically. And in this way, we help the court very much, in reviewing the case”58. The ombudsperson’s role can
50 “Fatbardha”, interview, Pristina, 30-04-2019. 51 “Debora”, interview, Pristina, 19-04-2019. 52 Law No. 05/L-019, art. 1. 53 Law No. 05/L-019, art. 1. 54 “Debora”, interview, Pristina, 19-04-2019. 55 “Debora”, interview, Pristina, 19-04-2019. 56 “Genta”, interview, Pristina, 06-05-2019. 57 “Genta”, interview, Pristina, 06-05-2019. 58 “Genta”, interview, Pristina, 06-05-2019.
be illustrated with two cases. First, about Blert’s case, he told: “[We] sent the case to a basic court. And after that, the Ombudsperson released a report which [estimated that receiving] a ‘final decision [from the basic court], [would] take eight years”.59 This Legal Opinion in the capacity of
Amicus Curia, substantiated the admissibility of Blert’s case by the Constitutional Court (OIK,
2019, p.332). This Legal Opinion seeks to release Blert from the obligation to first exhaust all legal remedies, before going to the Constitution Court. Another LGBTI related example concerns an Ex Officio investigation by the OIK on blood donation. The director explained: “[If one goes] to give blood, and then the forms, they say ‘if you have sex with the same sex, you don't have right to give the blood’. And now we are opening an Ex Officio investigation regarding this”60. As such, the OIK seems to be helpful in its role of Amicus Curia, but the OIK’s competence and mandate seems too limited to be of greater help. 4.2.4 Advisory and Coordination Group The Advisory and Coordination Group for Rights of LGBTI (ACG), was established in 2013 for the purpose of “creating a unity, partnership and regular cooperation amongst local and international institutions and Non-Government Organizations” and for “initiating joint activities on prevention and combating discrimination on LGBTI community and raising awareness on human rights”61.
This group was established by “at that time, the prime-minster, who is now the president of Kosovo”62“Genta” stressed that “the NAP was drafted by this group”.63 4.2.5 International Actors The LGBTI movement receives support from international actors, who seem to view LGBTI rights as common values. This section will discuss the support of international actors, as well as briefly touch upon other international actors.
“Besim”, a LGBTI activist, stated that “allies [of the LGBTI community] within the international community, which are the EU, EULEX, the US government, The Netherlands, and the
