Pursuant to Article 143, one who commits rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity, knowing such offense is part of a widespread or systematic attack directed against any civilian population, shall be punished by imprisonment of at least 15 years for committing crimes against humanity. Article 145 states that one who commits rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence also constituting a grave violation of the Geneva Conventions, shall be punished by imprisonment of not less than 10 years for the commission of war crimes. Similarly, Article 147 punishes the same war crimes as Article 145 in conflicts of a non-international character. Articles 163 – 166 criminalize human trafficking, slavery, and related offenses including smuggling migrants and destroying victims’ identification papers. Penalties for violations of these articles include fines and imprisonment from between 1 – 12 years. Articles 179-180 prohibit sterilization without consent and female genital mutilation. The Criminal Code also punishes sexual violence including rape (Article 227), sexual harassment (Article 183), sexual assault (Article 228), and sex trafficking and forced prostitution (Articles 229, 234). Finally, Articles 239 and 248 contain gender-neutral bans on forced and early marriage and domestic violence, respectively. (Unofficial English version available here.)
Kosovo
Legislation
Kodi Penal i Republikës së Kosovës (Penal Code of the Republic of Kosovo) (2018)
Ligji Nr. 05/L -020 Për Barazi Gjinore (Law No. 05/L -020 on Gender Equality) (2015)
Law No. 05/L-020 on Gender Equality promotes gender equality, by defining the relevant concepts, setting forth various measures to protect equal rights of genders, and specifying the institutions responsible for gender equality. The Law defines “woman” and “man” as including any person who considers oneself as such, and describes gender identity – which does not require medical intervention – as a “protected characteristic.” Direct and indirect gender discrimination are prohibited under the Law, including less favorable treatment of women for reasons of pregnancy, maternity, or sexual orientation, and gender-based violence. Harassment and sexual harassment are also forbidden, and whether a person refuses or surrenders to such behavior shall not be used as a basis for a decision affecting that person in a legal proceeding. The Law directs the Kosovo institutions to implement various general measures to achieve gender equality in Kosovo, including gender mainstreaming in all policies and legislation, gender budgeting in all areas, and ensuring recruitment and appointment are consistent with the requirement for equal representation of women and men. In areas where inequities exist, public institutions are further instructed by the Law to take temporary special measures to accelerate the realization of gender equality, including quotas, preferential treatment, hiring, and promotion. The Law in particular requires legislative, executive, and judicial bodies at all levels to adopt special measures until equal gender representation is achieved. The Law establishes an Agency for Gender Equality to support the implementation of the Law, and further mandates that all ministries and municipalities must appoint gender equality officials, and allocate sufficient resources from their budget, to implement the Law. Discrimination on bases including sex, pregnancy, or birth, is prohibited in employment matters including access to employment or training, and working conditions. In regard to education, the Law proscribes sex discrimination in access to education and scholarships, evaluation results, and attainment of degrees, and mandates the inclusion of gender equality education in school curricula at all levels. Persons who believe the principle of equal treatment has not been implemented in relation to them may initiate proceeding in accordance with the Law on Protection from Discrimination. Violations of the Law are punishable by fines of up to 700 Euros for individuals, and 900 Euros for legal entities. (Unoffocial English version available here.)
This law defines, prohibits, and facilitates the treatment of perpetrators of domestic violence through a system of protection orders. The law stipulates family relationship to exist among persons beyond spouses and parent/child. It includes people who are/were engaged, in an extra-marital union, or co-habitating in a common household, and recognizes domestic violence to include abuses such as causing fear, insults, derogative behavior, and non-consensual sex. The law contemplates various protection measures that can be ordered by the courts, such as those prohibiting the approach or harassment of the victim, mandating medical treatment for substance abuse, and authorizing accompaniment by a police officer. A petition for a protection order or emergency protection order can be submitted by not only the victim and his/her representatives, but also by NGOs. The courts are required to render a decision within 15 days of receipt of a petition for protection order, and within 24 hours after the submission of a petition for emergency protection order. A protection order or emergency protection order shall be issued under the Law where the court suspects the perpetrator shall unavoidably risk the health, safety, or well-being of the protected party. A decision regarding a protection order or emergency protection order may be appealed, but the filing of the appeal does not stay the execution of the order. The Law further provides temporary emergency protection orders, petitions for which can be submitted to the police outside the courts’ working hours, which expire at the end of the next court working day. The police may issue a temporary emergency protection order if the perpetrator poses an immediate threat to the safety, healthy, or well-being of the protected party and the issuance of the order is necessary to protect against such a threat. A violation of a protection order, emergency protection order, or temporary emergency protection order is punishable by a fine of 200 to 2,000 Euros, or imprisonment of up to six months. (Unofficial English version available here.)
Kushtetuta e Republikës së Kosovës (Constitution of the Republic of Kosovo) (2008)
Article 7 of the Constitution of Kosovo states that Kosovo’s constitutional order is based on principles including equality, respect for human rights, non-discrimination, and social justice. The article further declares that Kosovo ensures gender equality as a fundamental value for the democratic development of the society, providing equal opportunities for both female and male participation in the political, economic, social, cultural, and other areas of societal life. Article 24(2) prohibits discrimination on grounds of gender and sexual orientation. Article 28(1) stipulates that no one shall be held in slavery or servitude, and paragraph (3) specifically forbids trafficking in persons. Article 37 declares that everyone enjoys the right to marry based on free will. It mandates that marriage and divorce be based on the equality of spouses. Article 71(2) stipulates that the composition of the Assembly of Kosovo shall respect internationally recognized principles of gender equality. Article 101(1) stipulates that the composition of the civil service shall take into account internationally recognized principles of gender equality. Article 104(2) stipulates that the composition of the judiciary shall reflect internationally recognized principles of gender equality. Article 108(2) charges the Kosovo Judicial Council to ensure that the Kosovo courts follow the principles of gender equality. Paragraph (4) requires proposals for appointment of judges to reflect principles of gender equality. Article 109(4) stipulates the State Prosecutor shall respect the principles of gender equality. Article 110(1) charges the Kosovo Prosecutorial Council to ensure that the State Prosecutor reflects the principles of gender equality. Paragraph (2) requires that proposals for appointments of prosecutors shall reflect principles of gender equality. Article 114(1) requires the composition of the Constitutional Court to respect principles of gender equality. (Unofficial English translation available here.)
Domestic Case Law
PAKR Nr. 39/2015 Gjykata e Apelit (Court of Appeals) (2016)
Four defendants were charged with War Crimes against the Civilian Population in violation of Article 152 of the Criminal Code of Kosovo and the Geneva Conventions, for variously beating “A” and “B,” both Kosovar Albanian female civilians, raping A, and subjecting them to a mock execution. All the defendants were acquitted by the Basic Court. On appeal, the Court of Appeals affirmed the Basic Court’s acquittal of two of the defendants as the victims could not positively testify about their participation, and no other evidence conclusively linked them to the crimes. However, the panel held that the lower court failed to fully adjudicate the mock execution charge. It also dismissed as “incomprehensible” the first instance court’s ruling that there was no credible evidence that the victims had direct contact with S.S. (one of the remaining defendants who allegedly beat them), noting the victims’ testimony indicated they were certain of the identity of the defendant. The tribunal held that the lower court’s refusal to allow an in-court identification of S.S. was a violation of the Criminal Procedure Code. While the appellate court agreed that witness identification should be approached with great caution, here the victims had the opportunity to see the defendant clearly for an extended time. The panel disagreed that witness testimonies are by default unreliable, explaining that they are entitled to the same evidentiary value and analysis as any other evidence and in certain cases the victim’s testimony is the only available evidence. The appellate court then pointed out the lower court’s contradiction with regard to the rape charge: it accepted that A was kidnapped, and also that there were intercourses while she was in captivity, yet then assumed that the intercourses may have occurred with consent, only because A and H.2. (the defendant accused of raping her), had an earlier intimate relationship. The tribunal held that it was absurd to assume that someone in captivity would be able to validly express consent, and even if A did consent due to the Stockholm Syndrome, a traumatic bonding of that kind would be a psychological condition and “any consent expressed by a victim in such circumstances would hardly be considered legally valid.” The appellate court further ruled that the events took place during a war, and consent in such a coercive environment would be “void by default,” citing the definition of rape in the case law of the International Criminal Tribunal for Rwanda. On the question of whether H.2.’s actions constituted a war crime, the panel held that it was irrelevant whether he had any association with the military. The relevant factors were instead whether there was an ongoing armed conflict, whether it was governed by international or domestic conflict norms, whether the victims were protected persons under international law, and whether there was a causal link between the armed conflict and the offense. The Court of Appeals remanded the case to the Basic Court to clarify facts on the mock execution and the involvement of H.2. in the alleged rape, and to conduct an in-court identification of S.S. (Also available in English.)
Ap.-Kz. Nr. 466/2011 Gjykata Supreme e Kosovës (Supreme Court of Kosovo) (2012)
In the prosecution of an international human trafficking ring, B.D., a nightclub owner, was charged with Facilitating Prostitution in violation of Article 201 of the Provisional Criminal Code of Kosovo, for recruiting and organizing 16 Moldovan women for prostitution. His co-defendants B.J., M.G., and S.Z. were immigration officials charged with Abusing Official Position and Smuggling of Migrants in violation of Articles 339 and 138 of the Criminal Code, for enabling 35 illegal immigrants – mostly Moldovan women – to enter Kosovo, including by issuing fake identification documents to them, with the motive of obtaining unlawful material benefits for themselves. B.D. was found guilty by the District Court, while B.J., M.G., and S.Z. were acquitted. On appeal, the Supreme Court observed that the District Court based B.D.’s guilt exclusively on text messages sent to his mobile phone asking to make reservations to meet with various individuals identified only by nicknames. The challenged judgment did not clarify the identities of the persons behind the nicknames and did not assess whether they were indeed the alleged victims identified in the indictment. The lower court’s decision also made no reference to the statements of the alleged victims, particularly whether the statements corresponded to and corroborated the contents of the text messages. The court further held that the District Court’s judgment did not contain sufficient reasoning a proper assessment of the evidence regarding B.J., M.G., and S.Z’s alleged enabling of illegal immigration. The tribunal also faulted the lower court for failing to determine the complete facts, including the immigration registration system, movements of large sums in the defendants’ bank accounts, and transcripts of intercepted communications between the defendants. Accordingly, the Supreme Court annulled the District Court’s verdict and remanded for retrial. (Also available in English.)
AP-Ki. Nr. 192/2010 Gjykata Supreme e Kosovës (Supreme Court of Kosovo) (2010)
The defendant husband held enduring suspicions that the late victim, his wife, was involved in an extramarital affair, and required her to seek permission to leave their home without his or their children’s accompaniment. The victim one day attempted to leave the house without the defendant’s permission, resulting in an argument in which he shot and killed her. The defendant was charged with Aggravated Murder under Article 147 of the Provisional Criminal Code of Kosovo, found guilty, and sentenced to 15 years’ imprisonment. The defendant appealed, arguing that the offense is Murder Committed in a State of Mental Distress (Art. 148) rather than Aggravated Murder, because he at the time of the shooting had reacted to the victim’s insult and did not act out of jealousy. The Supreme Court rejected the argument and ruled that the court of first instance correctly qualified the crime as Aggravated Murder rather than Murder Committed in a State of Mental Distress. The court reasoned that the offense of Murder Committed in a State of Mental Distress did not apply because Article 148 requires that the mental distress happen through no fault of the accused, whereas in this case the victim’s insult was a reaction to the defendant’s previous false accusations, personal offenses, and even physical mistreatment. The tribunal further held that the court of first instance correctly found that the defendant had killed his wife for base motives as required for Aggravated Murder under Article 147, explaining that the defendant did not only kill his wife out of jealousy, but also because she had “dared” to attempt to leave the house without his permission. This reaction demonstrates the defendant’s belief that he was entitled to decide his wife’s right to exist, a “ruthlessly selfish concept” that showed “utmost disrespect for the natural right of another human being to live and is as such a base motive.” Accordingly, the sentence was appropriate. (Also available in English.)
PKL-KZZ-137/2011 Gjykata Supreme e Kosovës (Supreme Court of Kosovo) (2012)
The defendant was added to an expanded ongoing rape investigation against his associates, charged and convicted of rape in violation of Article 193 of the Criminal Code of Kosovo, and sentenced to three years of imprisonment. Following the Supreme Court’s affirmation of the first instance court’s judgment, the prosecutor filed a Request for Protection of Legality in favor of the defendant, claiming that the court of first instance failed to assess relevant evidence in favor of the defendant and based its decision on evidence which did not meet the requisite standard of “beyond any reasonable doubt.” In particular, the prosecutor argued that the conviction was based on the statement of the alleged victim in court, corroborated only by hearsay, that the victim in the immediate early stages of the police investigation did not claim the defendant had committed any crimes against her, and that her allegations against the defendant were evolving and increasing with time. The prosecutor noted that there was an absence of medical and physical evidence to support the conviction, and the police officers involved were not interviewed. The Supreme Court rejected the Request. The court first repudiated the notion that “beyond any reasonable doubt” was the requisite standard of proof under Kosovar law. It then noted that the hearsay was a direct confirmation that the victim had reported the rape to the witness. The tribunal dismissed the prosecutor’s argument that there was no physical evidence, because of the way the rape was committed – without physical violence as the victim surrendered under threat – it was meaningless to expect any trace of violence to be found. The court also saw no reason to discredit the victim on the basis that the victim only denounced the defendant one year after the commission of the rape, stating that it was “absolutely normal that a victim of rape finds the courage to denounce the aggressor only once the risk of revenge against the denouncer . . . has ceased.” Finally, the tribunal held that the defendant was investigated only at the end of the investigation against his associates, and that the details of the rape increased with time, were features common in many rape investigations and normally had no significance in the assessment of the evidence. (Also available in English.)
Ap.-Kz. 307/2012 Gjykata Supreme e Kosovës (Supreme Court of Kosovo) (2012)
The victim, a minor of the age of 15, was trafficked by men including defendants I.I. and Sh. G, from Albania to Kosovo, where she was imprisoned and forced to work as dancer at multiple restaurants. She eventually escaped and met two men who helped her find accommodations and work as a waitress. One of the men, S.B., had sexual intercourse with her, as did D.B., the manager who hired her as a waitress. I.I., Sh. G., and the men involved in the victim’s trafficking and employment were convicted of Trafficking in Persons contrary to Article 139 of the Criminal Code of Kosovo, and S.B. and D.B. were additionally convicted of Sexual Abuse of Persons under the Age of 16 contrary to Article 198. On appeal, the Supreme Court rejected the court of first instance’s ruling that the fact that the victim perceived I.I. as a person who had helped her was a mitigating circumstance, and agreed with the prosecutor that the punishment imposed on I.I. was very lenient, noting that I.I. had participated in the victim’s trafficking despite his awareness of the victim’s age and vulnerable situation, including her dependency on narcotics, presence alone in a foreign country, and lack of options to return home. The court accordingly increased I.I.’s sentence from one year to two years. The tribunal then dismissed Sh. G.’s argument that he was found guilty based only on the statement of the victim, holding that in the case of human trafficking, “it is the injured party who is the most reliable person.” The Supreme Court also agreed with the prosecutor that the punishment imposed on S.B. was very lenient, considering that he had intercourse with the victim, being aware of her age and vulnerable situation, and thus increased S.B.’s sentence from one year and one month to one year and six months. Finally, the court agreed with the prosecutor that the punishment imposed on D.B. was very lenient. The tribunal held that the trafficking of minors need not involve the use of force or violence, and that a conviction of sexual abuse of a minor could stand even if it was proven that it was done with the permission of the victim. The court accepted that the victim may have shown gratitude to D.B. for his assistance, but dismissed it as the “distorted perception” of a “vulnerable victim” and held that the gratitude did not change the criminal nature of the act or serve as an exculpatory circumstance. D.B.’s sentence was accordingly increased from two years to two years and four months. (Also available in English.)
Pml.-Kzz. Nr. 62/2013 Gjykata Supreme e Kosovës (Supreme Court of Kosovo) (2013)
The defendant was arrested for being suspected of touching a female police officer’s shoulder and trying to kiss her, and charged with Sexual Abuse by Abusing Position, Authority or Profession pursuant to Article 200 of the Criminal Code of Kosovo, and attempt to commit such an offense, among other crimes. The municipal court found the defendant guilty, and sentenced him to two years and four months of imprisonment and prohibition of public service for three years. The district court rejected the charge of Sexual Abuse by Abusing Position, Authority or Profession, and reduced the sentence to 12 months of imprisonment and prohibition of public service for two years. Thereafter, the defendant filed a Request for Protection of Legality against the lower courts’ decisions, arguing that the lower courts unlawfully convicted him of attempted Sexual Abuse by Abusing Position, Authority or Profession. The defendant argued that an attempt requires the offender to intentionally take immediate action toward the commission of the offense. Here, the commencing of the criminal offense was not proven because there was no action manifesting a sexual purpose behind his touching. The Supreme Court held the defendant’s claim was unfounded, pointing out that Article 200’s text states only “[w]hoever touches another person for a sexual purpose.” Here, the defendant not only touched the victim but also tried to kiss her, and was prevented from kissing her mouth only by the victim’s resistance. Hence, the defendant did not commit an attempt, but in fact completed the offense. The court, however, determined that the principle of reformatio in peius (prohibiting placing the appellant in a worse position after appeal) barred it from changing the lower courts’ qualification of the criminal offense. The court additionally rejected the defendant’s argument that the attempt in this case was not punishable, determining that an attempt to commit Sexual Abuse by Abusing Position, Authority or Profession was punishable under the Criminal Code. (Also available in English.)
PA-II-KZ-5/2014 Gjykata Supreme e Kosovës (Supreme Court of Kosovo) (2014)
The defendants, both Serbs and a police officer, were accused of forcibly abducting a Kosovar Albanian civilian female and raping her, thus committing the offense of War Crime Against the Civilian Population, in violation of Article 153 of the Criminal Code of Kosovo in addition to other offences. The court of first instance acquitted both defendants of war crimes, but the acquittal was annulled by the appellate court, which sentenced them to 10 and 12 years of imprisonment respectively. Both defendants appealed. The Supreme Court held that minor discrepancies of a witness’s statement should not be treated as discrediting. The tribunal found it proven that two Serbs did rape the victim, determined that the victim’s and witnesses’ statements were credible insofar as they did not relate to the identification of the suspects, and disagreed that the lack of medical report raised doubts that the rape occurred at all because such a report’s absence was well justified by the prevailing circumstance of an armed conflict. However, the court held that it had not been proven beyond any reasonable doubt, as required by law, that the defendants were the persons who committed the rape due to deficiencies in the suspect identification process. For example, the initial process had been carried out by the KLA MP years ago, and the court lacked evidence on how the process was carried out, the photos shown to the victim, and whether statements by the KLA blurred the victim’s memory. Subsequent identification was deficient because the defendants’ photos were obviously dissimilar from the other photos shown and the victim and witnesses thereby may have been guided in identifying the perpetrators. Further, the victim’s and witnesses’ description of the perpetrators were either general and not sufficient to conclude that the defendants were the perpetrators, or not sufficiently corroborated by other evidence. As a result, the tribunal granted the defendants’ appeal and acquitted the defendants. (Also available in Srpski and English.)
KI 155/17 Gjykata Kushtetuese (Constitutional Court) (2017)
The applicant was a judge on the Court of Appeals and was a candidate in the election for the President of the Court of Appeals. She received the highest number of points among the three candidates in the candidate evaluation commissioned by the Kosovo Judicial Council (KJC, the body which administers the judiciary). During the voting by the KJC, the applicant was voted on first, but did not receive the necessary majority of votes. The voting then moved on to the second-ranked candidate, who won the overwhelming share of votes and was elected. Upon losing, the applicant submitted a referral to the Constitutional Court, alleging various constitutional violations, including violation of the principle of gender equality under Article 24 (Equality before the Law) of the Constitution of Kosovo. The KJC responded that the principle of gender equality consisted of equal treatment of every candidate using the same standards, and that it had done so irrespective of the candidates’ gender or ethnic background. The Constitutional Court noted that Article 24 of the Constitution implies that general principles of equality of treatment apply to all actions of public authorities in their dealings with individuals. The tribunal explained that in a voting process, a fundamental aspect of the principle of equality is that each candidate shall benefit from the opportunity to be considered fairly and equally. The panel then held that the KJC’s vote did not provide equal opportunities to the candidates, because it did not provide for procedural safeguards pertinent to the guarantee of equality of treatment. Each candidate was voted on in succession, and so KJC members could vote in favor or against all three candidates. Members could also abstain from the voting selectively and arbitrarily. Thus, it was impossible to know which candidate actually had the support of the majority of the KJC. The court therefore declared the vote incompatible with the Constitution, and ordered the KJC to conduct a new vote. (Also available in Srpski and English.)
KI 52/12 Gjykata Kushtetuese (Constitutional Court) (2013)
The applicant (wife), her husband, and their children lived in Austria and held dual Austrian and Kosovar citizenship. After marriage problems arose between the couple, the husband took the children away from the wife while they were in Kosovo and kept them away from her. The husband’s family wanted to resolve the matter according to Albanian tradition, causing the wife to fear that the children would stay with the father. She thus initiated legal proceedings for the children’s return to Austria. Pursuant to The Hague Convention on the Civil Aspects of International Children Abduction, the Austrian Ministry of Justice requested the Kosovar Ministry of Justice to assist in the children’s return, and the Kosovar authorities initiated proceedings in the country’s courts for such an order. The District Court held hearings in the presence of the husband but without the wife or prosecutor, and ruled for the husband, finding that no abduction had taken place. The Supreme Court quashed the decision and remanded the case for retrial. Following retrial, the District Court again ruled that, under The Hague Convention, returning the children was unnecessary, as it would have a negative impact on the children because they had developed a strong emotional bond with their father, they were attending school in Kosovo, and the couple had marital problems. The Supreme Court affirmed, finding the return of the children might cause them psychological damage. The wife then filed a request for repetition of procedure, arguing that she and the prosecutor were not given the opportunity to participate in the session in which the District Court reviewed the request to return the children. The Supreme Court rejected the request, stating that the procedural parties were the Ministry of Justice and the husband, not the wife, and that the participation of the prosecutor was not legally obligatory. The wife appealed to the Constitutional Court, alleging that her rights guaranteed under Article 31 of the Constitution of Kosovo (Right to Fair and Impartial Trial), and under Article 6 (Right to Fair Trial) of the European Convention on Human Rights and Fundamental Freedoms, had been violated. The Constitutional Court held that by not being present at the session, the wife was unable to refute her husband and was deprived of the possibility of convincing the District Court that the children should be returned. The wife was thus placed at a substantial disadvantage vis-à-vis her opponent, in violation of the principle of equality of arms, which is one aspect of the right to fair trial under European Court of Human Rights case law. Finding the wife’s right to a fair trial violated, the Constitutional Court accordingly invalidated the Supreme Court’s decisions and ordered the District Court to repeat the proceedings and invite the wife to participate. (Also available in Srpski, English, and Türkçe.)
KI 123/13 Gjykata Kushtetuese (Constitutional Court) (2014)
The applicant (former husband) and his former wife purchased an apartment during their marriage, with the applicant’s father contributing to the purchase as well. The parties concluded an agreement stipulating that, in case of dispute, the parties agreed that the ownership of the apartment would be divided based on each party’s investment. After their divorce, the applicant filed a claim for the division of the property. The Municipal Court rejected the claim and, deeming the applicant’s father’s contribution to be an assistance to both spouses, ruled that the applicant and his former wife were co-owners, each owning half of the property. On appeal, the District Court quashed the Municipal Court’s decision and remanded, but the Municipal Court on remand reached the same decision (i.e., applicant and former wife each owned one-half of the property). The District Court then amended the Municipal Court’s judgment and ruled that the applicant owned 85.48% of the apartment, and his former wife 14.52%, according to their agreement. The applicant then litigated to execute the District Court’s judgment. The former wife filed a request for a revision with the Supreme Court, which granted the request and upheld the Municipal Court’s judgment, holding that the apartment was an asset created during the marital union, and the parties by law could not contract to the detriment of common assets acquired in marriage. The applicant appealed to the Constitutional Court, alleging violation of his right to the protection of property and right to a fair trial under the Constitution of Kosovo and the European Convention on Human Rights. The Constitutional Court emphasized that its task was not to act as a court of fourth instance or to deal with errors of fact or law unless it may have infringed on constitutional rights. The Supreme Court’s reasoning was clear and the proceedings below had not been unfair or arbitrary. Therefore, the Constitutional Court ruled inadmissible the applicant’s appeal from the Supreme Court’s judgment. (Also available in Srpski and English.)
KO 13/15 Gjykata Kushtetuese (Constitutional Court) (2015)
The applicant, President of the Assembly of the Republic of Kosovo, referred to the Constitutional Court an amendment to the Constitution proposed by numerous deputies, and requested the court to make a prior assessment whether the proposed amendment diminishes any rights or freedoms under the Constitution. The amendment stipulates that no gender can be represented less than 40% in the positions of ministers and deputy ministers in the government. The proponents argued that a gender quota was needed because women represented no more than 10-15% in ministerial positions and the Law on Gender Equality had not been implemented. The Constitutional Court noted that the principle of gender equality was already included in many provisions of the Constitution and held that the introduction of gender-based quota to ministerial and deputy ministerial positions narrows the applicability of the constitutional safeguards for gender equality and diminishes the rights to gender-balanced participation in public bodies. The court further expressed concern that the proposed amendment may diminish the rights of deputies or qualified persons – from whom ministers are nominated – to become part of the government, and cited case law from the European Court of Justice and the French Constitutional Council against gender quota in government positions. In the court’s opinion, the principle of equal opportunity for both women and men should be applied instead, and positive discrimination whereby preference is automatically and unconditionally granted to a gender, notwithstanding the requirement of professional merit, is not supported by constitutional practice. The court also observed that the proponents of the amendment have not submitted any supporting evidence showing that the current constitutional safeguards of gender equality are insufficient. The implementation of the Law on Gender Equality is the responsibility of the government, controlled by the Assembly. For these reasons, the Constitutional Court concluded that the proposed amendment diminished constitutional rights and was therefore unconstitutional. (Also available in Srpski and English.)
KI 82/16 Gjykata Kushtetuese (Constitutional Court) (2017)
The applicant, a local employee of the UN mission in Kosovo, was arrested and charged with various criminal offenses, including facilitating or compelling prostitution (Article 241 of the Criminal Code of Kosovo). The Basic Court found him guilty and sentenced him to 14 years imprisonment. The Court of Appeal affirmed the guilty verdict. The applicant filed a request for protection of legality with the Supreme Court, which rejected the request. The applicant then submitted a referral to the Constitutional Court, alleging, among other things, that he was discriminated against on the grounds of gender in violation of Article 24 of the Constitution because the trial court found credible the statement of a victim and a witness because they were women. The Constitutional Court explained that, in the applicant’s circumstance, equality before the law should be understood as a right of a party to impartial treatment and equal opportunity to exhaust legal remedies despite personal status. Under European Court of Human Rights case law interpreting Article 14 of the European Convention on Human Rights, treatment is discriminatory if it has no objective and reasonable justification – that is, if it does not pursue a legitimate aim, or there is not a reasonable relationship of proportionality between the means and aim. The court dismissed the applicant’s allegation of gender discrimination as “manifestly ill-founded,” finding that he failed to prove how and why the trial court treated him in an unequal way in relation to the victim and witness at issue, only because they were women. The tribunal rejected the applicant’s other claims and concluded that he had not substantiated his allegations of a violation of the fundamental human rights and freedoms guaranteed by the Constitution. Therefore, the applicant’s referral was declared inadmissible. (Also available in Srpski and English.)
KI 41/12 Gjykata Kushtetuese (Constitutional Court) (2013)
The deceased victim D.K. met her partner A.J. in secondary school, formed a union with him, and gave birth to a daughter. D.K. subsequently filed a claim to dissolve the union and for child custody at the Municipal Court because of a deterioration in her relationship with A.J. She also took their daughter to live with her parents. Following continuous threats by A.J., D.K. submitted a request to the Municipal Court for an emergency protection order under the Law on Protection from Domestic Violence. The court did not act within the statutorily mandated 24 hours of the request, and A.J. shot and killed D.K. several weeks later. The Kosovo Judicial Council (“KLJ”, the body which administers the judiciary) disciplinary committee issued a decision to discipline the responsible Municipal Court judge in response to a request by the Office of the Disciplinary Counsel, but D.K.’s parents were not party to the disciplinary proceedings. D.K.’s parents submitted a referral to the Constitutional Court, alleging the Municipal Court by its inaction violated D.K.’s rights under the Constitution of Kosovo, including Article 25 (Right to Life), Article 32 (Right to Legal Remedies), and Article 54 (Judicial Protection of Rights), as well as under the European Convention on Human Rights (“ECHR”), including Article 2 (Right to Life) and Article 13 (Right to Effective Remedy). The Constitutional Court observed that ECHR caselaw stresses that it is the duty of state authorities to take appropriate steps to safeguard the lives of those within its jurisdiction. This includes a positive obligation on the authorities to take preventive measures to (i) protect one whose life is at risk from another, (ii) where the authorities knew or ought to have known of the existence of a real and immediate risk to the life of an identified individual from a criminal offense, but (iii) failed to take measures which reasonably might have been expected to avoid the risk. The court found the Municipal Court ought to have known about the real risk in existence when D.K. requested the emergency protection order since she had explained the deterioration of her relationship with A.J., specifically his death threats and her reports to the police. Furthermore, the Municipal Court was handling D.K.’s case for the dissolution of union and child custody. Accordingly, the tribunal concluded that the Municipal Court was responsible for acting under the Law on Protection from Domestic Violence and that its inaction was a violation of Article 25 of the Constitution and Article 2 of the ECHR. The court also found that the Law on Protection from Domestic Violence and the statute governing the judiciary do not offer effective legal remedies for the protection of the applicants’ rights, because the former does not contain measures for addressing court inaction, and the latter does not allow the applicants to participate in any disciplinary investigation or procedure. Thus, the inaction of the Municipal Court and the KJC’s practice of not addressing judicial inaction violated the deceased’s and applicants’ right under Articles 32 and 54 of the Constitution and Article 13 of the ECHR. (Also available in Srpski and English.)
KI 108/18 Gjykata Kushtetuese (Constitutional Court) (2018)
The applicant was registered as female at birth, but has always identified himself as male. He lived and appeared as a man in all areas of life, and had begun hormonal treatment to transition. The applicant filed a request with the Civil Status Office to change his name and gender marker to reflect his male gender identity, but the request was rejected. He appealed the decision to the Civil Registration Agency, which rejected the appeal on the grounds that the applicant provided no evidence that his current name prevented his integration in society, and no medical report supporting his request for a change of his gender marker. The applicant filed a claim with the Basic Court, and, only one week later and before a decision was rendered, referred the matter to the Constitutional Court. The applicant alleged the Civil Registration Agency’s decision violated his fundamental rights and freedoms, guaranteed by Articles 23 (Human Dignity), 24 (Equality Before the Law), and 36 (Right to Privacy) of the Constitution of Kosovo, and Article 8 (Right to Respect for Private and Family Life) of the European Convention on Human Rights. The applicant requested to be exempted from the legal obligation to exhaust all legal remedies before seeking a constitutional review on the grounds that the regular courts’ legal remedy would not be effective or sufficiently certain because of his special circumstances and the length of the proceedings. The Constitutional Court surveyed foreign constitutional courts via the Venice Commission for their respective relevant case law, confirming the general requirement for an applicant to exhaust his/her legal remedies before seeking constitutional review. The court noted the existence of a very similar and recently decided case, in which a person sued the Civil Status Office and Civil Registration Agency for their refusal to grant his request to change his name and gender marker from female to male after a successful gender reassignment surgery. The Basic Court ruled for the applicant and ordered the changes made, and the decision was upheld by the Court of Appeals. The Constitutional Court therefore determined that the regular courts could furnish an effective and sufficiently certain legal remedy for the applicant. Moreover, the court noted that the applicant was not seeking review of an already lengthy court proceeding, but merely of the possibility of one, and in any event the Basic Court and Court of Appeals disposed of the above mentioned precedent in reasonable time. Accordingly, the Constitutional Court ruled the applicant’s referral inadmissible because it was premature. (Also available in Srpski and English.)