Implementation of the Anti-discrimination Law in Kosovo: A Plan in Need of Execution

31 January 2006

By Gregory Fabian¹

Introduction

In March 2003, the Office of the Prime Minister of the Government of Kosovo committed itself to the promulgation of a comprehensive anti-discrimination law by forming a Drafting Group of legal experts from Kosovo, organized by the Office of Legal Support Services within the Office of the Prime Minister. The Drafting Group was assisted in its work by representatives of the Human Rights Department of the OSCE Mission in Kosovo (OMiK) and the Advisory Office on Good Governance within the Office of the Prime Minister, with the support of the Office for Returns and Communities and the Office of the Legal Advisor to the SRSG within the United Nations Interim Mission to Kosovo (UNMIK). The Group set out to draft an anti-discrimination law which would conform to European Union standards, in compliance with Section 5.7 of the Constitutional Framework of Kosovo which requires that "The Provisional Institutions of Self-Government shall be responsible for aligning their legislation and practices in all areas of responsibility with relevant European and international standards and norms, with a particular view to facilitating closer economic, social, and other ties between the people of Kosovo and other Europeans, and in awareness of that respect for such standards and norms will be central for the development of relations with the Euro- Atlantic community." The draft anti-discrimination law which was produced served three basic functions. First, it consolidated and strengthened existing law on discrimination by conforming it to international and European anti-discrimination laws and standards. Second, it promoted uniformity in the adjudication of a variety of forms of discrimination, including equality in the field of employment, in access to social and public services, education, housing, social security, supplies of goods and services, housing, etc. for a variety of vulnerable groups including ethnic, religious and linguistic minorities, women and children, the mentally and physically disabled, internallydisplaced persons, etc. Finally, it provided effective legal remedies for victims of most forms of discrimination, and effective, proportionate, and dissuasive sanctions to address violations.

Enactment of the Anti-discrimination Law

On 19 September 2004 the Anti-discrimination Law as adopted by the Assembly of Kosovo (ADL) entered into force after its promulgation by the Special Representative to the Secretary General on 20 August 2004.² The ADL substantially complies with the European Union's Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (RED), and Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation prohibiting discrimination on the grounds of religion or belief, disability, age or sexual orientation (FED).

The Kosovo Government, though, has significantly expanded the scope of the ADL from the protection afforded in the RED and FED. For example, while the RED prohibits direct or indirect discrimination based on racial or ethnic origin, Article 2 of the ADL prohibits direct or indirect discrimination based on any ground. Second, while the RED is limited in the scope of the rights which are protected, Article 4 of the ADL prohibits direct or indirect discrimination in access to and enjoyment of any right set forth by law.

In particular, certain additional rights specified under Article 4 which are particularly important to the Roma, Ashkali and Egyptian communities in Kosovo include fair treatment before tribunals and all other organs administering justice, personal security, participation in public affairs including the right to vote and be voted for, and access to public places.

The ADL is also unique in two aspects which, while they are important for all persons, will be particularly important for the Roma, Ashkali and Egyptian communities in Kosovo. First, the ADL provides that segregation as defined in Article 3(f) shall be deemed to be discrimination in violation of the principle of equal treatment as defined in Article 2(a). Second the ADL provides in Article 9.4 that all monies collected through the imposition of penalties on those who have violated the Law shall be placed in a fund for the purposes of supplying free legal assistance to any natural or legal person whose right to equal treatment is violated.

The Status of Implementation Measures

On 8 December 2004, the Office of the Prime Minister and OSCE Mission in Kosovo Human Rights Department Non-discrimination Section conducted an Anti-discrimination Law Workshop in which government representatives, members of civil society, and members of the international community participated. The Workshop was conducted by the Office of the Prime Minister as a measure of compliance with Article 13.2 of the ADL which requires that the Government conduct a public awareness programme with regard to the ADL. The Workshop also received electronic and print media coverage within Kosovo.

The Workshop was aimed at identifying the needs for creation of relevant by-laws required for an effective implementation of the ADL in Kosovo as stipulated in Article 12.3 of ADL.

In addition to plenary sessions, the Workshop included Working Group Sessions in which the participants provided recommendations on the following subjects:

Working Group 1 – Responsible Actors for Implementation of ADL and Future Steps Advisory Office on Good Governance of the Office of the Prime Minister (AOGG), OSCE and Office of the High Commissioner for Human Rights in Kosovo, moderators

Working Group 2 – Procedure of Claims for Discrimination Cases Office of the Prime Minister and OSCE, co- moderators

Working Group 3 – Strategies on information campaigns for promotion of the ADL Council for the Defense of Human Rights and Freedoms (Kosovan NGO) and OSCE, co-moderators.

Seminar on the Kosovo Anti – discrimination Law for Judges and Lawyers

On 7 and 8 February 2005, the Kosovo Judicial Institute in collaboration with the OSCE Mission in Kosovo Human Rights and Democratisation Departments sponsored a seminar on the Kosovo Anti discrimination Law for Kosovan judges and lawyers. The presenters included a Judge from the Bulgarian Court of Cassation who spoke about the challenges to implementing the new comprehensive anti-discrimination law in Bulgaria which is based upon the RED. The seminar included group work by the participants on case studies to illustrate the application of various provisions of the ADL to fact patterns.³

Among the materials distributed to the participants was a document entitled "Handbook on Recognising Discrimination under the Kosovo Antidiscrimination Law." The Handbook, while it is targeted at the general public, was well received for its general information value by the participating judges and lawyers. It was authored by Jean Garland, former Legal Director at the ERRC, who was hired as a consultant by the OSCE Mission in Kosovo's Democratisation Department to draft the Handbook.

Governmental Caveat on ADL Workshop Recommendations

The Government of Kosovo has stipulated that due to the complexity of recommendations which the Working Groups in the ADL Workshop produced, the necessary level of involvement of governmental actors, and budget implications, the following recommendations shall be approved by the Office of the Prime Minister prior to implementation:

General Recommendations (All Groups) regarding ADL Implementation

General Recommendations from all Working Groups were as follows:

1. An Anti-discrimination Law Implementation Working Group should be established and should meet at least once every two weeks in order to develop a Comprehensive Implementation Plan (CIP) which would implement the following recommendations, and take other measures to implement the ADL as needed. Most importantly, the Working Group should coordinate the efforts of all actors in the implementation process.

2. The structure of the CIP cannot be monolithic. Working Group members should represent and serve as focal points for all parts of society to ensure comprehensive implementation. For example focal points should be established among governmental actors representing various aspects of the executive, legislative and judicial branches, b. members of civil society; c. representatives of the private sector; d. members of Kosovo's various ethnic communities, e. labor unions, and f. any other interested parties.

3. It will be necessary to create a framework which coordinates all possible means available to claimants to enforce the ADL e.g. the courts, any available mediation services, Communities and Mediation Committees, free legal services offered by NGOs, legal aid services in general, etc.

4. The unit within the AOGG, which would lead the implementation of the ADL workshop recommendations, should be strengthened with additional human resources to enable an effective accomplishment of the recommendations.

Specific Recommendations of Each Working Group

Working Group 1 - Responsible actors for implementation of ADL and future steps

The following groups were considered to be key actors in the ADL implementation process:

1. Department of Justice (DOJ) – the DOJ is conducting a review of the implications of the ADL and its effect on the justice system. Its proposed Civil Rights Unit will serve a prosecutorial function and will primarily be concerned with discrimination claims regarding civil and political rights but claims regarding economic and social rights also could be a focus of its work (to be determined).

2. Administrative bodies – there will be a training requirement for appropriate representatives of municipal departments and ministries who will be in charge of the implementation of the ADL within the policies and procedures of all levels of government. Training should stress the practical application of the provisions of the ADL to complaints filed by a. governmental employees and b. users of public services (i.e. the general public).

3. Judicial bodies – The judiciary will be a primary actor in the implementation of the ADL. Its importance in ensuring that the enforcement mechanisms within the ADL are accessible to all people in Kosovo cannot be overstated. In turn, training of the judiciary as to how to apply the ADL within the legal system in Kosovo will be essential. (See also recommendation on the Kosovo Judicial Institute below).

4. The appropriate branches of government within the Provisional Institutions for Self-Government (PISG) shall have multiple responsibilities in the implementation of the ADL including but not limited to: a. ensuring that judicial and/or administrative procedures are available and that rules on sanctions are laid down, b. ensuring that organisations can institute or support actions on behalf of a claimant or claimants with their consent, and by protecting persons against victimization, c. taking measures to share the burden of proof, e.g. developing means to establish direct and indirect discrimination such as situation testing, scientific studies, and samples, d. disseminating information on existing antidiscrimination law and providing training to civil servants on the ADL, e. developing specialised bodies for the promotion of equal treatment, f. establishing policy and procedures to provide for positive action in the case of vulnerable or disadvantaged groups, g. establishing a dialogue among stakeholders (e.g. social partners, NGOs, the two sides of industry, etc) in order to foster equal treatment. h. the abolishment of provisions contrary to the principle of equal treatment in existing legislation, rules governing profit-making and non-profit-making associations, collective agreements, contracts, etc.⁴

5. NGOs under Article 7.6 of ADL can institute or support legal actions on behalf of a claimant or claimants for the enforcement of obligations under the ADL. Further they will serve an importance function in disseminating information to rights holders regarding the protections that the ADL affords. They also can form a partnership with government (while maintaining their independence) to implement and enforce the ADL.

6. While it does not provide free legal services, the Ombudsperson Institution will serve an important function in investigating claims of discrimination, gathering information to identify systemic discrimination, and in the performance of other parts of its mandate in order to implement and enforce the ADL.

7. The Kosovo Judicial Institute will be a key player in providing training to judges and lawyers on the application of the ADL to claims of discrimination. Additionally, it can play a key role in coordinating and standardizing any training activities sponsored by other international agencies or professional organizations within the legal community, e.g. the Kosovo Chamber of Advocates.

8. The Kosovo Chamber of Advocates will also play a key role in facilitating and/or providing continuing legal education to lawyers on the application of the ADL in terms of both its substantive and procedural provisions.
Working Group 2 - Procedure of claims for discrimination cases

1. According to members of the legal community who were in attendance, administrative procedures under the applicable law are in place and will facilitate the adjudication of claims of discrimination under the Anti-discrimination Law (ADL) made against public actors. The procedure for the adjudication of claims against private actors, though, in the private sector must be resolved. A thorough evaluation of procedures for both civil and criminal cases must be undertaken to determine they are effective in allowing for the application of the provisions of the ADL to complaints of discrimination.

2. Judges and lawyers must be trained as to the application of the ADL and particularly on the jurisprudence of the European Court of Justice and its application to complaints of discrimination, as well as other international and domestic anti-discrimination legal provisions.

3. A needs assessment must be done in order to determine the nature and scope of training for judges and lawyers. It was noted that there is a particular need to train newly appointed judges. KJI should spearhead the effort in association with international agencies such as Department of Justice, OHCHR, etc.

4. All relevant actors who are involved in the implementation of the ADL must draw up an implementation plan which coordinates the role of all players. Further, the Office of the Prime Minister should spearhead this effort, and international agencies and members of civil society should also participate in the implementation plan.

5. Once a strategic implementation plan is drawn up a budget should be established to support it and the budget should be established as a line item within the Kosovo Consolidated Budget.

6. The issue of whether specialised regional tribunals are needed to hear claims of discrimination as opposed to their adjudication in the ordinary courts must be resolved. The representatives of the legal community in Kosovo believed the ordinary courts would suffice while the representatives of the Department of Justice believed such tribunals should be considered. It was a concern that given the comprehensive nature of the ADL, the potential number of discrimination cases and the number of persons from the courts and the legal community involved in is implementation should be considered before making any decision on this matter.

7. A policy framework for first and second instance bodies who will decide on discrimination claims (e.g. representatives of municipal departments and ministries who will decide on claims) must be developed so that all governmental policies and procedures will be ADL-compliant and the representatives must be trained as how to apply the ADL in their decisions on claims.

8. Legal commentaries will have to be drafted by scholars within the judiciary and the legal community as a whole in order to clarify and amplify both the substantive and procedural aspects of the ADL provisions within the Kosovo legal system. For example, a commentary should be written to clarify what constitutes "facts from which it may be presumed that there has been direct or indirect discrimination" under Article 8.1 re: the shifting of the burden of proof.

9. Re: Bodies for the Promotion of Equal Treatment The potential list of bodies that may receive, investigate or otherwise deal with discrimination complaints must be established. Further while the concept of an Equal Treatment Center was eliminated from the final draft of the ADL, a comprehensive framework must be established to coordinate the work of all bodies who may be involved to any extent in the resolution of complaints of discrimination such as courts, mediation bodies, Communities Committees, the Ombudsperson Institution, etc.

10. A comprehensive list of functions which must be performed by bodies who promote equal treatment must be drawn up (e.g. providing free legal assistance, mediation services, etc.) and a framework must be established to determine their inter-relationship.

11. The proposed Civil Rights Unit within the Department of Justice can provide access to justice for vulnerable groups. The Unit would serve a prosecutorial function regarding claims of discrimination.

12. Policy guidelines for the formation of specialised bodies to promote equal treatment should be employed in order to formulate a cohesive framework for such bodies which serves to coordinate their individual functions. ECRI's General Policy Recommendation No. 2 – specialised bodies to combat racism, xenophobia, anti-Semitism and intolerance at national level as well as various publications which summarise country practices coordinating the work of such specialized bodies.⁵

Working Group 3 – Strategies on information campaigns for promotion of ADL

1. The overall information strategy for promotion of the ADL should be drafted. The strategy should include, but not be limited to, the following recommendations.

2. All of the persons within the public institutions responsible for the implementation and enforcement of the ADL shall be identified and trained. Due to a large number of persons targeted with the training, the training of trainers from relevant institutions should be organized. As a result, the trainers shall conduct the training in their respective institutions.

3. The Information Coordination Body (ICB) responsible for coordination of all the ADL public information efforts should be created. This Body could be a part of the bodies mentioned in the recommendations of the Working Group 2. The ICB as a central institution should have its representation at the municipal level. Both central and municipal ICBs could be composed from civil servants and members of civil society.

4. The information campaign shall be curried out using all existing media in Kosovo (TVs, radios, newspapers) at the central and local levels. Additionally, it should also includes series of debates, seminars, roundtables, lectures and cultural activities at central and local levels conducted by public institutions and civil society.

5. Therefore, there is a need for the production of professional TV and radio spots on the ADL. Also, the ADL should be published and the ADL manual, explaining how to use the ADL to fight discrimination, should be created. Furthermore, the information posters and leaflets should be produced and disseminated throughout Kosovo. The worth of consideration is the creation of a web page devoted for the ADL. This website could be a sub-site of the OPM website and it could include the ADL in all available languages, promotion materials and information on the events connected to the ADL information campaign.

6. The Ministry of Education, Science and Technology should include the Nondiscrimination issues into the educational curricula.

7. All information materials should be produced in all languages spoken in Kosovo, including the sign languages and the Braille's alphabet. The materials should be adjusted for the particular target groups. Also, special attention shall be paid to target the private sector.

8. The budget for above activities shall be identified and allocated.

9. Civil society, including the youth groups, should be involved at each stage of the information campaign.

Conclusion

In May 2005, the OMiK Human Rights Department's Non-discrimination Section drafted a document entitled "Anti-discrimination Law Comprehensive Implementation Action Plan." The Government's execution of such a plan will be crucial to the successful implementation of the ADL.

As of the time of the drafting of this article, the Office of the Prime Minister is working on a draft Administrative Instruction to provide a structure for implementation of the Anti-discrimination Law. The Instruction is intended to provide practical rules, and physical facilities for dealing with discrimination complaints, to provide independent legal assistance during case review, to collect information and create independent surveys regarding discrimination, to publish independent reports and provide recommendations on any matter related to discrimination, and generally to provide protection for any complainant regarding any form of discrimination.

The Anti-discrimination Law in Kosovo is, in a de jure sense, probably one of the most progressive anti-discrimination laws in Europe if not the world, and the Government and the Assembly of Kosovo should be recognized for their accomplishments. But promulgation of the Law is only one of three steps which the Government must take in the process of promoting equality and combating discrimination. The other two steps are first of all to inform the people of the availability of the ADL as a tool to protect them against discrimination and to empower them to use it, and secondly to empower the judiciary and the legal community as a whole to use the law on behalf of the people they serve.

Further, it is essential that the principle of equal treatment is imbedded in the policies and procedures of all branches of government, and that the ADL protections are made available to both employees and beneficiaries of all branches of government. These steps require the government to provide information and training on the ADL to both rights-holders in society and duty-bearers in government.

To date, there have been no cases adjudicated under the ADL despite its entry into force on 19 September 2004. This is a serious concern, particularly considering the daily discrimination suffered by members of vulnerable and disadvantaged groups such as the Roma, Ashkaelia, and Egyptian Communities in Kosovo and others.

The implementation of the ADL provides an important opportunity for the Government of Kosovo to demonstrate its democratic development and its ability to govern. More importantly, it provides the people of Kosovo with a most effective de jure remedy to protect them against discrimination in all its forms. But ultimately the Government will be judged by two indicators regarding the ADL, the extent to which the government implements it, and the extent to which all people and especially those who are most vulnerable are able to avail themselves of its protections.

Thus the Government of Kosovo will not be judged by the quality of the ADL in a de jure sense and its plan for implementing it. Rather it will be judged by the extent to which the plan is executed and the extent to which the ADL becomes an effective remedy in a de facto sense for all in Kosovo, and especially for those who are most vulnerable, such as members of the Roma, Ashkali and Egyptian communities.

Endnotes:

1. The author was formerly a Human Rights Training Coordinator in the Human Rights Department of the OSCE Mission in Kosovo (OMiK) from January 2000 until November 2001, when he was named Senior Legal Advisor on Non discrimination within the Human Rights Department in OMiK. He served in that capacity until January 2004. In early 2003, he was invited by the Prime Minister of Kosovo to be a member of the Governmental drafting team charged with drafting the Anti- Discrimination Law. In April 2004, he joined the OSCE Mission to Bosnia and Herzegovina as Legal Advisor on Economic and Social Rights in the Human Rights Department. The views expressed in this article are his own.
2. United Nations Interim Administrative Mission in Kosovo (UNMIK) Regulation No. 2004/32 of 20 August 2004 On the Promulgation of the Anti discrimination Law adopted by the Assembly of Kosovo.
3. At the invitation of the organizers, the author participated as a presenter and a working group moderator at both the Anti-discrimination Law Workshop and the Seminar on the Kosovo Antidiscrimination Law.
4. See Jan Niessen, Making the Law Work: The Enforcement and Implementation of Anti-discrimination Legislation, paper presented at the Danish EU Presidency Conference on the Implementation of the Antidiscrimination Directives into National Law, Copenhagen, 14-15 November 2002.
5. See for example, PBLS Ramboll Management, Specialised bodies to promote equality and/or combat discrimination, Final Report, Executive Summary, May 2002, http://www.pls-ramboll.com. This paper was drawn up on behalf of the European Commission.