5 March 2008

Mr. Hajredin Kuçi
Deputy Prime Minister
Chairman of the Constitutional Commission of Republic of Kosovo
The Secretariat of the Constitutional Working Group
Government of Kosovo
New Building, 8th floor, Office No. 803
Skenderbeg Square
10000 Pristina, Kosovo
e-mail: info@kushtetutakosoves.info

Mr. Joachim Rücker
Special Representative of the Secretary General
UNMIK
Apg street
10000 Pristina, Kosovo
e-mail: ruecker@un.org

Mr. Pieter Feith
EU Special Representative
International Civilian Office
St. Ahmet Krasniqi PN
10000 Pristina, Kosovo
e-mail: office@ico-kos.org

Mr. Yves de Kermabon
Head of the EULEX
c/o EUPT Kosovo 2007
St. Mbreteresha Teuta 21, Tauk Bahqe
P.O. Box: 268
10000 Pristina, Kosovo
e-mail: info@eupt-kosovo.eu

Comments on Kosovo draft constitution

Dear Sirs,

We are writing to you in order to express our concerns regarding the draft constitution which was prepared by the Constitutional Commission on the basis of the provisions included in the proposal of the UN Special Envoy for Kosovo. Indeed, we consider that this document does not provide sufficient guarantees for the Kosovo Roma and may lead to their further alienation.

Our concerns relate in particular to the following issues:

–         the status of the Roma community in Kosovo and citizenship issues;

–         the status of the Romani language and related rights;

–         representation within public institutions;

–         political representation.

In addition to these specific concerns, we have also some general concerns as regards to the rights of communities, human rights and anti-discrimination. We further believe that the Kosovo constitution should include a section on the rights of the displaced.

The status of the Roma community and citzenship issues

We notice with concern that the document is very much unclear as regards to the constituency it applies to. Indeed, several terms are used in parallel throughout the document such as “people”, “inhabitants”, “citizens”, and “individuals”, etc., without making it ever clear who is actually meant, and whether the categories are identical.

We would recommend the constitution to include an explicit reference to all the people of Kosovo on the example of the constitution of neighbouring Macedonia and are actually surprised to find out that this constitution is not mentioned among the many constitutions mentioned on the website of the Constitutional Commission as a reference.

Regarding citizenship we believe that article 155.2 which reserves Kosovo citizenship to persons legally residing in Kosovo on 1.1.1998 should be modified in order to avoid that persons who left Kosovo before that date loose their rights and become stateless. This is of particular importance with regards to the fact that the Kosovo government has just adopted policies for the readmission and reintegration of several ten thousands of forced returnees after independence of whom many have left Kosovo more than ten years ago. It would be outmost ironic if after their forced repatriation they find themselves in a country where they don’t have no rights.

We understand that a law on citizenship has already been adopted by the Kosovo Assembly and hope that it includes flexible criteria for the access to citizenship in order to accommodate to the situation of those who moved to Kosovo from other parts of the former Yugoslavia as it has been done in other parts of the region.

The status of the Romani language

We are worried about the unclear status of the Romani language which is considered as an “official language at municipal level” or “language in official use” as opposed to Serbian and Albanian languages which are considered as the official languages of Kosovo. This has indeed far-reaching consequences on the possibilities to receive education in Romani language and to use this language in communication with public institutions (see art. 59).

A recent survey by the Humanitarian Law Center showed that even now the provisions included in article 4.4. of the Constitutional Framework for Provisional Self-Government and the Law on the use of language are not properly implemented as regards to the Romani language. According to this survey, “[e]ducation in Roma language has not been organized either in schools under the Kosovo MONT jurisdiction or in schools under the jurisdiction of the Serbian Government Ministry of Education.”

We are very much worried that the right to receive education in Romani language, which is to be regulated by law, will be undermined by the introduction of excessively strict thresholds and ask for a maximum flexibility on this issue taking into consideration that the Roma population in Kosovo has been strongly decimated by war and ethnic cleansing. In our opinion, the Kosovo authorities should do their utmost to accommodate parents’ demands.

The same considerations also apply as regards to the possibility to use the Romani language in communication with public institutions. We do not see any legitimate reason why this right should be limited to the municipal level. Since the Kosovo government has actually committed itself to assure an equitable representation of all communities within public administration, the parallel use of different languages should not constitute a particular problem, especially not at central level.

We notice that the draft includes some guarantees for the Kosovo Serb community such as to have a Kosovo-wide TV channel. The same guarantees should also be provided to Kosovo’s smaller minorities, in particular the Roma, whose community is scattered throughout Kosovo’s territory. The conditions of access to public broadcasters need to be specified.

Representation of Roma within public institutions

Article 61 foresees an equitable representation of the members of communities within the staff of public institutions. In the next sentence it is then emphasised, that the rules concerning competence and integrity need to be respected.

We would first like to point out to the principle of equality before the Law which implies that the principle of integrity should be valid for any person holding an official post, no matter which community s/he belongs to, and that the application of this principle should be transparent with the possibility for people who feel themselves victims of an unfair decision to appeal.

We are further concerned that the insistence on competence might be used in order to exclude Roma from higher positions and recommend it to be replaced by another clause outlining how an equitable representation of persons belonging to socially disadvantaged groups will be achieved. This would only be consistent with article 44.3. and article 58.4 which establish the possibility of introducing measures aimed to counteract the effects of discrimination and social exclusion. We would like to underline that Roma and other non-Albanian communities are grossly underrepresented within Kosovo’s public institutions today.

We would like to remind that the right to effective participation of minorities in public life which includes their representation within public institutions constitutes an internationally recognized human rights principle and is enshrined in the UN Declaration on Minorities, the CoE Framework Convention for the Protection of National Minorities, and in the Document of the Copenhagen Meeting on the Human Dimension of the OSCE.

Political representation

We believe that the political representation of Roma should be considerably enhanced taking into account pre-war figures from which it goes out that Roma constituted the third largest community in Kosovo. Roma should have guaranteed seats in the government and parliament and have their representatives in all public bodies, in particular in those, dealing with social, economic and political issues, including human rights and anti-discrimination, such as the Office of the Ombudsperson, and in those aimed at the safeguard of public security.

Taking into consideration the ethnic division in Kosovo’s society, we believe that any important decision including appointments to public functions should be taken on the basis of a qualified majority of all members of the Kosovo Assembly, i.e. the majority of all the votes, and the majority of those members representing minority communities. Such a principle is for instance foreseen for the appointment of two of the seven judges of the Constitutional Court (see art. 115.3) and should be extended to other posts and fields of responsibility.

We welcome the improvements made as regards to the conditions for the introduction and occupation of the post of Vice-President of the Municipal Assembly of Communities (see art. 62.2), but are nevertheless afraid that Roma will never be able to occupy this or a similar post, if no further safeguards are included.

Rights of Communities

We believe that the rights of communities should be strictly confined to national, ethnic and eventually linguistic minorities and not encompass neither the majority nor religious groups. The rights of national or ethnic minorities are indeed protected by international law, whose aim it is, based on the experience of the past, to protect the interests of those who, though citizens of a state, bear distinct national, cultural, ethnic or linguistic features, which they want to preserve and develop, and we are afraid that any broadening of the scope of applicability of these rights will inevitably weaken the rights of those who were to be protected in first place.

We also believe that the Committee on the Rights and Interests of Communities should be reserved to those communities who do not constitute the majority in Kosovo, and that this committee should be seized whenever a majority of those representing the minority communities in the Kosovo assembly so requests.

In relation with article 58, we believe that it should convey a clear commitment to the state to create the conditions necessary for the effective participation of persons belonging to national minorities in cultural, social and economic life and in public affairs as foreseen by article 15 of the Framework Convention for the Protection of National Minorities.

We welcome the fact that the draft refers to the possibility for the communities too participate in the activities of local, regional and international non-governmental organizations (art. 59.13). We are however afraid that this right will be of little practical impact on the Roma, a people without a kin state, unless those activities are supported by the state.

The principle of self-government which has been introduced in order to accommodate the demands of the Kosovo Serb communities should be extended to other communities if they request so. Given the fact that Roma communities are too small and politically and economically weak, it should nevertheless be analysed how they can make use, eventually in common with other minorities, of local self-government in order to develop and promote their identity and culture.

Given the particular political background, we are concerned that the frequent reference to the legitimate interests of the Republic of Kosovo or one or more Communities (see for instance 84.5) might be used at the expense of those communities who do not constitute the majority and call for a further elaboration of this notion.

We also believe that it should be evident in the 21st century that assimilation cannot be imposed on a group and do not see any need for a further qualification (art. 58.6.).

Human rights and anti-discrimination issues

In relation with article 22, we notice the omission of the International Convention on the Prevention and Punishment of the Crime of Genocide and the European Social Charter and of the European Charter on Regional and Minority Languages which is otherwise included in the document.

We also notice that the document uses both, “race” and “ethnicity” and would recommend greater consistency in the use of language.

We welcome the fact that the draft foresees the possibility of introducing measures aimed to counteract the effects of discrimination and social exclusion (art. 44.3. and 58.4), but regret that this possibility is not mentioned when it comes to speak about the representation of the different communities in public institutions.

We are much surprised that article 55 introduces the possibility to limit the exercise of human rights and fundamental freedoms. Human Rights and Fundamental Freedoms are indeed universal and stand above national law. Therefore they may not be limited in their applicability.

Rights of the displaced

Taking into account the fact that a substantial number of people from Kosovo continue to be displaced inside and outside Kosovo we believe that a particular section on the rights of the displaced should be introduced. This is particularly important as regards to issues such as return, access to citizenship and documentation, access to public services, and property return or compensation.

In the same context, we also believe that the constitution should pay greater attention to the issue reconciliation, included in article 58.2., and eventually propose mechanisms how reconciliation can be achieved.

In the light of the planned forced repatriation of up to 100,000 people, of whom many Roma, to Kosovo, we are very much concerned about the fact that the draft foresees the possibility of detaining a person for the mere reason that this person has been expelled from a country (art. 29.6), and believe that this is contrary to international law.

We are very much concerned about the exclusion of Roma from the whole process starting with the status negotiations themselves. Especially, the Diaspora, which constitutes by many times the multiple of those who have remained in Kosovo, has been never consulted.

If Kosovo wants to become a multi-ethnic and democratic society and guarantee the return of the refugees it needs to reach out to its Roma population and not just seek their silent acquiescence.

Thank you for your consideration. We remain at your disposal for further consultation.

Sincerely,

Romano Them, independent internet platform

Romano Dzuvipe, Belgium

Voice of Roma, United States

Council of Roma of Bosnia and Herzegovina

Ternikano Berno, France

cc: Ambassador Christian Strohal
Director ODIHR
Aleje Ujazdowskie 19
PL – 00 557 Warsaw
e-mail: info@osce.org

Ambassador Knut Vollebaek
High Commissioner on National Minorities
Office of OSCE High Commissioner on National Minorities
Prinsessegracht 22
NL-2514 AP The Hague

Mr. Ilkka Kanerva
OSCE Chairman-in-Office
Ministry for Foreign Affairs
P.O.Box 176
FI – 00161 Helsinki
e-mail: kirjaamo.um@formin.fi

Ms. Louise Arbour
UN High Commissioner for Human Rights
Office of the High Commissioner for Human Rights
Palais Wilson
52 rue des Pâquis
CH-1201 Geneva
e-mail: civilsocietyunit@ohchr.org

Mr. Jan Erik Helgesen
President
Venice Commission
Council of Europe
F-67075 Strasbourg Cedex
e-mail: venice@coe.int

Mr. Thomas Hammarberg
Commissioner for Human Rights
Council of Europe
F-67075 Strasbourg Cedex
e-mail: commissioner@coe.int

Secretariat of the Framework Convention for the Protection of National Minorities
Council of Europe
Directorate General of Human Rights and Legal Affairs (DG-HL)
F – 67075 Strasbourg Cedex
e-mail: minorities.fcnm@coe.int

Mr. Stefan Oeter
Chair of the Committee for the
European Charter for Regional or Minority Languages
Council of Europe
Directorate General IV – Education, Culture and Heritage, Youth and Sport
F-67075 Strasbourg Cedex, France
e-mail: minlang.secretariat@coe.int

Mr. Alcee L. Hastings
Chairperson
Helsinki Commission
234 Ford House Office Building
Washington, D.C. 20515-6460
United States of America
e-mail: info@csce.gov