As part of the lockdown measures to curb COVID-19, the Government of Kosovo restricted the right to freedom of movement by limiting movement to times between 10:00 – 16:00 and 20:00 – 06:00. This decision was based on the law for the prevention and fighting against infectious diseases (PFAID) and the law on health. According to the President, this restriction was unconstitutional. He thus submitted the case to the constitutional court of Kosovo (CCK).

Finding in favour of the President, on April 3, the CCK held that the Government of Kosovo’s restrictions on the right to freedom of movement violated the constitution of Kosovo. The CCK stated that the Government imposed restrictions were not in accordance with the law. The court based this argument on Article 55 of the Constitution, which states that ‘fundamental rights and freedoms guaranteed by this Constitution may only be limited by law’. According to the CCK, the law on PFAID, and the law on health, did not authorise the Government to limit constitutional rights provided by article 35, the right to freedom of movement. In its reasoning, the court stated that the Ministry of Health had the authority to make decisions to fight against pandemics. However, it held that this authority did not include the power to limit the movement of the people at the state level. For this purpose, a new law would have to be adopted by parliament.

The judgment and the CCK’s reasoning is incorrect and contradicts the powers in the PFAID.

First, article 48(c) states that:

 […] Ministry of Health:

‘Organizes the work for administrative competent authorities, other Ministries that get engaged in eradication of a specific infectious disease and for application the protection measures from infectious diseases, in cases of an epidemic which jeopardizes the whole country.

This article portrays that the Ministry of Health has competences for taking measures in the whole country. Therefore, the CCK’s finding that the Ministry of Health does not have the authority to act at the state level does not align with article 48(c).

Second, the court justified the lack of authority at the state level, using article 46.1 of PFAID. This article provides that:

‘Municipal health authorities are obliged to send reports to Ministry of Health relating to this Law application and approved dispositions based on it as well as data in relation to disease emergence and measures taken for infectious diseases prevention and fighting.’

The CCK interpreted this to mean that any restrictions to curb the COVID-19 pandemic had to be taken at the local level, ousting the jurisdiction of the Ministry of Health. However, all that this provision requires is that local municipalities report to the Ministry of Health. This does not mean that the Ministry or the Government do not have competences to take measures at the state level. The provision merely affirms the role of local governments when fighting infectious diseases.

In response to the judgement, on April 12, the Government of Kosovo took new measures for the prevention of the spread of the virus by taking separate decisions for each municipality. The opposition in Kosovo took the matter to the CCK, where the court ruled that some of its decisions are constitutional, and some infringe the constitution. Overall, the argument that the Ministry of Health does not have competences at the state level contradicts the PFAID. It is hoped that future judgements will clarify this point and ensure that the Ministry of Health can promptly pass measures during a health crisis.

First, the two minority groups and their members do not enjoy equal political rights to other groups. Article 64 of Kosovo’s Constitution defines the composition of the parliament, and out of 120 seats, guarantees 10 seats to Serbs as the largest minority group and another 10 seats to each of the Bosniaks, Turks, Romas, Ashkali, Egyptians and Gorani. The exclusion of Montenegrins and Croatians constitutes an outright violation of the rights stipulated in the Framework Convention for the Protection of National Minorities (FNMC) and the International Covenant on Civil and Political Rights (ICCPR). Both international treaties are recognized in the Constitution as directly applicable, and  “in the case of conflict, have priority over provisions of laws and other acts of public institutions” (Article 22).

Second, the two minority groups do not have equal economic rights. Article 61 of Kosovo’s Constitution provides that communities are entitled to “equitable representation in employment in public bodies and publicly owned enterprises”. This effectively ensures that minorities have an equitable share of jobs in public institutions; however, it applies only to minority groups that are constitutionally recognized, thus marginalizing Montenegrins and Croatians.  According to a 2013 study, 7.7% of civil servants in central and local-level institutions are from minority groups, without any Montenegrins and Croatians. The need to properly address concerns of all minority groups is a matter of individual rights as much as collective rights. Without being recognized as a minority group in Kosovo, Montenegrins and Croatians are denied the right to their language, equal employment opportunities, and the right to their own cultural identity.

For members of these minority groups, it has become prudent or even existentially important to hide under the shroud of assimilated group identities that are already constitutionally recognized. For example, when applying for public posts, members of Montenegrin and Croatian communities tend to declare themselves as Kosovo Serbs or Bosniaks, in order to boost their employment chances. This leads to an erosion of their national identities and overlooks the need to strengthen peace and security by protecting minority rights. The introduction in 1998 of the FCNM multilateral treaty came after the conflicts in the Balkans and Rwanda, involving persecution of ethnic, racial and religious minority groups, showed that the oppression of minority groups is likely to ignite political conflicts. Minority rights are moreover deeply entrenched at the international level, through the UN and the OSCE Copenhagen document (paragraph 30).

The solution to the problem of minority oppression requires an amendment to the Constitution of Kosovo. Notwithstanding the continued pledges of Kosovan politicians to rectify the situation, there is a lack of political will and an absence of advocacy efforts to promote this initiative, including on behalf of the international community. An amendment to the Constitution requires 2/3rds of votes of the parliament and 2/3rds of votes from minority members, which is a challenging threshold. One thing is clear, however: any prolonged delay in the recognition of minority groups may inflict irreparable damage to these communities.

I recently spent three weeks at the UNICEF Innovations Lab in Pristina, Kosovo. I was interested in working at the Lab in order to gain a better understanding of what ‘innovation’ means in the context of human rights advocacy, a core aspect of the Lab’s work. I was aware of the movement towards innovation within the development and humanitarian sector, and I wanted to learn how innovative approaches can empower members of the public to enforce their rights. The UNICEF Innovations Lab works with the most marginalised young people in Kosovo, providing them with skills to understand and advocate for progress, change, and improved rights protection in a society still working to heal the scars of conflict.

I had the opportunity to support the Lab’s Youth Advocacy section. The Youth Advocacy Platform works at the grassroots, supporting young people from marginalised ethnic minority communities to design and carry out their own advocacy campaigns. The Innovations Lab staff work actively with the young people, providing them with resources and training. However, the crux of the program is that the young people have ownership over their own campaigns. They conduct community needs assessments to ascertain the most pressing rights concerns, then design and carry out their advocacy campaigns to raise awareness of the concerns amongst relevant stakeholders. In essence, the Lab equips young people to independently and sustainably advocate on behalf of their communities.

My role involved documenting this rights advocacy campaign process  and analysing it for possible improvements. I collaborated with other members of the Lab to develop recommendations for re-designing the process, in preparation for the next stage of roll-out.

Over the course of the internship, I gained a better understanding of what innovation can mean in the context of rights advocacy. The Lab staff work on a horizontal basis with their ‘target population’ of young people in marginalised communities. They engage directly and constantly with the youth, not imposing their ideas upon the communities but rather giving them the resources to improve their own situations. The Lab aims to empower young people to advocate independently, without the need for NGOs or aid agencies to support them or to advocate on their behalf. In essence, the Lab is working to diminish the need for its own existence, enabling people who are marginalised to create their own sustainable solutions.

To this end, a core aim of the Lab is to make young marginalised Kosovans more aware of their rights. The Lab team identified that many young people in Kosovo have a limited understanding of their rights, which increases their vulnerability to discrimination and rights abuse. Lab employees were therefore in the process of designing a ‘Know Your Rights’ online platform, a website that provides information about approximately 100 core rights under Kosovan law in language that is very accessible to young people.

All programs are designed with the beneficiaries at their heart, using a strongly human-centred design approach. The aim of the Lab is to be flexible enough to respond immediately to the needs of young Kosovans. The young people with whom I interacted expressed the feeling that the staff members at the UNICEF Lab were more receptive to their interests than other NGOs working to promote the rights of minority communities. UNICEF is making great strides, and it is exciting to consider how innovative methods of working with ‘end users’ could be further infused into legal work in developing contexts globally.

Additionally, the internship helped me to understand the usefulness of inter-disciplinary work in tackling the concerns that our world faces. There is much that lawyers can learn from approaches used in design, engineering, business and so many other disciplines, to generate more comprehensive solutions. I am immensely grateful to OPBP for having made this experience possible.