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Delay in the adoption of the Law on Same-Sex Unions in Serbia a consequence of lack of political will

Pride March 2019; Photo: Tanjug / Andrija Vukelić

A few weeks ago, the Ministry of Human and Minority Rights announced that the work on the final version of the Draft Law on Same-Sex Unions had been completed, almost half a year later since the legal team of the Office of the Council of Europe in Serbia gave an expert opinion on its content. As announced by the line minister Gordana Čomić, now it’s the Government’s turn. EWB interviewees point out that they have not seen the latest version of the Draft Law yet, and add that the adoption of the law is being tactically delayed due to the upcoming elections. According to them, Europride, which is planned to take place in Belgrade in 2022, could be a certain kind of pressure on the government.

Did Serbia “commit” itself to adopting the Law on Same-Sex Unions?

Since the work on the Draft Law began, the part of the public against the adoption of such a law has often referred to the ruling of the EU Court of Justice, which allows member states to resolve the issue of same-sex marriage within their national legislation. However, what is omitted is that the same Court orders the member states that same-sex unions must be treated in the same way as heterosexual ones.

The fact that Serbia has not yet clearly decided to regulate same-sex unions legally can be seen in the latest Revised Action Plan for Chapter 23, adopted in 2020. Although the Draft Law is being worked on, the government does not mention this Law among the planned activities.

The improvement of the position of the LGBTI Community is mentioned somewhere else, in the context of realization of the Action Plan for the implementation of the Strategy for Prevention and Protection against Discrimination through “continuous and consistent application of the Law on Prohibition of Discrimination.”

“With the continuation of the implementation of an efficient model of community policing and continuous cooperation with the representatives of the LGBTI community, work will continue on improving the security situation of all members. It is planned for the following period to continue with the positive practice of raising awareness on the inadmissibility of all forms of discrimination and ways of prevention, which will be achieved through a series of educational events, citizen and public servants training, as well as through printing and distributing manuals for recognizing and reacting to discrimination” states the revised Action plan.

Also, the documents on the Negotiating Position of the Republic of Serbia and the EU Common Position emphasize the adoption and application of the Law on Prohibition of Discrimination, but the Law on Same-Sex Unions is not mentioned here either. 

 

Starting points of the Law on Same-Sex Unions regulate practical issues such as entering and leaving a same-sex union, rights, and obligations in case of disease, caretaking, joint-owned property, taxes, pension, inheritance, issues arising from an unregistered same-sex union, says Dragiša Calić from the Lawyers’ Committee for Human Rights (YUCOM). He says that they referred to the Law on Family, or they contained solutions from it for the most part.

“Still, the part related to parenthood, that is, children’s rights, the obligations, and rights of parents, parental rights, as well as adoption, foster care, and guardianship are not included in relation to family law,” says Calić.

The first official lack of political will was the statement made by the President of the Republic of Serbia Aleksandar Vučić in May this year when he said he won’t sign the Law and that he would “send” it back to the National Assembly, calling it unconstitutional, referring to the Family Law “that defines marriage as a legally regulated union between a man and a woman.”

However, the position of the Lawyers’ Committee for Human Rights is that the Law on Same-Sex Communities is not in conflict with the Constitution, as well as that it regulates practical questions from the everyday lives of same-sex couples, which in no way disturbs or lessens the rights of others.

Union isn’t “marriage” but “partnership”

Calić reminds us that the law doesn’t regulate the union as a marriage but more as a partnership, but as he states, “he is not sure that citizens in such a divided society, unprepared for any dialogue and tolerance, understand the importance of passing this law for the realization of the rights of minorities, in this case, LGBT citizens”.

Tobias Flesenkemper, Head of the Council of Europe’s Office in Belgrade, said that the purpose of this law is “changing the lives of people in Serbia for the better” when on June 4 this year, he submitted the expert opinion of the General Directorate for Democracy of the Council of Europe on the Draft Law on Same-Sex Unions to the Ministers for Human and Minority Rights Gordana Čomić.

“To make a real change, it’s necessary to have a strong political will and dedication, that will turn it into strong legislature that won’t be just passed, but implemented too,” said Flesenkemper back then.

The opinion available on the Council of Europe’s website concerns Council of Europe standards in the field of combating discrimination based on sexual orientation and gender identity, as well as the protection of social rights. According to the opinion, the adoption of a specific legislative framework for same-sex couples would bring Serbia significantly closer to meeting these standards, in addition to a series of recommendations to improve the original Draft Law.

However, the last draft that the representatives of human rights organizations had an insight into was the one on which the experts of the Council of Europe commented, says the director of non-governmental organization Civil Right Defenders for Europe, Goran Miletić.

According to him, the comments completely align with what the organizations and experts in Serbia have insisted on since the Working Group’s first meeting.

“According to the Ministry, all comments have been incorporated into the latest Draft Law, but unfortunately, we have not seen the final version. The most important thing is that it is presented to the public and that the adoption process starts as soon as possible”, says Miletić.

Calić from YUCOM also says that the latest Draft is unknown to the public, reminding us that at the end of February this year, his organization commented on the starting points as a contribution to the adoption of the Law, after which they received an evaluation list from the Ministry, which showed that all the suggestions of the time were accepted in principle.

“We have not seen the text of the Draft. If it is the same as the text of the starting points on which we worked and where our suggestions were adopted, then the Draft regulates adequately the issues that are important for the everyday life of LGBT couples, and I highlight that certain questions have been completely omitted – the already mentioned part which differs in relation to the Family Law”, says Calić.

Calić tells us that the comments on the first version of the Draft were part of the process that was taking place parallel with the passing of the Law on Amendments to the Law on Prohibition of Discrimination and Law on Gender Equality while highlighting that the Law on Same-Sex Unions is on hiatus even though these two acts were adopted.

“The adoption of the Law, which has long been in the Government and ministries’ strategy and work plan, is being delayed. After drafting the Law, there is no reason for it not to be adopted, and it is obviously a matter of political will”, adds Miletić.

Almost a year has passed since the formation of the Special Working Group for drafting, and according to the first announcements, it was supposed to be on the agenda of the National Assembly in the spring session. However, the process seems to be delayed.

Miletić believes this is primarily about political will and that the Law will be adopted “the moment the government decides.”

“As we know, all decisions currently depend on President Vučić, and that is why I expect that the Law will be adopted after the elections. His explanation that he will not sign the Law was followed by the statement that the Article of the Constitution regarding marriage and extramarital unions might change, but we are seeing this did not happen as part of constitutional changes that we will vote on the referendum on the 16th of January 2022” says Miletić.

Calić believes that the Government and the relevant Ministry are the ones to be asked about the delay, and he thinks that is because the public is highly interested in this topic.

“The elections were approaching, so the moment for continuing the procedure was being tactfully chosen out of political reasons”, says Calić.

Miletić also mentioned the elections several times in the media, saying that he expects the adoption of the Law on Same-Sex Unions after the elections in April, which might coincide with Europride in mid-September, and sees this event as a form of pressure on government officials. He believes that everyone will “justifiably” ask why is the adoption of the Law being delayed, which has long been in the strategy and work plan of the Government and ministries, and reminds us that after the Draft Law was finished, there is no reason not to adopt it and that this is about political will.

“Many Europride participants and high-ranking guests we expect will ask the authorities about this. This is not pressure for the government to do something it does not want, but to respect international standards that it has ratified itself”, Miletić points out.

This article is published within the project “Supporting media freedom in Serbia in relation to the EU accession process”, implemented in cooperation with EUROPEUM Institute for European Policy and supported by the Ministry of Foreign Affairs of the Czech Republic. The views expressed in this article do not represent those of the EUROPEUM Institute or those of the Ministry of Foreign Affairs of the Czech Republic.

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