Mr Davis, Vice-President of the Assembly, took the Chair at 3.05 p.m.
THE PRESIDENT.- The sitting is open.
1. Minutes of proceedings
THE PRESIDENT.- The minutes of proceedings of the previous sitting have
not yet been distributed. They will be considered at the next sitting of the Assembly.
2. Organisation of debates
THE PRESIDENT.- We have three debates this afternoon: on Bulgaria,
international adoption and Protocol No. 12 to the European Convention on Human Rights.
There are sixty-one speakers and fifteen amendments.
The first debate is set to finish at 5 p.m. We will interrupt the list
of speakers at about 4.30 p.m.
The second debate will start at 5 p.m., and speeches from the floor
must be completed by 6.35 p.m. so as to allow the conclusion of proceedings by 6.45 p.m.,
when the third debate will commence.
Debate on the draft protocol will be interrupted at 7.50 p.m. to allow
proceedings to be dispatched by 8 p.m., the scheduled end of the sitting.
Are these arrangements agreed?…
They are agreed.
3.
Honouring of obligations and commitments by Bulgaria
THE PRESIDENT.- The first debate this afternoon is on the report on the
honouring of obligations and commitments by Bulgaria, presented by Mr Atkinson and Mr
Gjellerod on behalf of the Monitoring Committee, Document 8616.
The list of speakers closed at 12 noon today. There are twenty-three
names on the list, and eleven amendments have been tabled.
As we have just agreed, we will interrupt the list of speakers at about
4.30 p.m. to allow time for the reply and the votes, and the debate will finish at 5 p.m.
I call Mr Atkinson and Mr Gjellerod to present their report.
Mr ATKINSON (United Kingdom).- Mr President, the last time the
Assembly debated the implementation of Bulgaria’s commitments was September 1998. Mr
Gjellerod and I explained why we felt it would be premature to recommend the de-monitoring
of Bulgaria then. True, it had made considerable progress, and especially so under the
present government elected in 1997. However, after two visits in December 1997 and June
1998, there remained expressions of concern from too many sectors of Bulgarian society for
us to propose the seal of our approval. Today, after two further visits last year, we are
confident of the judgment that we have made, which has been unanimously endorsed by the
committee, that the monitoring of Bulgaria should now cease.
Let us briefly recall that Bulgaria had far to travel down the road to
freedom when it joined the democratic club of 1989. It had been the Soviet Union’s
most subservient satellite, almost a direct reflection of its big brother. We were
encouraged by the reforms on which it had vigorously embarked on accession in 1992, and we
were dismayed when those reforms were stalled, leading Bulgaria to the brink of economic
collapse in 1996.
We are encouraged now by the evident commitment of the present
government to aspire to our standards, and by its application for membership of the
European Union, which would in any case require Bulgaria to reach those standards. During
our visit last month, we were particularly impressed by the evident integrity of the new
supreme prosecutor, Mr Filchev, and his determination to tackle corruption more
effectively, for which purpose ending the immunity of MPs, magistrates and public
officials, as we have recommended, would be appropriate.
Time does not allow us to refer in great detail to the draft resolution
and recommendation for which we seek the Assembly’s approval today. We have listed
the further progress that has been made since our last debate. We pay tribute to
Bulgaria’s contribution to the resolution of the Kosovo conflict and the responsible
role that it is taking in encouraging stability in the Balkans. However, in section III we
list our remaining concerns and the trends that continue to challenge our confidence. The
key issues include: the independence of the judiciary and of the media, which should be
free of government influence; the executive control of the twenty-eight regions and, as we
have stressed before, our continuing discomfort at the dismissal of civil servants and
embassy staff abroad by presidential decree.
Those are complicated issues on which we continue to receive
contradictory opinions from the government and the opposition - what is new in a healthy
democracy! These matters are of such basic importance that we list in section IV further
steps that we wish to see taken to satisfy European norms. We hope that what we ask the
Assembly to endorse today is clear enough to encourage new public debate and understanding
in Bulgaria on issues of remaining concern. Certainly, we expect a second debate in
parliament on our report. At the end of the day, it is for the people of Bulgaria and the
Parliament of Bulgaria to decide on what further reforms are required - by consensus, we
hope, but always, always, always by democratic and non-violent means.
Therefore, we clearly and unambiguously recommend an end to the
monitoring of Bulgaria. To anyone who feels that our outstanding concerns are too
important to allow us to de-monitor, I stress our confidence that Bulgaria’s clear
and, it seems to us, unanimous commitment to full membership of the European Union as soon
as possible will prove sufficient motivation to ensure that our concerns will be
satisfied.
I close by paying tribute to the Bulgarian authorities who always
proved helpful in preparing the official programmes that we requested for our four visits.
That is not our experience in every country that is being monitored. I pay tribute in
particular to the Bulgarian delegation, which is led with so much perseverance by Mr
Toshev. Despite their political differences, its members have worked together without
acrimony to make our task easier. We wish them well.
THE PRESIDENT.- Thank you, Mr Atkinson. I call Mr Gjellerod.
Mr GJELLEROD (Denmark).- The process of monitoring Bulgaria has
been interesting, because we have seen a clear response from Bulgarian society and the
government and parliament to our efforts and recommendations. Bulgaria has achieved
agreement with the state of Macedonia, as we recommended. Bulgaria has consulted experts
and has ratified the Framework Convention on the Protection of National Minorities. The
role of the Bulgarian press has also been important, and it has followed our work closely.
I believe that we have planted seeds from which the democracy of Bulgaria will be able to
grow. The press can help by watering those seeds and nurturing them.
Outstanding issues remain. We must continue to combat corruption. I
hope that the EU will formulate clear demands for Bulgarian society. The decentralisation
of executive power towards greater democratic control of magistrates at all levels of
society is of great interest. We hope that the Bulgarians will listen to our advice on the
training of judges, magistrates, police officers and prison staff. The political climate
in Bulgaria is of concern. Relations between the government coalition and the opposition
have been rough. We recommend that the Bulgarian Parliament should debate our report to
seek solutions and compromises that would allow it to deal with the outstanding issues.
Finally, we trust Bulgaria. That is why we recommend signing off the
monitoring procedure. We trust that political institutions, both of government and of
opposition, will find a means of working for the best in Bulgaria in accordance with the
rules and principles of the Council of Europe.
THE PRESIDENT.- Thank you, Mr Gjellerod. I call Mr Elo to open the
debate on behalf of the Socialist Group.
Mr ELO (Finland).- First, I congratulate Mr Atkinson and Mr
Gjellerod on their excellent report and their work on behalf of the Parliamentary
Assembly. The Socialist Group almost entirely shares the views of the rapporteurs, but I
should like to discuss a few issues of importance to the further development of Bulgarian
society.
The rapporteurs pay tribute to Bulgaria for its recent developments,
but they also voice concerns about some fundamental problems. First, the rapporteurs refer
to the influence of the governing party on the judiciary, following changes in the
membership of the Supreme Judicial Council and the appointment of a new chief prosecutor.
That is a big problem, and the committee may deal with it again. There are no opposition
representatives among the council’s candidates, which is a major cause for concern.
Recently, the Bulgarian executive has acquired more powers over the
judiciary. The opinion of the Monitoring Committee can be found on pages 13 and 14 of the
report, where the opinion of the Venice Commission is quoted. I am also concerned about
the misuse of intelligence regarding the director of the National Investigation Service
and as regards unauthorised surveillance for political reasons, to which the report also
refers.
The report also contains the opinion of the rapporteurs on the role of
the media. The influence of the government over the media following a change in the
membership of the National Radio and Television Council has increased. That means that
licensing is regulated by a government-appointed body, which is a cause of concern to this
Parliamentary Assembly. There is no single representative of the opposition on the
National Radio and Television Council, so we can see that it is politically biased.
Licensing is done by a government-appointed body and is therefore politically motivated.
Of course, that is not acceptable in a democratic system.
We also read in the report that the government has control over local
government; for example, paragraph 3.v of the draft resolution refers to "the control
exercised by the executive on the 28 districts recently established". Heavy
interference by the executive in local government has occurred in Bulgaria, especially
during the local election campaign in October 1999, and by the government-appointed
governors of the twenty-eight districts. There are also sanctions against journalists and
the dismissal of civil servants for political reasons. We heard that only last week
diplomats were made to sign two-month contracts, which is not normal international
practice.
Most of all, I am concerned about the rapporteur’s comment about
the "increasing divide within society, mirroring the lack of dialogue between the
governing majority and the opposition and the rifts within the Bulgarian Orthodox Church
and the Muslim religious community." I am especially worried about the divide between
the political parties. In a democratic system, it is important that the political parties
can conduct a dialogue, and that is necessary for the development of Bulgarian society.
In the name of the Socialist Group, I wish Bulgaria and its citizens
success on their road to a better functioning democracy and economic prosperity.
THE PRESIDENT.- Thank you, Mr Elo. I call Mr Surján.
Mr SURJÁN (Hungary).- To close the monitoring of a country is
always a pleasure. The EPP Group supports the report; the Bulgarians are happy with it;
everybody is happy with it. Why? Is monitoring a procedure for blame, or does it help a
country? I am convinced that in this case monitoring was a great help to Bulgaria. I
congratulate the rapporteurs on their excellent job over the past few years.
It is always hard work to be the rapporteur of a committee on a
country. It is extremely hard work to be the rapporteur of a committee monitoring a
post-communist country. It is not easy for people with western European minds to
understand how things are and how they were in such countries. The governing party of a
country that I shall not name was pushing the Council of Europe to stop monitoring it.
After a democratic election, the party went into opposition and then became committed to
maintaining the monitoring. That is an impossible situation. In a major democracy, that
would be intolerable to people on the right as well as those on the left. It is important
to understand that point in order to understand the reaction in Bulgaria.
I speak in the name of my political group, but I am Hungarian, and
democracy is new to our country. It has experienced the same problems as Bulgaria. It is
said that civil servants were pushed out of their jobs for political reasons, but it is
possible that the civil servants were politically committed to one political branch,
because they were educated in their youth to be politically committed within a one-party
system. Is it fair to push them out of their jobs? That is not an easy decision to make.
If they were able to change their minds and be politically independent, it would be unfair
to push them out for ten years because they had been a party member in a one-party system.
However, if they were still politically committed, it would be fair to point out that
being a civil servant is a non-political job.
The report has a long list of "to dos". It would be
reasonable to expect our Bulgarian colleagues to do most of them. However, the EPP
supports the amendments tabled by our Bulgarian colleagues and I strongly suggest that the
Assembly does so and votes to accept this excellent report.
THE PRESIDENT.- Thank you, Mr Surján. I now call Mrs Severinsen.
Mrs SEVERINSEN (Denmark).- I, too, congratulate the rapporteurs,
David Atkinson and Henning Gjellerod, on their excellent report, which is the second that
has been presented to us. I thank them also for the excellent way in which they have
conducted their task. They have put their finger on the many and various problems in
Bulgaria.
The rapporteurs have also been successful in being part of the reform
process. The draft resolution demonstrates their interest in many of the problems of a
democracy in transition. All the points have been discussed in the Bulgarian Parliament,
and I hope that the remaining problems will be a subject for future debate there. The
rapporteurs have succeeded in transmitting their monitoring concerns to the Bulgarian
parliamentarians and have thereby become part of the national debate, which is very good.
I congratulate Bulgaria on the progress that it has achieved up to this
point, at which we propose to end the current monitoring procedure. It has not been an
easy road for Bulgaria. We tend to forget that the Parliamentary Assembly’s agenda
almost always contains urgent debates on the crisis in the former Yugoslavia, sanctions
against Serbia and the crisis in Kosovo, and all those problems have economic consequences
for the Bulgarians. On top of those problems, they have all the same experiences faced by
post-communist countries in transition, including problems with legal reforms, the
independence of the media, the behaviour of the police and minority groups, and
administrative problems.
The monitoring procedure may be closed, but the problems pointed out in
paragraphs 3 and 4 of the draft resolution show that we cannot sit back and consider
the work done. I am satisfied that the Chairman of the Monitoring Committee will, within a
year, report to the committee what has been done about the shortcomings listed in the
draft resolution. I hope that the process will not result in a new monitoring procedure.
The Liberal Group is optimistic about that. When it comes to democracy, the work can never
be considered to be fully done in any country. We wish Bulgaria every success in its
application to join the European Union. That shows that the process of establishing
democracy and participating in European institutions is irreversible.
THE PRESIDENT.- Thank you, Mrs Severinsen. The next speaker is Mr
Kirilov.
Mr KIRILOV (Bulgaria).- I must be frank. As a Bulgarian I am not
happy with the report, which comes at the end of a uniquely long monitoring period.
Bulgaria deserves better, but it is not the rapporteurs’ fault. On the contrary, they
have done a great job. After all that they have seen and felt over the past two years they
have tried to be diplomatic, but being true democrats they could not hide the truth.
In the previous two reports, the rapporteurs pointed out that the main
problem facing the country came from "certain tendencies remaining from the
authoritarian and centralised past". The outstanding concerns and worrying trends
referred to in the draft resolution relate to the clear tendency of governments in my
country to accumulate ever more centralised power in every area, combined with increasing
authoritarian tendencies. The plight of the opposition should be the least of our worries.
If it is robust enough, it will survive, and it managed to survive and increase its
support at the local elections in October last year. However, such trends do not
contribute to the development of a democratic civil society and they damage the fabric of
a free market economy.
More than a year ago, when we debated the information report, I said
with a heavy heart that, if that trend was not arrested, sooner or later we would have to
pay a heavy price. I said that that would affect all of us - the opposition, the majority
and Bulgaria at large. We are already paying the price economically.
The rapporteurs have grasped at least one major problem. Paragraph 3.iv
refers to: "the generalisation of corruption resulting in particular from illegal
practices in privatisation, excessive licensing" and other matters. I do not have
time to talk about the influence of the governing party over the judiciary and the media,
but all the concerns expressed in the draft resolution are caused by the seemingly
irresistible drive to control everything. That is a remnant of the old Bolshevik way of
thinking.
The newly adopted law on radio and television ensured the total
dominance of the governing party on the National Radio and Television Council. The new law
on telecommunications empowered a state-controlled rather than independent body to grant
and revoke licences for radio and television broadcasts. That came into force before last
year's local elections.
The report also describes massive purges in the administration. There
is an amazing example featuring a charming young lady who used to be a member of this
Assembly. She is now a foreign minister and has a good image abroad, but at home we are
not doing the right things. As soon as she came to office, she threw more than 400
diplomats out on the streets - most of them young or middle aged. That was not done
because of political beliefs. The older ones had already been sacked by her predecessor in
1992. Now, just a few days ago, after three years in office, after the Monitoring
Committee had adopted this report and she had met the rapporteurs several times and given
them assurances, she forced all the remaining personnel - not just some - to sign
temporary two-month contracts. I wonder what the rapporteurs will say about that. There is
already a popular joke in my country that the Union of Democratic Forces will never stop
to divide the people between us and them because it would have to choose between the
capable and the incapable. That might be a little strong, but we have to stop these
practices, because they are not the way to create stable institutions and administration
according to European standards.
Bulgaria should be commended for a lot of things, particularly any
progress towards European democratic standards. We were all enthusiastic about the
European Union's invitation to start accession negotiations, but we cannot afford to move
slowly any more or to neglect the basic criteria. As I have told the rapporteurs many
times, Bulgaria should view the monitoring procedure as a resource offered by the Council
of Europe to help us to find a firm legal grounding in institution building. We should use
the Council of Europe as an arbiter to settle our disputes. We are ready to debate the
issues in our parliament and to co-operate, but everything must be based on European
criteria and standards.
THE PRESIDENT.- Thank you, Mr Kirilov. I call Mr Hornhues.
Mr HORNHUES (Germany) congratulated the rapporteurs. Although
some issues remained outstanding, there had been much progress in Bulgaria. He hoped that
if the opposition gained power, it would not forget the points that it was making. The EU
had given Bulgaria the possibility of future membership and it was further good news for
Bulgaria that the rapporteurs had proposed to end Council of Europe monitoring. There was
a brighter future for Bulgaria, which should continue to be supported by the Council of
Europe.
THE PRESIDENT.- Thank you, Mr Hornhues. I call Mr Jaskiernia.
Mr JASKIERNIA (Poland).- I congratulate Mr Atkinson and Mr
Gjellerod on the tough job that they have done in monitoring Bulgaria. Mr Atkinson was the
most experienced man there. When I asked him whether he felt that it was time to stop
monitoring, he said that it was, so I will vote for that conclusion. I congratulate the
Bulgarian delegation on the achievement of almost reaching the end of the monitoring
process.
At the same time, I have some problems with the report, because it uses
a different methodology from that used previously. We should remember that we are not
monitoring the country as such - we are monitoring the obligations and commitments of the
country to the Council of Europe. Until now, we had a clear scenario. If obligations were
fulfilled, we stopped the monitoring procedure. If obligations were not fulfilled, we
continued the monitoring procedure.
In this case, the rapporteurs and the committee advised us to stop the
monitoring procedure, but at the same time the document states: "The Assembly also
notes a number of outstanding concerns and worrying trends". What do such harsh words
mean? The report lists several factors, such as the influence of the governing party over
the judiciary and the public media; insufficient implementation of minorities’
constitutional rights - that is one of the primary concerns of this body - the control
exercised by the executive over the twenty-eight districts recently established, I
believe, against the rule of the local Serbians; and continuing police brutality. I have
asked Mr Atkinson several times what is meant by the last factor. Police brutality can
occur in any country, but, if we are making an accusation of continuing police brutality
in a democratic state that is a member of the Council of Europe, we should do something
about it.
The major dilemma with the report is whether the situation in Bulgaria
is so unclear that the rapporteur is justified in making so many accusations or whether a
different methodology was used. We should decide one way or another whether Bulgaria is
fulfilling the obligations and, if not, we should not stop the monitoring procedure. If
the criticisms do not keep Bulgaria from fulfilling its obligations, they should not be in
the document. We are not in a position to discuss Bulgaria as a whole - whether the whole
country is good or not. We are only deciding whether it has fulfilled the obligations.
The wider problem is important, because the committee concluded that
the monitoring procedure should stop and that it would pursue its dialogue with the
Bulgarian authorities on the issues contained in paragraph 4 of the draft resolution.
However, the problem is that we do not know what that dialogue will involve, because there
is no procedure for it. Of course, we talk to each other every day and we have a dialogue
in the Council of Europe in the corridors and in the Hemicycle, but we do not have a
procedure. It would be one thing to stop the monitoring procedure if one or two minor
problems remained, but it is another to stop the monitoring procedure with nine serious
problems remaining in the document and a promise to continue the dialogue.
To be constructive, I wish to advise the Assembly to discuss changing
the words relating to the monitoring procedure to precise words that mean the continuation
of the dialogue. If we are to come to such conclusions, we should have precise procedures
for the continuation of the dialogue; otherwise, we should continue the monitoring
process. I said earlier that I supported the cessation of the monitoring process, but I am
only doing that because I trust Mr Atkinson and Mr Gjellerod. However, the problems with
the report remain.
THE PRESIDENT.- Thank you. The next speaker is Mr Toshev.
Mr TOSHEV (Bulgaria).- I appreciate the work done by the
rapporteurs on Bulgaria. Obviously, their task was not easy. They were overwhelmed by
having huge amounts of information to assess, which was often contradictory and even false
in some cases. Furthermore, the procedure under Resolution 1115 does not provide a good
mechanism for verifying the information obtained or to compare it with the situation in
other member states. Many meetings were held, including meetings with government
representatives and ministers, who answered questions and allegations. Unfortunately, I
believe that their answers and explanations are not fully reflected in the memorandum to
the report.
Still, the great progress noted by the rapporteurs is due to the
government of the Union of Democratic Forces and the parliamentary majority, which have
succeeded in doing their job over the past almost three years to reach the present
situation in which Bulgaria is invited to open accession negotiations with the European
Union. As a matter of fact, the report of the European Commission on the issue states
clearly that Bulgaria meets the political criteria for EU membership. However, in the
process of adopting some laws of crucial importance to European integration, such as the
ratification of the Framework Convention on the Protection of National Minorities or the
Law on Educational Plan - regulating education at school in the mother tongue - we were
confronted with firm opposition from the Bulgarian Socialist Party, which regrettably has
still failed to get rid of its communist past.
The media law that the rapporteurs criticise has been highly
appreciated by the Directorate General X of the European Commission and that has led to
our involvement in the EU Media II programme. In fact, that law makes it possible to
broadcast programmes in the mother tongue on the electronic media and I have the
reassurances of Bulgarian national television that programmes in the Turkish language will
start within three months. The law provides also for the establishment of a media council
comprised of public figures to monitor the national media. Its membership will be
partially renewed every two years. That system has replaced the previous arrangements,
under which a parliamentary committee performed those functions.
The judicial reform has been completed and the Venice Commission has
given its positive assessment of the reforms in the judicial system. I stress that, in the
Anglo-Saxon legal system, the equivalent of our Prosecutor General is a political figure
and the Minister of Justice - as in Poland, for example - but in Bulgaria the Prosecutor
General is depoliticised and elected by the Supreme Judicial Council, consisting of
fourteen representatives of the magistrates and eleven members elected by parliament.
However, all members belong to the legal profession and they are not political figures.
It is appropriate to mention at this juncture that Bulgarian
magistrates are irreplaceable and they enjoy immunity, which makes them independent.
However, as the rapporteurs fairly note, immunity generates conditions for corruption and
neglect of law. Talking about the fight against corruption, I wish to emphasise where we
started only three years ago - with plundered banks because of unsecured lending to close
friends; decapitalised state-owned enterprises, bled to death by parasitic companies
installed as intermediaries at the input and output stage of the production process in
order to pump out resources under terms and conditions that were highly unfavourable to
the enterprises themselves; and a dramatically devalued national currency. Today, all
those things are but a bad memory.
The introduction of the currency board arrangements has promoted
financial discipline. We have recently passed the Public Procurement Act, the
Administrative Services Act, the tax code and more stringent customs control measures. We
have cancelled forty-six licensing regimes and that process is still under way. We are
looking forward to the co-operation of the other countries in order to cope successfully
with the problems, especially now that we have acceded to the relevant instruments of the
Council of Europe. In that connection, I am grateful for the recommendations given to the
Committee of Ministers of the Council of Europe, which I hope will be adopted.
The proposal to cease the monitoring procedure is encouraging to us as
recognition of what we have achieved so far. Nevertheless, I wish to point out that we
shall continue our close co-operation with the Council of Europe even more
enthusiastically. We expect more confidence than confidentiality, more dialogue than
investigation, and greater impartiality on the part of the Secretariat.
THE PRESIDENT.- Thank you, Mr Toshev. The next speaker is Mr Loutfi.
Mr LOUTFI (Bulgaria) congratulated Mr Atkinson and Mr Gjellerod
on their excellent report, but he wished also to stress that the monitoring procedure was
appropriate for many countries in central and eastern Europe. Monitoring of Bulgaria had
lasted three years and had been a catalyst in the democratic process.
The report referred to outstanding concerns. Those were not new
problems, but solutions had yet to be found. He hoped that Bulgaria would become a truly
democratic country with respect for human rights, national minorities, primacy of law and
political plurality. Texts stemming from the framework agreement should be implemented,
particularly those on protection of languages. He was convinced that Bulgaria had made the
right choice and that society had the strength to overcome difficulties.
THE PRESIDENT.- Thank you, Mr Loutfi. The next speaker is Mr Steolea.
Mr STEOLEA (Romania) paid tribute to the work of the
rapporteurs. The Assembly had to appreciate the enormous progress that Bulgaria had made
and her stabilising role in the region. The adoption of legislation that conformed with
the Council of Europe’s standards, especially in the media and legal system, was
particularly worth mentioning. A new Council on Ethnic and Democratic Questions had been
set up to protect national minorities. Progress had been made in reopening primary and
secondary schools in Sofia and reactivating places of worship.
Access to the media had to be guaranteed. The annexes to the report
analysed the issues of rebuilding the legislative system, ensuring an independent
judiciary, tackling social and economic problems and ensuring the rights of local
minorities. The report had reached good conclusions and had taken into account the
determination of Bulgarian colleagues to find solutions.
THE PRESIDENT.- Thank you, Mr Steolea. The next speaker is Mrs
Poptodorova.
Mrs POPTODOROVA (Bulgaria).- I find the report objective: it
tries to take into account both positive and negative developments along Bulgaria’s
uneasy path to democracy. That quality of the report is entirely to the credit of the two
rapporteurs. I subscribe to all the positive evaluations outlined in paragraph 1 of the
draft resolution. There has been considerable movement in the European direction and
towards Bulgaria’s membership of Nato. Bulgaria received an invitation in December to
start negotiations for European Union membership. I want to highlight the breakthrough in
Bulgaria’s relations with Macedonia.
That is all to the government’s credit. An unbiased reader of the
report and the draft resolution would note, however, that although progress has been more
visible in foreign policy and in some legal matters of general policy, problems arise in
areas involving the actual use and exercise of power, such as the judiciary, the media,
local government and civil administration.
We as politicians have not yet acquired the largesse politique that
brings about the democratic devolution of power. The deficiency is in the instinct and the
knowledge that is invariably needed to have more shared governance in society. A
deficiency in that instinct and knowledge has invariably led to an abuse of power,
regardless of the political hue of the majority. I myself belonged to a majority that had
a share in abusing the power that it disposed of.
I am afraid that Bulgaria is no exception to a similar general tendency
to be observed in most post-communist countries. The big question is, therefore, how we
should go about monitoring such countries to produce a stable and irreversible democratic
environment that will not be dependent on changeable political expediency.
As a member of the Monitoring Committee, and having taken part in a
series of discussions on several cases of monitoring, I have found that we stumble into
the same difficulty every time. We do not have a possible position between leaving the
monitoring procedure open or closing it altogether. I therefore support the decision of
the Monitoring Committee taken in relation to Bulgaria to note the situation in my country
and have a follow-up to the recommendations made by the Assembly one year after the
adoption of the resolution. Moreover, I urge the Monitoring Committee and the Assembly to
adopt this practice as a general rule.
Bulgaria is not in a situation of crisis. It is, however, a revealing
case showing how formal democracy does not equal practical, applied democracy. We shall
have an extremely difficult debate tomorrow, which will reveal once again not only the
difficulties in post-communist countries, but the lack of instruments to deal with them
more productively. I am convinced that the monitoring procedure should go beyond formal
criteria and be more concerned with democratic governance.
Distinguished members, we should be mindful of the enormous
responsibility that we have assumed by adopting the monitoring procedure as a rule of the
Assembly. We have that responsibility as rapporteurs, as committee members and as a
Parliamentary Assembly. I keep asking myself whether we succeed in standing above our
formal political bias, and whether we are in a position to abide by our principles, rather
than going against them to comply with a request from a political colleague to indulge his
or her political interest. When we have an answer to such questions, we will have a
smoother monitoring process.
The vote on Bulgaria is in the hands of members of the Assembly. It is
up to their moral and political integrity to decide on every matter that is brought before
the Assembly.
THE PRESIDENT.- Thank you. I call Mr Popovski.
Mr POPOVSKI ("The former Yugoslav Republic of Macedonia").-
I want to say a few words about the report and the situation in Bulgaria. I congratulate
the rapporteurs on producing a good report, although I must say at the outset that its
conclusions are not in accordance with the main part of the report.
Without repeating the text of the document, I believe that the decision
to lift the monitoring procedure in Bulgaria does not accord with what is stated in items
i to viii in section III. If the committee and the Assembly note that the government
influences the judiciary, the governing party influences the public media, the
implementation of minority rights is insufficient, there is corruption, local authorities
do not have an opportunity to operate, there is no legislation in some areas and there is
continuing police brutality, I do not see how it is possible for the rapporteurs to
recommend the lifting of the monitoring process. Nevertheless, I congratulate the
Bulgarians on the progress that they have made in many fields.
The rapporteurs note that there are already possible signs that there
has been inadequate implementation of minorities’ rights, mainly as regards
information and education in their mother tongue. It will be interesting to hear from the
rapporteurs whether there are other problems concerning minorities that are not stated in
the report - for example, the freedom of minorities to declare their ethnic origin openly
or to establish their own political organisations.
In this connection, I shall quote a sentence from a report by the
European Commission against Racial Intolerance, which states: "As regards Bulgarian
citizens wishing to express their ethnic Macedonian identity, the Commission notes that
several sources have reported that their right to peaceful assembly has been restricted on
several occasions."
It is also interesting that the report notes that ratification of the
framework convention of the Council of Europe has made no progress on minority rights in
Bulgaria. We are still waiting for that. In respect of minority rights, the monitoring
process should be extended because Bulgaria is still dealing with the legacy of the
previous system. It will need time, and also pressure from organisations such as the
Council of Europe, to enforce the changes that are needed.
Reading the report, one gets the impression that, after the initial
enthusiasm for democracy, the momentum has been lost and basic problems persist. I agree
with Mr Jaskiernia, who said that it is difficult to compare standards in different
countries. For example, the monitoring process in my country concerning the education of
minorities examined the higher education of Albanians in Macedonia, bearing in mind that
elementary and secondary schools exist. European standards demand that university degrees
should now be available in the Albanian language, but in Bulgaria the standard for
minority languages is not met even for elementary schools. What is the Council of
Europe’s standard for minority education?
THE PRESIDENT.- Thank you. The next speaker is Mr Pavlov.
Mr PAVLOV (Bulgaria).- I appreciate the enormous amount of work
done by the rapporteurs and entirely agree with their recommendation to terminate the
monitoring procedure. They objectively underline the major steps forward taken by Bulgaria
on the road to democracy. However, the concerns expressed by the rapporteurs seem to be
unbalanced and disproportionate. For example, their worries about the influence of the
governing parties over the judiciary are not justified and are not consistent with the
conclusions of the Venice Commission that the reform of the judicial system is in
accordance with the Constitution of Bulgaria and compatible with judicial independence.
The rapporteurs are worried also by the so-called sanctions against
journalists, but there are no sanctions against journalists in Bulgarian legislation.
There are sanctions against libel and slander which are applicable equally to all
Bulgarian citizens. Journalists are neither privileged nor discriminated against, and are
responsible before the law like anyone else. As to the fines for libel and slander, they
seemed to be exaggerated; but, after the president referred the article back to the
national assembly for further debate, a common agreement was reached to reduce the fines
considerably and limit them to a reasonable amount.
I would like to finish on perhaps the most important issue -
implementation of minority rights. I am proud to say that all the unsolved problems facing
Bulgaria and Macedonia - not just the linguistic problems - were cleared up by the joint
declaration signed by the prime ministers of both governments last February. The bilateral
declaration was approved by both the governments and the peoples of the two countries.
The rights of minorities, particularly on education and information in
their mother tongues, are guaranteed by the Bulgarian Constitution. Recent amendments to
the law on education made the study of mother tongues compulsory, giving people the
ability to choose a language according to ethnic origin. We have newspapers and radio
broadcasts in minority languages. The national television system will soon start to
broadcast programmes in minority languages. Even before ratification of the Framework
Convention for the Protection of National Minorities, the Bulgarian Government founded a
national council for minorities and launched a programme for integration of minorities
which is being successfully implemented in close co-operation with minority
non-governmental organisations. Representatives of minorities are involved at all levels
of the executive.
That is why I fully support the amendments proposed to the draft
resolution, and I ask you, distinguished colleagues, to support them too.
THE PRESIDENT.- Thank you Mr Popov. I call Mr Popescu.
Mr POPESCU (Ukraine) congratulated the rapporteur on his report
and the Bulgarian authorities on the many positive developments in their country. However,
there remained some unresolved issues. First, elections for mayors in small communities
needed to be fully democratised. Secondly, more recognition needed to be given to the
rights of minorities to mother tongue education, cultural identity and parliamentary
representation. Thirdly, social inequalities remained between different ethnic groups -
for example, unemployment among minorities was significantly higher than among native
Bulgarians.
THE PRESIDENT.- Thank you, Mr Popescu. I call Mrs Stoyanova.
Mrs STOYANOVA (Bulgaria).- I would like to express my
appreciation of the efforts of the two co-rapporteurs, Mr David Atkinson and Mr Henning
Gjellerod, and of their willingness to prepare an objective report on the dynamically
changing situation in my country, Bulgaria. I shall concentrate on paragraph 3.vi of the
draft resolution, in which Bulgaria is accused of dismissals of civil servants.
Comprehensive reform of our administration is being undertaken as part
of the Republic of Bulgaria’s ongoing democratic changes. The reform’s aims are:
the creation of a public administration that corresponds with administrations in the
European Union; an administration that responds to the needs of citizens; and the granting
of necessary guarantees and the creation of conditions in which civil servants may perform
their professional duties free from any political commitments or interference.
The reform is based on two new laws - the Law on Public Administration
and the Civil Service Act. A transitional period until the end of February has been
allowed for the efficient implementation of those laws. A further package of eight
subsidiary implementing acts will be adopted during that period. Since reform began, every
ministry has adopted its own statutory regulation and reduced its personnel. At the
Ministry of Foreign Affairs, the reduction affected technical personnel only and did not
reduce the number of diplomatic staff, nor is any reduction envisaged in the context of
the ongoing administrative reform.
At the same time, the transitional period is predicated on a change in
the present legal status of employment and a transition to fixed-term contracts. The
temporary nature of the contracts does not imply termination after their expiry, but stems
from the need to ensure an equal start and equal opportunities for all employees who apply
for or are appointed to different posts in the administration. Every employee will be
appointed to a post that corresponds to her or his qualifications and professional
experience.
I have a few words to say about paragraph 4.vii of the draft
resolution. Following ratification in 1995 of the European Charter of Local
Self-government, it has been noted that there is only one level of self-government under
the Bulgarian Constitution - the municipality, a territorial unit. As regards
regularisation, parliament adopted a new law for regional development, providing
mechanisms and instruments for that purpose. The law also introduces a new structure which
meets European standards - the so-called council for regional development. In every
region, mayors, the regional council and the governor create a partnership between local
and central government so that they may work together to solve local problems and make
plans. The regional governor is a government representative in the respective territory.
Bulgaria is facing negotiations for accession to the European Union,
which calls for strong efforts and new vision for our tasks and responsibilities. Only
consensus on our goals and actions and belief in the potential of our nation will help us
to meet the challenge of being an equal part of a democratic and prospering Europe.
THE PRESIDENT.- Thank you, Mrs Stoyanova. I call Mr Gürkan.
Mr GÜRKAN (Turkey).- I agree with the report’s conclusion
that the monitoring procedure for Bulgaria should be closed. Bulgaria is of particular
importance to Turkey. We have common interests which outweigh our differences. Every bit
of progress and every positive step that is taken in Bulgaria is good news for the Turkish
people.
I therefore welcome the positive and impressive progress made in
Bulgaria since the current government came to power in mid-1997. The report is right to
praise President Stoyanov and Prime Minister Kostov in person for their efforts and
the change of mentality that they have introduced in Bulgaria’s foreign relations.
Thanks to that change, Turkish-Bulgarian relations reached such a high level that even our
longstanding territorial dispute was eventually solved through negotiation. That is indeed
a rare commodity in the Balkans, and I hope that all our neighbours can learn a lesson
from it. In the Balkans and in the Caucasus, prejudice and intolerance towards " the
other" provoke ethnic tensions and consequently deepen instability.
I take this opportunity to make a few observations about the report
itself. It underlines the fact that although there have been changes for the better,
several obstacles have still to be overcome in the field of minority rights. Those
obstacles concern the Turkish minority, which today constitutes one-eighth of the
Bulgarian population and is the largest minority in the country. Its status goes back to
the 1925 Turkish-Bulgarian friendship treaty.
I was rather surprised to find that the report fails to address that
fact. While there are references to the status of minorities in general, and in particular
to the conditions of the Roma minority and even the Russian minority, there is only a
single reference in the whole report to the Turkish minority. It is not fair to make
recommendations regarding minorities without even mentioning the Turkish minority.
In that context, I draw the Assembly’s attention to a minor
material error in the report. Paragraph 74 states that "minority-language news
broadcasts on public television are grossly inadequate". That is a nice phrase, but
it falls short of describing the situation because there are as yet no minority-language
broadcasts on public television. The only minority-language news broadcasts on public
channels are the Turkish broadcasts on national radio for a total of half an hour a day.
Our Bulgarian colleagues have informed us that, in about three months, Turkish language TV
broadcasts will start. I wholeheartedly welcome that.
I point out that the person whom our rapporteurs call "the
representative of the Muslim religious community" is the ex-representative from the
communist era, who personally took part in the forced assimilation campaign against the
Turkish minority. The legitimate and current representative is someone else, but it seems
that our rapporteurs failed to meet him. That failure could explain the four separate
references to a so-called "rift within the Muslim religious community". Contrary
to paragraph 25 of the report, that rift was settled in October 1997 with an all-Muslim
conference, during which a representative recognised by all segments of society was freely
elected.
Much progress has been made in Bulgaria, in both democratisation and
minority rights. Instead of exaggerating and exploiting the deficiencies that still exist
and provoking minority members to act against the society in which they live, our duty is
to praise the progress that has been made. That understanding will lead to further
progress.
THE PRESIDENT.- Thank you, Mr Gürkan. I call Mr Martínez Casań.
Mr MARTÍNEZ CASAŃ, (Spain) thanked the rapporteurs and wished
to highlight their commitment to the development of democracy and human rights among the
newer members of the Council of Europe. The present Bulgaria was entirely different from
the Bulgaria of ten years ago: that had been made quite clear by the rapporteurs, who had
talked to a wide-cross section of Bulgarian society. He agreed with the report’s
conclusions and shared its opinions. The practical and political reforms in Bulgaria had
been very diverse. At the Helsinki Summit in 1999, the European Union had decided to start
the substantive accession process in respect of Bulgaria, and that meant that the
comprehensive Copenhagen criteria on the political conditions to be met before accession
had been fulfilled. If the European Union recognised Bulgaria as a fully democratic
country, it would be difficult for the Council of Europe not to do so.
However, the report mentioned some difficulties arising from alleged
political control of the judiciary. Surprisingly, the report had referred to that matter
when the Venice Commission itself had told the Council of Ministers that the judicial
reforms which had been introduced were not incompatible with Council of Europe standards.
The election of a public prosecutor by a judicial council was a perfect system from a
legal and constitutional point of view, and was in fact in use in many Council of Europe
countries. He did not share the concern of the rapporteurs about the lack of
implementation of constitutional rights of minorities. Progress had clearly been made, and
the government’s intentions were clear. Journalists were now writing in several
minority languages, and in two months the Turkish community was to have its own television
broadcasts. Integration should be ensured, but it was necessary to recognise financial
restraints. In conclusion, he said that the monitoring process should be lifted.
THE PRESIDENT.- Thank you, Mr Martínez Casań. I call Mr Kieres.
Mr KIERES (Poland).- Thank you for giving me the opportunity to
participate in the debate, Mr President. I promise not to abuse your patience. It is not
just a pleasure but very important for me to take part in this debate on the situation in
Bulgaria. As I said during the morning debate on Belarus, I take an interest in my
neighbouring central and eastern European countries, not only as a member of the
Parliamentary Assembly, but as a vice-president of the Congress of Local and Regional
Authorities of Europe. I was invited to a conference in Bulgaria two years ago on local
and regional authorities. I congratulate the rapporteurs on their report, which allows me
to compare the current situation with what I saw then.
Mr Jaskiernia asked about the purpose and the results of the monitoring
procedure. I asked the same question at the congress two years ago, when we considered the
problems of regionalisation and the democratisation not just of the central authorities
but of those regional bodies that most affect the ordinary citizen.
Two years on, the progress may not be spectacular, but there have been
visible advances. The rapporteurs noted that Bulgaria has regions. They may not have
directly elected bodies, but that regionalisation is a significant improvement on what I
saw two years ago. I have acted as an expert on the Bulgarian Parliament and given my
opinion on the state of affairs. The new arrangements are not perfect, but the situation
is positive. There are some criticisms to be made of the Bulgarian authorities, but,
taking a broad view of the Bulgarian political scene, the country is dealing with its
problems.
I congratulate the rapporteurs and, particularly, the Bulgarian people
and authorities. Bulgaria will be a strong member of the Council of Europe and will make a
positive contribution.
THE PRESIDENT.- Thank you, Mr Kieres.
Since we started a few minutes late, I have allowed a little extra time
for the debate, but I must now interrupt the list of speakers.
I remind you that members who are on the list and present in the
Chamber but who have not been called may submit their speeches in typescript to the Table
Office within twenty-four hours of the end of the debate for publication in the official
report.
Rapporteurs replying to the debate have a maximum of four minutes to
share between them. I call Mr Gjellerod.
Mr GJELLEROD (Denmark).- The monitoring procedure is a political
process. The Monitoring Committee spent three and a half hours debating the report. That
substantial debate has continued today, and I hope that it will carry on in Bulgarian
society, because such serious discussions are worth having.
I shall comment only on the minority issues, to which many speakers
have referred. Implementing the Framework Convention for the Protection of National
Minorities is a long process in any country. We advise the Committee of Ministers to
follow up our recommendations, particularly those on minority rights. We have initiated a
process, but we have not completed the implementation of the framework convention. We have
noted the promises made by the Bulgarians about television and radio programmes in
minority languages. Mr Atkinson will respond on some of the other issues.
THE PRESIDENT.- Thank you, Mr Gjellerod. I call Mr Atkinson.
Mr ATKINSON (United Kingdom).- I thank all those who have
congratulated us on our report. Mr Surján kindly said that we had made a major
contribution to reform in Bulgaria. The government seemed to announce a sudden rush of
reforms before each of our four visits. The Bulgarian media dubbed us the Viagra of
Bulgarian democracy.
Many speakers have expressed concern about the so-called purge of civil
servants. It was difficult for us to be objective on that, because every government has
the right to reduce the number of civil servants it employs, and thus the cost to the
taxpayer. However, we agree that the recent introduction of two-month contracts is
contrary to European norms. We have insisted that anyone who is dismissed should be able
to appeal on the grounds that the dismissal was unfair and that those affected should be
properly compensated and pensioned.
I should like to point out to Mr Elo that the reason why no opposition
candidates were chosen for the judiciary was that none came forward. We do not know
whether that was because of a boycott or a lack of candidates of merit. In response to Mr
Gürkan, I would like to say that we did not meet the leaders of the alternative Muslim
community because they did
not turn up for the meeting that we had arranged.
In Mr Jaskiernia’s perceptive analysis of our report, he rightly
pointed out the contradiction between our clear recommendation to stop the monitoring
procedure in Bulgaria and our outstanding concerns on some crucial issues. We acknowledge
that the government has responded to those concerns and has put in place new reforms, but
it takes time for reforms to be effective and we shall have to wait a long time before we
can say that the proof of the pudding is in the eating. Since our last visit in December,
the government has made a new statement to the Bulgarian Parliament announcing further
reform, in preparation for its negotiation with the European Union. We are encouraged by
that.
Mr Jaskiernia also asked why we recommended the continuation of a
dialogue, but that point will be covered by the Chairman. In conclusion, I wish to thank
the secretariat for the considerable work that Guy Dufour has done behind the scenes, and
Henning Gjellerod for being part of the great team that has spent the past three years on
the monitoring of Bulgaria.
THE PRESIDENT.- Does the Chairman wish to speak?
Mr MOTA AMARAL (Portugal).- May I add my compliments to the many
that have been paid to the rapporteurs and to the secretariat on the work done by the
Monitoring Committee? We all know from experience how hard their task is, but we are
building a doctrine and proving how useful our procedure is to the Council of Europe.
Every country that has experienced the monitoring procedure has made serious progress in
implementing the standards of the Council of Europe in regard to the rule of law and
democratic institutions. That is evidence of the usefulness of our work. We shall continue
that work in all the countries that we are monitoring.
In Bulgaria, substantial progress has been made, but the country faces
a difficult transition that includes institutions, and, more important, mentalities. Much
work is being done with the democratic authorities in Bulgaria and we must support their
efforts. The committee has asked me to provide an information report within the year on
the continuing dialogue so that we can see how the situation is evolving in Bulgaria. I
will do that and I hope that I will be able to reach positive conclusions.
THE PRESIDENT.- The debate is now closed.
Ten amendments have been tabled to the draft resolution and one
amendment has been tabled to the draft recommendation.
They will be taken in numerical order.
I remind you that speeches are limited to one minute.
We come now to Amendment No. 1, which is, in the draft recommendation,
at the end of paragraph 1.xii, add the words:
"and removal of 46 other licensing regimes".
I have received two oral sub-amendments, the first of which is, after
the words "46 other", insert the words "permit and".
In my view, the oral sub-amendment meets the criteria of Rule 34.
Is there any opposition to the sub-amendment being debated?…
I call Mr Atkinson to support the first oral sub-amendment.
Mr ATKINSON (United Kingdom).- The oral sub-amendment would
improve the accuracy of the words in the amendment because, although forty-six licensing
regimes have been removed - we welcome that - the words "permit and" have also
been removed.
THE PRESIDENT.- Does anyone wish to speak against the oral
sub-amendment?…
That is not the case.
What is the opinion of the mover of the amendment?
Mr Van der LINDEN (Netherlands).- I agree.
THE PRESIDENT.- Clearly, the committee is in favour of the oral
sub-amendment. I shall now put the oral sub-amendment to a vote by show of hands…
The oral sub-amendment is adopted.
The second oral sub-amendment is from Mrs Poptodorova, which proposes
to delete the word "regimes" and insert "regulations out of a total of
268".
In my opinion, the oral sub-amendment meets the criteria of Rule 34.
Is there any opposition to the sub-amendment being debated?…
That is not the case.
I call Mr Poptodorova to support the oral sub-amendment.
Mrs POPTODOROVA (Bulgaria).- It is only the lack of inside
information that prevented those who tabled the amendment from adopted this wording.
Regimes are usually the subject of a law, and I hope that there are enough legal experts
and jurists in the Hemicycle to know that. No such amendment or change of law has reached
the Bulgarian Parliament. What have been changed - I welcome this - are the regulations
adopted at ministerial level. That is why, for the sake of legal and juridical position,
and faithfulness to the actual position in Bulgaria, I suggest that we adopt the word
"regulations". That was also suggested by a member of the Monitoring Committee.
In order to put the forty-six changes into context, I also suggest that
we add "out of a total of 268" to give the complete picture.
THE PRESIDENT.- Does anyone wish to speak against the oral
sub-amendment?…
That is not the case.
What is the opinion of the mover of the amendment?
Mr Van der LINDEN (Netherlands).- I cannot personally count the
268 regulations and it is unusual to include such information without verification. I
think that it would be better to stick with the original text, as adopted by the
committee.
THE PRESIDENT.- What is the opinion of the committee?
Mr ATKINSON (United Kingdom).- We welcome the oral sub-amendment
because it clarifies the situation and reveals that an excessive number of regulations
remains to be removed. We ask the Assembly to approve the oral sub-amendment.
THE PRESIDENT.- The oral sub-amendment is not accepted by the mover of
the amendment, but it is supported by the committee.
Mr Van der LINDEN (Netherlands).- The oral sub-amendment is
accepted not by the committee but by the rapporteur.
THE PRESIDENT.- I ask for the view of the committee. Is Mr Van der
Linden correct?
Mr MOTA AMARAL (Portugal).- The problem is that oral
sub-amendments cannot be debated by the committee, because they are presented in the
plenary session. The rapporteurs agree to the oral sub-amendment, but it was not debated
by the committee.
THE PRESIDENT.- Thank you. The sub-amendment is not supported by
Mr Van der Linden but the rapporteurs have recommended that you vote for
it.
I shall now put the sub-amendment to the vote by a show of hands…
The oral sub-amendment is adopted.
THE PRESIDENT.- Does anyone wish to speak against the amendment, as
amended?…
That is not the case.
What is the opinion of the committee?
Mr MOTA AMARAL (Portugal).- The committee voted for the
amendment as presented.
THE PRESIDENT.- I shall now put the amendment, as amended, to the vote
by a show of hands…
Amendment No. 1, as amended, is adopted.
We come to Amendment No. 2, which is, in the draft resolution,
leave out paragraph 3.i.
I call Mr Van der Linden to support the amendment.
Mr Van der LINDEN (Netherlands).- Most of the prosecutors are
the same as the ones before the political change. They cannot be removed from post. It is
strange to allude to the fact that the prosecutors are not independent, as in the
United Kingdom and Poland the Ministers of Justice are directly responsible. The
committee was in favour of the amendment.
THE PRESIDENT.- Does anyone wish to speak against the amendment?…
I call Mr Kirilov to speak against the amendment.
Mr KIRILOV (Bulgaria).- The main focus is on the influence
exercised over the membership of the Supreme Judicial Council, which was changed
prematurely. That happened immediately before the election of the prosecutor. It is widely
accepted that the statement in the report corresponds to the reality in Bulgaria.
THE PRESIDENT.- What is the opinion of the committee?…
Mr MOTA AMARAL (Portugal).- The committee voted by a majority in
favour of the amendment.
Mr ATKINSON (United Kingdom).- Will you be seeking the opinion
of the rapporteurs, Mr President?
THE PRESIDENT.- No, there is no provision for that in the procedure. I
noticed that you raised your hand earlier, but I saw Mr Kirilov first.
I shall now put the amendment to the vote by a show of hands…
Amendment No. 2 is adopted.
We come to Amendment No. 3, which is, in the draft resolution, at the
end of paragraph 3.iii, add the words: "through electronic media".
I call Mr Van der Linden to support the amendment.
Mr Van der LINDEN (Netherlands).- The amendment is reasonable
and needs no further explanation.
THE PRESIDENT.- Does anyone wish to speak against the amendment?…
That is not the case.
What is the opinion of the committee?
Mr MOTA AMARAL (Portugal).- The committee voted in favour.
THE PRESIDENT.- I shall now put the amendment to the vote by a show of
hands…
Amendment No. 3 is adopted.
We come to Amendment No. 4, which is, in the draft resolution,
paragraph 3.iv, to delete the words, "excessive licensing".
I call Mr Van der Linden to support the amendment.
Mr Van der LINDEN (Netherlands).- Having adopted Amendment No.
1, it is logical to delete the words as in the amendment.
THE PRESIDENT.- Does anyone wish to speak against the amendment?…
I did see you first this time, Mr Atkinson.
Mr ATKINSON (United Kingdom).- In Amendment No. 1, we
acknowledged that there remain 268 licensing regimes. We regard that number as excessive.
We urge the Assembly to reject the amendment.
THE PRESIDENT.- What is the opinion of the committee?
Mr MOTA AMARAL (Portugal).- The committee voted against the
amendment.
THE PRESIDENT.- I shall now put the amendment to the vote by a show of
hands?…
Amendment No. 4 is rejected.
We come to Amendment No. 5, which is, in the draft resolution,
paragraph 3.viii, after the word "continuing", insert: "cases
of".
I call Mr Van der Linden to support the amendment.
Mr Van der LINDEN (Netherlands).- It is necessary to add the
words in the amendment, or the sentence could be taken to refer to all police actions.
THE PRESIDENT.- Does anyone wish to speak against the amendment?…
That is not the case.
What is the opinion of the committee?
Mr MOTA AMARAL (Portugal).- The committee is in favour.
THE PRESIDENT.- I shall now put the amendment to the vote by a show of
hands…
Amendment No. 5 is adopted.
We come to Amendment No. 6, which is, in the draft resolution,
paragraph 4.iv, after the words "the rights of ", insert: "the persons
belonging to".
I call Mr Van der Linden to support the amendment.
Mr Van der LINDEN (Netherlands).- The Council of Europe’s
practice is to speak of personal rights, so the addition of those words is appropriate.
THE PRESIDENT.- Does anyone wish to speak against the amendment?…
That is not the case.
What is the opinion of the committee?
Mr MOTA AMARAL (Portugal).- The committee is in favour.
THE PRESIDENT.- I shall now put the amendment to the vote by a show of
hands…
Amendment No. 6 is adopted.
We come to Amendment No. 7, which is, in the draft resolution,
paragraph 4.vi, replace the words "efforts to combat corruption and police
brutality" by:
"pursuit of their efforts aimed at the eradication of corruption
and the continual combating of cases of police brutality".
I call Mr Van der Linden to support the amendment.
Mr Van der LINDEN (Netherlands).- The amendment is designed to
bring the resolution more into line with the opinion of the European Union.
THE PRESIDENT.- Does anyone wish to speak against the amendment?
I call Mr Atkinson to speak against the amendment.
Mr ATKINSON (United Kingdom).- As Mr Van der Linden has just
pointed out, the amendment is based on a report of the European Union, but our form of
words in the report is based on the judgment of this Assembly’s rapporteurs. We ask
you to accept and trust our judgment. The point is that the new supreme prosecutor, Mr
Filshev, has only started on his battle to eliminate corruption in Bulgaria. The previous
Interior Minister, Mr Bonev, had a report on police brutality that was never brought
before Parliament, so we still do not know the outcome. We prefer the stronger form of
words in the report to remain until we are convinced that the battle against corruption
and police brutality in Bulgaria has been won.
THE PRESIDENT.- What is the opinion of the committee?
Mr MOTA AMARAL (Portugal).- The committee rejected the
amendment.
THE PRESIDENT.- I shall now put the amendment to the vote by a show of
hands…
Amendment No. 7 is rejected.
We come to Amendment No. 8 which is, in the draft resolution, leave out
paragraph 4.vii.
I call Mr Van der Linden to support the amendment.
Mr Van der LINDEN (Netherlands).- The amendment refers to the
return of property to churches and the Muslim community -
THE PRESIDENT.- Order. I do not understand what you are saying.
Mr Van der LINDEN (Netherlands).- We are dealing with Amendment
No. 9, are we not?
THE PRESIDENT.- No, Amendment No. 8.
Mr Van der LINDEN (Netherlands).- Amendment No. 8 was withdrawn
in the committee.
THE PRESIDENT.- I have not been told that, nor has the Table Office.
The committee is not the Assembly.
We come to Amendment No. 9, which is, in the draft resolution,
paragraph 4.viii, after the word "Muslim" insert the word:
"religious".
I call Mr Van der Linden to support Amendment No. 9.
Mr Van der LINDEN (Netherlands).- The text refers to the return
of property to churches and the Muslim community, but does not mention the return of
community to the Orthodox, Catholic or other communities. In our view, it is better to
specify the return of property to the churches and the Muslim religious community.
THE PRESIDENT.- Does anyone wish to speak against the amendment?
I call Mr Atkinson to speak against the amendment.
Mr ATKINSON (United Kingdom).- We are putting in unnecessary
words. The text refers to the Muslim community. What is "Muslim" if not
religious? Why specify the Muslim religious community?
THE PRESIDENT.- What is the opinion of the committee?
Mr MOTA AMARAL (Portugal).- The committee voted against the
amendment.
Mr Van der LINDEN (Netherlands).- The same words were used under
-
THE PRESIDENT.- If you have a point of order, Mr Van der Linden, I will
hear you, but we cannot continue the debate. This is not the committee.
I shall now put the amendment to the vote by a show of hands...
Amendment No. 9 is rejected.
We come to Amendment No. 10 which is, in the draft resolution,
paragraph 4.ix, replace the words "sanctions against journalists" by:
"sanctions for libel and slander".
I call Mr Van der Linden to support Amendment No. 10.
Mr Van der LINDEN (Netherlands).- In our view, it is better to
state specifically that the sanctions are for libel and slander. That makes matters
clearer.
THE PRESIDENT.- Does anyone wish to speak against the amendment?
I call Mr Atkinson to speak against the amendment.
Mr ATKINSON (United Kingdom).- We want to keep in the word
"journalists" because they are in the front line in maintaining freedom of the
press and freedom of information. Yes, we welcome the government’s response to our
concerns and to transfer the sanctions for libel from criminal to civil procedure.
However, the threat is primarily against journalists, which is why we want the word
"journalists" to remain in the text.
THE PRESIDENT.- What is the opinion of the committee on the amendment?
Mr MOTA AMARAL (Portugal).- The committee rejected the
amendment.
THE PRESIDENT.- I shall now put the amendment to the vote by a show of
hands...
Amendment No. 10 is rejected.
We will now proceed to vote on the whole of the draft resolution, as
amended, contained in Document 8616.
The draft resolution, as amended, is adopted.
We now move to consider the draft recommendation, to which one
amendment has been proposed.
Amendment No. 11 reads, in the draft recommendation, at the end of
paragraph 1, add: "in which it considers the current monitoring procedure as closed.
It will pursue its dialogue with the Bulgarian authorities on the issues referred to in
paragraph 4 of that Resolution, or on any other issues arising from the obligations
of Bulgaria as a member state of the Council of Europe, with a view to reopening the
procedure in accordance with Resolution 1115 (1997) if further clarification or enhanced
co-operation should seem desirable".
I call Mr Atkinson to support Amendment No. 11.
Mr ATKINSON (United Kingdom).- This is a technical amendment.
The Table Office told us that the wording of paragraph 1 of the draft recommendation must
reflect what is stated in paragraph 5 of the resolution that we have just passed. The
amendment does that.
THE PRESIDENT.- Does anyone wish to speak against the amendment?...
That is not the case.
What is the opinion of the committee on the amendment?
Mr MOTA AMARAL (Portugal).- The committee was in favour of the
amendment.
THE PRESIDENT.- I shall now put the amendment to the vote by a show of
hands...
Amendment No. 11 is adopted.
We now proceed to vote on the whole of the draft recommendation, as
amended, contained in Document 8616.
The draft recommendation, as amended, is adopted.
4. Change to arrangement of
business
THE PRESIDENT.- The President of the Assembly is proposing a change to
the arrangements for our sittings tomorrow. Rather than two separate debates on the
conflict in Chechnya and on the challenged credentials of the national delegation of the
Russian Federation, we might have a joint debate on these two subjects. The timing stays
the same - debate and votes between 10 a.m. and 12 noon, then from 3 p.m. until
5 p.m.
The President of the Assembly proposes that, in the afternoon, we deal
with any votes in the order indicated in the original agenda - first, on the
recommendation contained in the Political Affairs Committee’s report on the Chechen
conflict and secondly, on the conclusions of that committee concerning the credentials of
the Russian delegation.
I believe that those arrangements will facilitate our work.
Is this proposal agreed?…
It is agreed.
(Mr Micheloyiannis, Vice-President of the Assembly, took the Chair
in place of Mr Davis.)
5.
International adoption: respecting children’s rights
THE PRESIDENT (Translation).- The next item of business this afternoon
is the debate on the report on international adoption: respecting children’s rights
presented by Mr About on behalf of the Social, Health and Family Affairs Committee,
Document 8592, with opinions presented by Mrs Wohlwend, on behalf of the Committee on
Legal Affairs and Human Rights, Document 8626, and Mrs Vermot-Mangold, on behalf of the
Committee on Migration, Refugees and Demography, Document 8600.
The list of speakers closed at 12 noon today. Twenty-two names are on
the list and two amendments have been tabled. As we agreed earlier, we will interrupt the
list of speakers at about 6.35 p.m. to allow time for the reply and the votes and the
conclusion of proceedings at 6.45 p.m.
I call Mr About to present his report.
Mr ABOUT (France) said that a child had rights: for example, the
right to be loved by its next of kin. A child was not a commodity, a good, a toy or a pet.
A child had no price, although in the United States children were openly put up for
adoption for sums as much as $ 25 000. International adoption practices had to
make it possible for a child to find a mother, a father and an environment, which provided
all its rights - and nothing else. It should not enable parents to find a child at
any price: this was the central issue behind international adoption, which had to be
addressed.
Increasingly, European states and the United States had resorted to
profit from families of developing countries. There were increased illegal transactions in
adoption. International adoption had become a market where the child was a good and there
was a flow of children from poor to rich countries. The situation was worsening.
After twenty years he was speaking out on the disastrous effects of
those practices, including the psychological trauma and stigma affecting children and
other related problems. First and foremost, adoption had to be a solution for the child
under the principles of the Hague Convention. Council of Europe member states had to
ratify the convention. In host countries, parents had to be prepared for adoption and
there should be monitoring of foreign adoption. The Council of Europe had to promote
child-favourable policies. There had to be a clear and positive will to promote the rights
of the child.
THE PRESIDENT thanked Mr About and called Mrs Wohlwend to present the
opinion of the Committee on Legal Affairs and Human Rights.
Mrs WOHLWEND (Liechtenstein) said that the Committee on Legal
Affairs and Human Rights thought that the report was important and balanced. All member
states of the Council of Europe had to meet the requirements of the Hague Convention. The
first priority had to be protection of the rights, well-being and dignity of the child.
The Committee on Legal Affairs and Human Rights urged that the topic of sexual orientation
be taken on board. It had organised a meeting on homosexuality and had had a long
discussion on the adoption of children by same-sex parents. Research had showed that
children adopted by same-sex parents showed no dysfunctional developments. Children from
homosexual families showed no greater tendency to be homosexual than those from bisexual
families. The 1999 High Court ruling in Portugal on unequal treatment was considered a
violation of Articles 8 and 14 of the convention. Same-sex couples had to be offered
the same rights and opportunities in adoption.
If, in principle, the Assembly agreed that homosexual men and women had
the same rights, the question arose as to why same-sex couples could not offer a child the
same opportunities as a bisexual couple. She had therefore proposed an amendment.
THE PRESIDENT thanked Mrs Wohlwend and called Mrs Vermot-Mangold
to present the opinion of the Committee on Migration, Refugees and Demography.
Mrs VERMOT-MANGOLD (Switzerland) said that everyone had heard of
successful adoption stories, but there were many other cases of children being
unprotected. The adoption of children from poor countries had increased and the figures
for international adoption were growing faster than those for national adoption. That was
a problem if there was an illegal trade in children. International adoption had to be
prevented from being governed by market economy rules and the mafia prevented from trading
children for profit. The risks of trafficking greatly increased in times of war, when
children were not registered, and they were often abandoned.
The 1989 UN Convention on the Rights of the Child recognised
international adoption as an acceptable measure where it was not possible for a child to
be cared for either at home or by the state. The state was responsible for granting to
children the right to identity, but often that did not happen. The rights of the child
should, in any event, be predominant at all times.
On behalf of her committee, she supported the recommendations in the
report. The committee had called for the revision of the Council of Europe convention of
November 1997 to include particular measures for the care of children at risk of becoming
"stateless" in their country of adoption. In particular, children whose adoption
collapsed before its conclusion needed extra protection.
THE PRESIDENT (Translation).- Thank you, Mrs Vermot-Mangold. I call Mr
Telek, speaking on behalf of the European Democratic Group.
Mr TELEK (Turkey).- I congratulate our rapporteur, Mr About, on
a comprehensive report on the sensitive issue of respect for children’s rights in
international adoption procedures.
May I recall the Council of Europe’s valuable achievements in
human rights? With four specific European conventions, our organisation is the main
standard-setting organisation in that field. The Parliamentary Assembly greatly
contributed to the Council of Europe’s major role in improving children’s rights
by adopting various recommendations and resolutions. Those instruments cover large areas,
such as children’s social protection, health, legal affairs and education.
The issue that we discuss today is of the utmost importance for
children’s well-being. You can grant children short-term happiness by giving them
toys or material opportunities, but, however great your affection, you cannot give them
the affection of their parents and the warmth of their families. That is why the
government of my country assists families who cannot afford to look after and bring up
their children, thus enabling those children to remain in the warmth of their family.
International adoption must conform with well-established legal and
ethical rules. We support the draft recommendation as regards the strict implementation of
the ethics and rules in the Hague Convention on Adoption, as well as other relevant
international instruments.
We believe that it is necessary to foster co-operation between states
to combat the trafficking of children and to eliminate criminal networks and all types of
abuse in international adoption. Rapid developments in medicine will soon mean that every
organ of the human body can be transplanted. Children, with their young and healthy
organs, would be in even more danger then. That threat to the lives and health of children
should have been stressed in the report.
We have to make sure that the principle of doing what is in the best
interests of children prevails in international adoption procedures. As the rapporteur
rightly stated, the purpose of those procedures must be to provide children with parents
in a way that respects their rights.
THE PRESIDENT (Translation).- Thank you, Mr Telek. I call
Mr Symonenko.
Mr SYMONENKO (Ukraine), speaking on behalf of the Group
of the Unified European Left, objected to international adoption becoming a market-type
issue. Double standards were applied by rich western countries which, having demanded
transition, then condoned the "export" of children from the same countries. He
purposefully referred to the "export" of children rather than using the phrase
"international adoption", because of his belief that families in transition
countries were actually able to care for their own children and that the export of
children represented a large-scale breach of their human rights.
In Ukraine, for example, mothers were becoming surrogates in order to
earn money to feed their remaining children. Ukraine had become a market for the
international adoption of children, involving at least 1 000 a year. Better
protection was needed for children and the trade in children had to be prevented from
becoming an organised business. He was therefore in favour of the recommendations in the
report.
THE PRESIDENT (Translation).- Thank you, Mr Symonenko. I call
Mrs Cryer, speaking on behalf of the Socialist Group.
Mrs CRYER (United Kingdom).- At the start of the new millennium,
all parliamentarians are presented with an enormous number of problems by the
globalisation of many aspects of our lives, including trade, industry, tourism and crime.
We are also belatedly starting to recognise the globalisation of the family through
adoption or marriage. At least 15% of my constituents or their parents come from
Bangladesh or Pakistan, so I am well aware of the problems that sometimes arise in the
wake of marriages arranged between young people from the same race and religion who have
very different social and cultural backgrounds. The breakdown of such marriages and
relationships frequently results in the abduction of a child or children. The report does
not deal with that issue directly, but abduction can become a form of illegal adoption,
without any of the checks involved in formal and legalised adoption.
To illustrate the often tragic realities of abduction and illegal
adoption and to give the debate a human face, I shall talk about three cases brought to my
attention by parents who have sought my help. The first involves a woman who was brought
into the United Kingdom as a wife by a male constituent. When their daughter was two years
old, he took his family back to Pakistan for what he said was a family holiday, then
promptly returned to the UK with his daughter, leaving an extremely distressed mother
behind. He had not troubled to formalise his wife’s right to remain in the UK, so she
had no right of entry. The father and the child had disappeared into the West Yorkshire
Asian community without trace. It is almost certain that, in keeping with Asian
traditions, the father will not be bringing up his daughter alone, but will pass her on to
relatives to raise. Those relatives may be wholly unsuitable and will not have been
carefully vetted by the appropriate authority.
My second case is similar, involving a couple who were not married.
They had a child, but their relationship broke down following violence. The mother was
awarded custody by the courts. Eventually, the father, despite undertakings to the
contrary, waylaid the mother and the child. After spraying a substance into the mother's
eyes, he removed the little boy with the help of friends and a getaway car. Neither father
nor son has been seen since that day several months ago. The mother and her family believe
that the father is not caring for the child alone and could be with an extended family,
possibly in Germany. The police have pursued inquiries in Pakistan, so far to no avail.
My third case is totally different. A young lady asked for my help in
bringing her baby son into the UK. She told me an incredible story of how, when eight
months pregnant, she had visited her family in Pakistan, leaving behind her daughters. She
gave birth in Pakistan and, since she had no entry documents for the child, left him with
relatives while she returned to the UK. I was not judgmental of my constituent, but passed
on to the UK Foreign Office a request for entry clearance for the infant. The Foreign
Office has reasonably asked for a DNA test to prove the parentage. I am almost certain
that the UK family was attempting to sidestep our adoption laws by passing a baby off as
their own. If the family return to me for advice on inter-country adoption, I shall guide
them through what is required.
There is no quick-fix solution to the problem of abduction and illegal
inter-country adoption, particularly when it results from naturally occurring
environmental disasters or man-made violence between communities or countries. The rights
of each child set out in the 1989 United Nations convention must be paramount. None of us
would disagree with the idea that it is better for children without parents to be adopted
in their own country, but when that is not possible it is much better for them to be
adopted by approved parents - or an approved parent - from outside the country than to
spend their crucial early years in an institution.
The 1993 Hague Convention on Adoption also deals with abduction. Last
July, the United Kingdom Parliament approved the Adoption (Inter-country Aspects) Act
1999, which will enable our government to ratify the convention in about twelve months. I
regret that neither Pakistan nor Bangladesh - the two countries most relevant to my work
as a constituency member of parliament - are likely to follow our example.
I commend Mr About’s report, as amended by Mrs Vermot-Mangold and
Mrs Wohlwend, and agree with its findings,.
THE PRESIDENT (Translation).- Thank you, Mrs Cryer. I call Mr Surján,
speaking on behalf of the European People’s party.
Mr SURJÁN (Hungary).- At first sight, international adoption
appears to be an interesting and important sign of solidarity, in which children in danger
are protected by volunteers who are ready to give them food and love. In theory, we should
support international adoption.
I am not familiar with the history of international adoption, but after
the first world war, a lot of children from the defeated countries, which were in a
terrible state, were invited to western countries, particularly the Benelux states. Even
after the second world war, South American countries did the same, inviting children for a
while, to feed them and reconstitute some kind of family. After half a year or so, they
went back home. That is not a real adoption, but it is a sign of international solidarity,
which is also very important.
What happened later? Instead of that fantastically positive sign of
international solidarity, we have an adoption business. Some people declare that they have
the right to have children and that they must be given one. The report describes the
terrible mistakes that arise from such behaviour. It is right to say that the adoption
business should be stopped, because it should not be subject to the market.
We should learn from one of our member states, Turkey. I do not want to
go into details, because we will debate the effects of the earthquake on Friday, but it is
a positive sign that, after umpteen deaths, there are only twenty-five children for
adoption. That means that the extended families have taken over the responsibility for the
children instead of waiting for them to be adopted. That is natural behaviour. Turkey is
not one of the richest countries in the world - it is not even in Europe - so the wealth
of the family is its happiness.
The argument is not even that living standards are better in one
country than in another. I used to be the Minister with responsibility for social affairs
and I was under enormous pressure. Even ambassadors were knocking at my door and
pressurising me to produce children for international adoption. Such behaviour is
completely wrong. We should start with the fact that children have the right to have
parents but, if that is not possible, they have the right to learn their mother tongue and
live in their home country near their relatives.
The EPP Group fully supports the report, but rejects the suggestion
that homosexuals should have the chance to adopt children.
THE PRESIDENT (Translation).- Thank you. I call Mrs Poptodorova.
Mrs Poptodorova is not here, so I call Mr Robol.
Mr VOLCIC (Italy) said that Mr Robol was not present, but that
he would like to speak in his place.
THE PRESIDENT (Translation).- No; there is a procedure to be followed.
I call Mrs Herczog.
Mrs HERCZOG (Hungary).- As the only woman member of the
Hungarian delegation, I shall say a few words about the situation in Hungary. We have an
old law on adoption, dating from 1957. We modified it in 1991 after the New York
Convention on the Protection of Children. The law states that the state institution has to
control the adoption process and grant rights to children. It allows international
adoption only if the child is growing up in an institution and it is impossible to give
him or her back to the natural parents or to find adoptive parents in Hungary. It is
strictly prohibited for anyone to earn any profit on adoption, including the parents,
institutions or clerks.
In 1999, we had 850 adoptions in Hungary, seventy of which were
international adoptions - nine of the children did not have Hungarian nationality. To be
honest, we must also talk about the fact that, in the past couple of years, as in other
countries, several international adoptions became judicial matters. Those cases prove that
children, parents and adoptive parents can be the victims.
I am happy with paragraph 5 of the draft recommendation, which calls
for the Committee of Ministers to encourage countries to ratify the Hague Convention on
Adoption if they have not done so. It has not yet been ratified in Hungary, and I hope
that ratification will be accelerated, because the NGOs working on behalf of women have
fought for it for a long time.
As a woman and a mother of three, I believe that all those involved -
children, parents and adoptive parents - have rights and needs. Therefore, we need to
draft a regulation that will satisfy those rights and needs. Children need and have a
right to the best possible conditions for their childhood. The original parents have the
right to make their own responsible decisions about their children. Adoptive parents have
a need and a right to have children. In most cases of real adoption, not criminal
adoption, the adoptive parents cannot have their own children. However, we should make it
impossible to treat children as goods for sale.
THE PRESIDENT (Translation).- Thank you. I call Mr Birraux.
Mr BIRRAUX (France) congratulated the rapporteur on the humanity
of his report. International adoption was a growing phenomenon throughout Europe, because
of the ageing population and the decrease in the number of unwanted children, through
modern contraceptive methods. There were 5 000 adoptions in France last year, and
3 500 of these had been international adoptions. There was no right to a child at any
cost. It was important not to confuse wishes with rights. A child was not a good to be
traded, but there had been occasions when children had been traded against the wishes of
their parents.
The 1993 Hague Convention had been signed by France. It was appropriate
that the organisation should back the re-ratification drive, which was focused on the
interests of the child. What was needed was the rediscovery of the model family with a
loving mother and father. Child psychology specialists agreed on that. The risk that this
model would not be found was much greater in respect of international adoption, a fact
which was sometimes forgotten.
The adoptability of the child had to be taken into account.
International adoption should be the last resort to be used only if national adoption or
fostering arrangements could not be found. He reminded the Assembly of the definition of
adoption given in the report.
THE PRESIDENT (Translation).- Thank you, Mr Birraux. The next speaker
is Mr Hancock. As he is not here, I call Mr Polozani. He is not here either, so I
call Ms Ninoshvili.
Ms NINOSHVILI (Georgia) said people willing to adopt should not
be considered guilty. Normal legal procedures for adoption were too long and too costly.
The Council of Europe was responsible for an awareness-raising campaign to highlight the
dangers of international adoption. Uncertainty in adoption procedure led to disturbance
for the child. International adoption being run on market principles was unacceptable.
In the case of Georgia, there had been a rise in the number of
abandoned babies and a tendency for them to be taken from the country. She thanked the
rapporteur for the proposals and was concerned about ill and handicapped children. For
such children, international adoption could be seen as a generous solution, but the
consequences could be devastating. Ill or disabled children could be abandoned, but
adopting them abroad meant long-term neglect in the development of the health care
infrastructure in the country of origin. It was better for ill or disabled children to be
taken care of in their own countries. It was also better for older children to be adopted
nationally. In the transition to a market economy, individuals should not be uprooted.
Wealth creation was not just about gross domestic product but about standards of living.
THE PRESIDENT (Translation).- Thank you, Ms Ninoshvili. The next
speaker is Mr Rizzi.
Mr RIZZI (Italy) said that the principle of international
adoption was to allow a child to find a mother and father, but a child was not able to
weigh up his rights, so society had to be responsible. The Council of Europe had to defend
the rights of children and had to be aware of its duties. The very existence of the
Council of Europe meant that its purpose was to defend rights. The Council of
Europe’s credibility was on the line.
It was important to safeguard the rights of the weakest and to monitor
those who breached those rights. The Committee on Legal Affairs and Human Rights wished to
entrust children to same-sex families. That would create shameful situations for children
who would have to endure years of humiliation. The Council of Europe had to be careful in
the use of power that affected the rights of others. He wished to ask the rapporteur of
the Committee on Legal Affairs and Human Rights whether she would give one of her
relations to be adopted by a couple of lesbians or gays.
There was a need for sensible rules, which were genuinely in the
interests of the children, in both the short and the long term. It was important to be
consistent in defending both rights and morality, and to avoid descending into the chaos
which would be brought about by total freedom.
THE PRESIDENT.- Thank you. I call Mr Rakhansky. He is not present. I
call Mr Lintner. He is also not present. I call Mrs
Palecková.
Mrs PALECKOVÁ (Czech Republic).- Adoption must first
take into consideration the interests of the child. Relevant decisions may be taken only
by the specified authorities, pursuant to proceedings establishing that all mandatory
conditions have been met. Adoption in another country may be considered as an alternative
if suitable care of the child is not available in its country of origin. Provision should
be made so that a child adopted in a foreign country enjoys identical rights and
guarantees as in its country of origin, while unjustifiable financial profit for any of
the persons involved is prohibited.
The issue of international adoption has come to the fore in recent
decades. People living in Germany, Sweden, Italy and other countries, as well as
organisations active in arranging the adoption of children from abroad for citizens of
their own countries, have been showing interest lately in adopting children from the Czech
Republic. Such applications are addressed to the Ministry of Labour and Social Affairs of
the Czech Republic, which keeps records of them. There are also people in the Czech
Republic who are interested in adopting a child and, if no local children are available,
may consider adopting a child from another country. The Czech Republic has not yet
developed a mechanism allowing such adoption to take place in compliance with
international standards.
My country is about to sign two international documents relevant to
international adoption. The European Convention on Adoption of Children, agreed in 1967 in
Strasbourg, is ready for signing and ratification here. Its acceptance by the Czech
Republic is deemed to be one of the steps in the process of establishing the preconditions
for the Czech Republic to join the European Union.
Simultaneously, the ratification of the Hague Convention by the Czech
Republic is under way. A new piece of legislation will come into force on 1 April this
year providing for the social and legal protection of the child, which effectively
represents the implementation of the relevant part of the Hague Convention. This Act will
govern the process of international adoption in a new way. International adoption will
become the responsibility of the international child protection office.
Under the Act, if adoption or foster care cannot be arranged within a
certain time in the Czech Republic, the international child protection office will be
given a chance to arrange for adoption to or from abroad. Applicants who do not want only
to adopt a child from abroad will remain on the Czech register as well. Any children
available for adoption will be recorded on both registers.
Pursuant to the relevant international treaties, children living in the
Czech Republic should preferably be given for adoption in their country of origin. Also,
even after applicants or children have been registered for adoption in respect of other
countries, adoption or foster care in the Czech Republic may become an option. Therefore,
the office will keep registers of children suitable for adoption and applicants suitable
to become adoptive parents, both in the Czech Republic and abroad.
With regard to other countries, only full adoption is possible, so as
to provide a child-parent relationship between the child and the adoptive parent or
parents.
When arranging adoptions, the office will rely on the support of people
involved in similar activities in other countries. It should be possible to prevent the
abuse of inter-country adoption of children, and also to determine the conditions under
which individual children will be living in another country.
THE PRESIDENT.- Thank you, Mrs Palecková.
I call Mr Mattei.
Mr MATTEI (France) said that, without wishing to criticise the
excellent report, he did wish to make a few comments.
First, it was important to establish that there was no such thing as
the right to have a child, and to use such terminology reduced children to the status of
objects. Similarly the consideration of both medically assisted reproduction and adoption
as solutions to infertility problems was flawed since they served two completely different
purposes.
The priority must always be to find a solution within the country of
origin. There were dangers even in using international adoption as an option of last
resort. International adoption should never be viewed as a humanitarian action, and the
availability of children in poor countries for adoption should never be advertised. Poor
countries should not be seen as a reservoir of surplus children, and where children were
adopted internationally, their origins should always be respected. Finally, international
adoption should not be organised as if it were a market transaction as that incurred risks
of trafficking and fraud. Innocent children were easy to exploit in that way, and so were
loving parents. The Hague Convention of 1993 had set out rules, which were aimed at
preventing any of those potential scenarios from materialising.
The problem of countries which had not ratified the Hague Convention
could be resolved by developing bilateral agreements and those could be a transition to
signing up to the convention. It was right that the laws of the country of origin should
determine the eligibility of children for international adoption. The year 2003 would be
an opportunity to review the workings of the Hague Convention, ten years after its
adoption.
THE PRESIDENT (Translation).- Thank you, Mr Mattei. I call
Mr Brunhart.
Mr BRUNHART (Liechtenstein) welcomed the report and recognised
that international adoption could provide a family for children whose lives would
otherwise be unsatisfactory. There was a need to be open with adopted children and details
of their origins should be made available to them. While it was desirable for children to
be adopted in their country of birth, that process should not take too long. Where
international adoptions failed, it should be possible for children to keep the nationality
of the adoptive parents. Those children were not always able to return to their country of
birth, and it was imperative to avoid such children being stateless.
THE PRESIDENT (Translation).- Thank you, Mr Brunhart. I call
Mr Provera.
Mr PROVERA (Italy) believed international adoption could have
excellent or disastrous results depending on the underlying motives. He supported the
report where it dealt with trafficking in children as there was a need for proper
processes to be established, focusing on the rights of the children involved. It was
undesirable for adoption to be by same-sex couples. Such arrangements would deprive a
child of a traditional family with the support of a mother and father. Ultimately, the
rights of children being adopted had to take primacy over the desires of potential
adopters.
THE PRESIDENT (Translation).- Thank you, Mr Provera. I call
Mrs Keltošová.
Mrs KELTOŠOVÁ (Slovakia).- I sincerely congratulate the
rapporteurs on their excellent report. As the report stated, many post-communist countries
are facing problems with international adoption, such as child trafficking and corruption
among civil servants and judges. Even though those are not the problems of my country,
thank God, we are tackling another problem of international adoption - our legislation.
Until now, it has been almost impossible for a foreigner to adopt a
Slovak child. Our Family Act does not enable international adoption to take place unless
there are close family ties between the child and the possible adoptive parents. Our
legislation is very strict, even though dozens of childless married couples from the whole
of Europe and northern America ask the Slovak authorities whether it is possible to adopt
a Slovak child.
We are preparing new family legislation, which will be part of our new
civic code. In the new Family Act, we intend to solve many issues, including the problem
of international adoption. We shall have to learn from the relevant legislation of other
European democratic states to avoid any abuse in international adoption as mentioned in
the report. As we are an applicant country to the EU, we are studying and comparing
carefully the legislative frameworks of EU member states to harmonise our legislation with
the family acts of EU member states.
I am therefore very thankful for this report. We are prepared for
further co-operation in this field. I fully support, as does the whole Slovak delegation,
the report’s conclusions that the primary purpose of international adoption must be
to protect the rights of adopted children and provide them with a stable family
environment. We also agree with the proposal of the Committee on Migration, Refugees and
Demography to revise the European convention on nationality of 6 November 1997, to make it
easier for a foreign child to acquire the nationality of the receiving country in the
event of the adoption falling through, or the adoption procedure breaking down.
At the time when the United Nations is preparing to celebrate the tenth
anniversary of the Convention on the Rights of the Child, we must protect the weakest
minority in any
society - children.
THE PRESIDENT (Translation).- Thank you, Mrs Keltošová. I call
Mr Nagiyev.
Mr NAGIYEV (Special Guest from Azerbaijan) expressed
Azerbaijan’s support for the Council’s campaign for the protection of
children’s rights. He thanked the rapporteur for the report. He hoped that the
campaign would draw the attention of the international community to the subject, and
promote international co-operation.
The fall of the Soviet bloc had heightened the problem of international
adoption because of financial pressure on vulnerable families. Azerbaijan was undergoing
social and economic transformation under aggression from Armenia. One-seventh of the
population were refugees and one-third of those were children. That was a burden for a
poor state. Attempts to turn adoption into a commercial activity had not been successful
because of the social culture in Azerbaijan. The government had adopted measures to
regulate adoption. A decree of February 1997 set up a commission for monitoring
international adoption. It had also adopted a 1995 law on social protection of children
without parental care. Co-operation between national and international agencies was needed
for it to work well. Azerbaijan had received assistance from several international
organisations, which had helped the country take care of its children. He was convinced
that the Council of Europe could help to protect children’s rights.
THE PRESIDENT (Translation).- Thank you, Mr Nagiyev. I call
Mrs Belohorská.
Mrs BELOHORSKÁ (Slovakia).- I thank Mr About for his excellent
report and his strong support for children’s rights and needs. When we discuss the
problem of adoption, we have to know whether the law should be intended to uphold
children’s rights and provide help to find them a family and allow them a normal
family life, or to fulfil the dreams of childless couples.
As a politician, I think that we have a responsibility to provide
legislation for international adoption. That duty is delicate and involves a long-term
responsibility to protect children’s futures. Inter-country adoption is sometimes
trans-racial and trans-cultural, which can be difficult for children depending on their
age. The children could also suffer with language and climate problems.
A good example of post-adoption support is Childline in London and
Manchester. Those responsible are regularly in contact with the families and ensure that
the best interests of children and parents are paramount.
Mr About talked about Romanian children who have been rejected from
some countries. That is the exploitation of children and of poor countries in transition.
I ask you to support the report and the recommendations.
THE PRESIDENT (Translation).- Thank you, Mrs Belohorská. I call
Mr Szabo.
Mr SZABO (Observer from Canada).- It is indeed an honour and a
pleasure for me to appear before the Council of Europe as an observer. My Canadian
colleagues and I have learned a great deal and made many friends. I am happy to be here
and to have an opportunity to participate in a debate on an important issue that affects
not just European countries but society as a whole.
Canada has a great interest in the issue of international adoption. The
rapporteur and the committee have done an excellent job in helping us all to understand
these serious and important issues. Unicef has estimated that there are fifty potential
adoptive families for every child available for adoption. No wonder there is so much abuse
of the rights of children and so much terrible trafficking of them. That must stop.
I have listened to every speaker and they have all talked about the
need for a healthy, stable, nurturing family environment for children who have had the
misfortune to lose their family or be abandoned by them and do not have a mother and
father to raise them.
I have had the great fortune to be a member of parliament in Canada for
six years, during which time I have talked a lot about families and written books and
articles on divorce, domestic violence, child poverty and why strong families make a
strong country. I have also written about child poverty. All those issues come back to the
fact that children need stable, nurturing families to ensure that they grow up into
healthy and well-adjusted adults with positive physical, mental and social health outcomes
and an opportunity to fulfil their dreams and aspirations.
I strongly support the report and the recommendations. There are about
2 000 international adoptions a year in Canada and approximately 15% in the
United States, and they are growing at 15 to 20% a year. We have to be vigilant about
the growing market and the growing pressure. The solutions proposed in the report are
necessary, and I hope that the Assembly will firmly embrace them.
My thoughts about family breakdown and a child’s need for a mother
and father were confirmed when I spent a year on a joint Commons-Senate committee on
custody and access when a family breaks down. I was shocked to discover the social
breakdown of a child's life when their parents separate and hate each other and are not
allowed to love their children because of their battles. The same principles apply to an
adopted child. Adopted children have very special needs, which have to be provided for in
the most secure, stable and nurturing environment possible. That means having a mother and
a father. The statistics and the social studies available clearly show that mothers and
fathers have to be supported, the family has to be supported and our children have to be
supported.
Canada has ratified the Hague Convention. We have implemented it fully
in each of our territories and provinces and we support the Council of Europe fully in its
aim of ensuring that the rights and the future of our children are protected to the
greatest extent possible.
THE PRESIDENT (Translation).- Thank you, Mr Szabo. That concludes the
list of speakers. I remind you that rapporteurs replying to a debate have a maximum of
four minutes to share between them. I call Mr About, Rapporteur of the Social, Health and
Family Affairs Committee.
Mr ABOUT (France) thanked the speakers and the other rapporteurs
for the debate. In some states, where there were many children up for adoption, he asked
what they could expect. Many adoptable children in the United States did not fit the
profile sought by parents seeking to adopt, and those parents often looked abroad. People
tended to want to adopt children in their own image. He asked whether international
adoption should not be replaced by a system of guardianship or fostering. Mr Mattei had
given an effective summary of the arguments why countries should ratify the Hague
Convention. The example which Slovakian colleagues had raised was a good one: Slovakia was
a state, which was trying to find internal solutions within the country for its own
children. Mr Szabo had also raised many serious issues concerning what was a market for
children.
THE PRESIDENT (Translation).- Thank you, Mr About. I call
Mrs Wohlwend, Rapporteur of the Committee on Legal Affairs and Human Rights.
Mrs WOHLWEND (Liechtenstein) wished to reply to Mr Rizzi.
Parental effectiveness was often determined not by biology but by the roles which a mother
and father played. In traditional families, the father was quite often missing.
She thanked Mr Rizzi for his comments about the roles of fathers and
mothers in traditional families. In so-called traditional families, the father was often
missing. In same-sex families, the roles of father and mother could be perfectly
well-fulfilled, in some cases better than in traditional families. The question of whether
she would be prepared to give her children to a same-sex couple would not arise because it
would take place only if there were no family to take such a decision. Those who spoke of
traditional families were blind to the facts.
THE PRESIDENT (Translation).- I call Mrs Vermot-Mangold, Rapporteur of
the Committee on Migration, Refugees and Demography, to speak for one minute.
Mrs VERMOT-MANGOLD (Switzerland) said that the suggestion by one
speaker that these issues should be included in the monitoring process was a good idea,
but such procedures should also be carried out for richer countries to ensure that
adoptions were not broken off before their conclusion because the child turned out not to
be the "right child" after all.
Clearly, there needed to be support for families in poor countries to
help them to be able to keep their own children before resorting to the final choice of
international adoption.
The question of children with disabilities deserved consideration. The
principle that the adopted child should acquire the nationality of its adoptive country
immediately was very important, as it prevented countries from shirking their
responsibilities towards disabled children later on.
THE PRESIDENT (Translation).- Thank you, Mrs Vermot-Mangold. I now call
the Chairman of the Social, Health and Family Affairs Committee, Mr Cox. He has two
minutes.
Mr COX (United Kingdom).- I warmly congratulate the rapporteur
on the presentation of this report and the valuable work that he has done in the Social,
Health and Family Affairs Committee on many issues, especially those concerning children.
We have had some excellent speeches. Many of the points made were mentioned by the
rapporteurs, but I wish to make a few brief comments.
I once chaired the children’s committee of one of the largest
authorities in the United Kingdom and I am deeply concerned to ensure that, when children
are split up from their brothers and sisters, legislation gives them the right to be told
about their background, if they wish. All too often, such information is denied to
children and they know nothing of their backgrounds. I listened with great interest to
Mrs Belohorská when she spoke about the adoption policy in Slovakia, which states
that there must be an in-family relationship.
We have touched on the Hague Convention and the action that the Council
of Europe should take, but all of us are members of our respective parliaments and we
should encourage such legislation there. My colleague, Mrs Cryer, referred to recent
legislation in the United Kingdom, and we all have a duty to protect the children of our
country who, sadly, lack that loving family relationship that we have heard about so often
today. We have a duty to ensure that legislation is introduced in our parliaments to give
top priority to the welfare and protection of children who do not have that family
background, irrespective of their age.
Mr Mattei made the point that we should follow up what happens after
the report is presented. So often, we have excellent reports here, but we never hear
anything more about them. I agreed with Mr Mattei’s comments and, as long as I am a
member of this Assembly, I will seek to follow his suggestions.
THE PRESIDENT (Translation).- Thank you, Mr Cox. The debate is closed.
The Social, Health and Family Affairs Committee has presented a draft
recommendation to which two amendments have been tabled.
They will be taken in reverse order, starting with No. 2, of which the
French version only has been revised.
I remind you that speeches on amendments are limited to one minute.
We come to Amendment No. 2, which is, in the draft recommendation,
paragraph 5.ii., after the word "couples", add the following words:
"including same-sex couples".
I call Mrs Wohlwend to support Amendment No. 2.
Mrs WOHLWEND (Liechtenstein) said that there were large numbers
of same sex couples, and that was a fact. The Committee on Legal Affairs and Human Rights
had concluded that the draft should take that into account, and that was the purpose of
the amendment.
THE PRESIDENT (Translation).- Does anyone wish to speak against the
amendment?
I call Mr Mattei to speak against the amendment for one minute.
Mr MATTEI (France) was against the amendment because it placed
the rights of adults above those of children, and it was in contravention of Article 7 of
the Convention on the Rights of the Child, which stated the rights of children to a father
and a mother.
THE PRESIDENT (Translation).- What is the opinion of the Social, Health
and Family Affairs Committee on the amendment?
Mr COX (United Kingdom).- At our meeting this afternoon, the
amendment was discussed. It was opposed by the rapporteur and it was overwhelmingly
opposed by the committee. I ask the Assembly to reject it.
THE PRESIDENT (Translation).- Thank you, Mr Cox. I shall now put the
amendment to the vote by a show of hands…
Amendment No. 2 is rejected.
We come to Amendment No. 1 which is, in the draft recommendation, at
the end of paragraph 7, add a new sub-paragraph to read:
"revise the European Convention on Nationality of 6 November 1997
in order to make it easier for foreign children to acquire the nationality of the
receiving country in the event of the adoption falling through or the adoption procedure
breaking down."
I call Mrs Vermot-Mangold to support the amendment.
Mrs VERMOT-MANGOLD (Switzerland) said there was a need for the
European Convention on Human Rights to be revised to recognise the need for adopted
children to be given the nationality of a receiving country. That was covered by Amendment
No. 1.
THE PRESIDENT.- Does anyone wish to speak against the amendment?...
That is not the case.
What is the opinion of the Social, Health and Family Affairs Committee?
Mr COX (United Kingdom).- The amendment was accepted by the
rapporteur and unanimously approved by the committee. I ask the Assembly to support it
unanimously.
THE PRESIDENT (Translation).- I shall now put the amendment to the vote
by a show of hands…
Amendment No. 1 is adopted unanimously.
We will now proceed to vote on the whole of the draft recommendation in
Document 8592, as amended.
The draft recommendation, as amended, is adopted unanimously.
(Mr Nedelciuc, Vice-President of the Assembly took the Chair in place
of Mr Micheloyiannis.)
6.
Opinion on draft Protocol No. 12 to the European Convention on Human Rights
THE PRESIDENT.- The next item of business this afternoon is the debate
on the report on draft Protocol No. 12 presented by Mr Jurgens on behalf of the Committee
on Legal Affairs and Human Rights, Document 8614.
The list of speakers closed at 12 noon today. Sixteen names are on the
list and two amendments have been tabled.
As we agreed earlier, we will interrupt the list of speakers at about
7.50 p.m. to allow time for the reply and votes before the end of the sitting at 8 p.m.
I call Mr Jurgens to present his report.
Mr JURGENS (Netherlands).- There are two points on the agenda
this evening. One is the equality of men and women and the other is to add a ground of
discrimination to the list in Article 14 of the European Convention on Human Rights: the
ground of sexual orientation. The equality of men and women is the lesser problem because
the Assembly has twice, in 1994 and 1995, insisted that the Committee of Ministers come up
with a protocol to the convention stressing that the equality of men and women should be
included. The Assembly would have no problem in doing that today, because it has already
decided to do it.
The second point is more a matter for discussion, as can be seen by the
fact that amendments have been tabled. We are talking about real discrimination against
homosexuals in their daily lives. It is a matter not of theory but of practice. Many of
the forty-one member states of Europe still have oppressive legislation against
homosexuals, and only eleven have laws against such discrimination. Generally, the
organisations that we heard in Paris in October recognised that such discrimination is as
pernicious and as damaging as other forms of discrimination that are prohibited.
We must recognise that many people, both in public life and as private
citizens, still consider the expression of homophobic attitudes to be both legitimate and
respectable; worse, some think that it is a ground for violence. It is a matter of great
seriousness. The amendments suggest that a consequence of adding discrimination against
homosexuality to the list of prohibited grounds for discrimination would be to legalise
forms of marriage and adoption to the advantage of homosexual partners. That is not the
case; nor is the opposite true. We want to give homosexuals protection against unjustified
and unreasonable discrimination. Any discrimination that can be shown to be justified and
reasonable in the circumstances would be permitted.
The whole doctrine of the Court concerning whether discrimination is
justified or unjustified rests on whether it is reasonable and objective. There are many
reasons for saying that certain forms of distinction between people are both reasonable
and objective. What the explanatory memorandum to one of the amendments says would imply
that giving protection against religious discrimination legalises all religious
activities, which of course is not the case.
We are merely adding to the list in Article 14 a ground that in the
past fifty years has become generally accepted among civilised people as worthy of
inclusion. To discriminate against someone because of their sexual orientation is an
invidious matter that terrorises a minority of the population and can have extremely bad
consequences. It is a matter not only of tolerance but of equality among human beings.
The Ministers themselves have not yet decided, but the Steering
Committee says yes, but then we should add all sorts of other grounds, too. That is not
the case: there are many other possible grounds, such as disability, but we want to deal
with this invidious and pernicious form of discrimination, against which people need
protection. It would not be correct to say that that would open the door to other grounds
for discrimination. To discriminate in this case, the justification must be even stronger
than is normally the case.
Not long ago, the Vice-Premier of Malaysia was charged with sodomy and
imprisoned. That was clearly a political act, but it is bad enough that there is a law
criminalising consenting adults who are sexually active in that sense. Under such laws, as
we know, a well-known writer, Oscar Wilde, in a civilised country such as England a
century ago, could be sentenced to two years in prison for what was then called sodomy.
It is a good sign that three weeks ago, the Court here in Strasbourg
decided that sexual orientation cannot be a basis for discrimination in a case in which a
court in Portugal had described homosexuality as an abnormality, and the consequences of
the court’s decision were based on that. The Strasbourg Court regarded that as being
contrary to Article 14.
We have made progress with the jurisprudence of the Court, but we
should add one element to the grounds for unjustified discrimination. If we had known
fifty years ago what we know today, I am sure that the founding member states would have
added sexual orientation to the convention. I ask the Assembly to help us to bring this
about so that, at last, this ground for discrimination will be added to Article 14 and men
and women will be made equal.
THE PRESIDENT.- Thank you. In the debate, I call first Mr Uriarte.
Mr URIARTE (Spain) said that it was an honour to present his
maiden speech to the Assembly in a human rights debate. Protocol No. 12 of the European
Convention on Human Rights would be strengthened to combat discrimination more effectively
by the report. The draft extended the protective machinery to all rights recognised in the
laws of member countries.
His group supported two changes proposed by the committee. The first is
the same treatment of men and women. It was appropriate to formulate that protection in a
positive manner. The second is the inclusion of sexual orientation in the current list of
unacceptable grounds of discrimination. Different treatment on the grounds of sexual
orientation constituted discrimination only if it was without foundation or was
disproportionate. The principle of proportionality was required in member states to ensure
that they were not obliged to refrain from different treatment in all areas - for
example same-sex marriage. With that proviso, he supported the report.
THE PRESIDENT.- Thank you. I call Mr Eörsi.
Mr EÖRSI (Hungary).- On behalf of the Liberal group, I warmly
support the report of the Committee on Legal Affairs and Human Rights. The European
Convention on Human Rights is especially close to the hearts of Liberals. Decades ago,
Liberals were at the forefront of human rights issues in Europe and all over the world.
Today, we are happy to see that other political groups - socialists and conservatives -
are closer to us and help us to work for those goals.
The convention needs constant revision. We believe that its application
should be broadened. We should be more explicit about the fact that every man and every
woman is equal. We are on the right track.
When we look at the third recommendation, which states that sexual
orientation cannot be a ground for discrimination, we do not understand why our
forefathers omitted to include that. I am not naďve and I appreciate the difficulties. I
understand that there is enormous prejudice against same-sex orientation. The list of the
prohibited grounds for discrimination includes sex, race, colour, language and belonging
to a minority group. If, fifty years ago, anyone had suggested outlawing discrimination
based on colour, race, language and so on, there would have been a huge outcry.
I understand that in society there is great prejudice against
homosexuals and lesbians. Of course, we in politics want to be re-elected, but our role is
not only to follow public opinion. Part of our role is leadership. I sincerely believe
that people with different sexual orientations are no less entitled than anyone else to
lead a full and happy life.
During the previous discussion, there was a vote on that matter and on
the rights of children. However, adults are equally entitled to live in complete families
and to live with children. I fully agree with Mr Szabo that nothing is more devastating to
a child than to live with a father and mother who hate each other and who are in constant
conflict. On the other hand, two parents of the same sex may live in harmony.
I spoke earlier of leadership. We should follow the example of the
Danish Queen. When a new Canadian ambassador presented credentials, he was, for the first
time in history, accompanied by another man. The Danish Queen took his hand and he became
a symbol of the rights of homosexuals. We should follow that example.
A few decades ago, discrimination based on sex, race, colour and
language was prevalent, but some of our forefathers dared to say that there should be a
ban on such discrimination. If we want our children to be proud of us, we must have the
courage to do the same. Prejudice surrounds the matter, and we must show leadership so
that homosexuals and lesbians may live without discrimination.
THE PRESIDENT.- Thank you, Mr Eörsi. I call Mrs Akgönenç.
Mrs AKGÖNENÇ (Turkey).- I am grateful for being granted the
time to speak.
Draft Protocol No. 12 aims to reinforce the non-discrimination
clause in Article 14 of the European Convention on Human Rights, particularly in
respect of equality between women and men. Article 14 prohibits any form of
discrimination - not just on sexual grounds, but on many others. The provision should
be interpreted to include fields not specifically mentioned. For that reason, I feel that
the introduction of a specific regulation on equal rights for women and men, in addition
to one relating to sexual orientation, should be reconsidered. Creating new and specific
control machinery could prove to be redundant and could create duplications in the
protection of human rights. In the United Nations Convention on the Elimination of All
Forms of Discrimination against Women we already have an international binding instrument
with its own monitoring mechanism. The existence of that convention should be taken into
consideration when we assess the need for a new protocol to the European Convention on
Human Rights. We should note that duplications in the protection of human rights may
weaken the efficiency of the present control mechanism. References to "national or
social origin" and "national minority" in Article 1 of the draft
protocol may result in some obscurity in the consultation process because of the absence
of agreement on the definition of those terms.
THE PRESIDENT.- Thank you, Mrs Akgönenç. I call Mr Etherington to
speak on behalf of the Socialist Group.
Mr ETHERINGTON (United Kingdom).- I am very proud to present the
case for the Socialist Group, which entirely agrees with the rapporteur. I congratulate
the Committee on Legal Affairs and Human Rights for providing an example of all that is
best in the Parliamentary Assembly by challenging the executive. That is what democracy is
all about, and that is why the committee deserves our support.
I am a member of the Committee on Equal Opportunities for Women and
Men. Early in the life of that committee, we decided to treat homosexuals in exactly the
same way as heterosexuals. There should be no discrimination, and as there should be
equality between heterosexual women and men, there should be the same right for
homosexuals.
Mr Jurgens’s report says at paragraph 22 that the committee
received evidence last October from several people. I had the pleasure of attending that
meeting, and I learned a lot and came away from it a much wiser person. I felt that the
fundamental philosophy of the committee was similar to that of the Committee on Equal
Opportunities for Women and Men. That cheered me up no end. A week before, when I had
tried to move something on behalf of the equal opportunities committee, a bad decision by
the Committee on Legal Affairs and Human Rights obstructed it - though the chairman was a
notable exception, and I am sure that he remembers the incident well. It is nice to know
that both committees are travelling in the same direction.
The question is whether we move forward or backward. I have no doubt
that the Committee of Ministers is every bit as concerned as I am to try to eliminate any
form of discrimination. However, that committee does not have absolute knowledge or
wisdom. Whatever utterance or decision it makes may be improved, and Mr Jurgens has
done that. I hope that the Assembly votes unanimously for the amendment from the Committee
on Legal Affairs and Human Rights. If we do not move forward and if the motion is lost, we
shall not stand still, but move backward.
I am in a difficult position because the United Kingdom Government has
stated that it is against the amendment. That does not bother me unduly, and I do not find
it embarrassing because it has happened before. I do not believe that the UK Government is
against the aspirations contained in the report. The evidence offered by the UK Government
is of the narrow and legalistic type that most politicians do not like. It comforts me
that the Committee on Legal Affairs and Human Rights has reached its own conclusion. I am
also fairly relaxed about the less than inspiring answer I received when I questioned the
UK permanent representative on the point. That answer was similar to the brief -
I think that "nondescript" is the best word that I can use to describe it -
that I was given on the matter.
I first became aware of this matter a fortnight ago today. There is
some irony in the fact that, on the same day, the British Government made a statement to
parliament on the elimination of discrimination against homosexuals in the armed forces. I
know that my government is travelling in the right direction. No nation represented here
today is perfect on this matter. We all have room for improvement. We may face court
cases, and I am delighted to say that my government will accept decisions even when it has
fought them in the courts.
I wish the Committee on Legal Affairs and Human Rights well. I thank
Mr Jurgens for his report. I hope that all members of the Assembly will vote in
favour of his report. The choice before us is to move forward or to go backward.
THE PRESIDENT.- Thank you, Mr Etherington. I call Mrs Err.
Mrs ERR (Luxembourg), as a member of the Committee on Equal
Opportunities for Women and Men, was delighted with the report and its courageous
conclusions.
There was a growing misconception that non-discrimination was the same
as equality. Furthermore, equality between men and women did not automatically result in
equality between different social groups such as the young and the old, or the employed
and unemployed. The adoption of the recommendation would be in line with a previous report
of the Committee on Legal Affairs and Human Rights on the situation of gay men and
lesbians. Not to adopt the resolution would put the Assembly at risk of being seen to
provide a justification for discrimination against gay people.
Finally, she did not agree with the argument that a protocol should not
be added to the European Convention on Human Rights at the time that the European Union
was considering its accession to the convention. The adoption of the protocol should be
another demonstration that the convention continued to evolve and adapt.
THE PRESIDENT.- Thank you, Mrs Err. I call Mr Lintner. He is not here,
so I call Mr Besostri.
Mr BESOSTRI (Italy) said that the Assembly should welcome the
new protocol. It was important that the European Convention on Human Rights was accessible
to all people, without the need for interpretation by experts. Mr Jurgens had
provided a clear intellectual exposé of the issues.
The upholding of human rights was not just a question of preventing
discrimination, but required positive action as well. The Italian Constitution of 1948 had
included the task of removing obstacles to the full participation of all people. It was
important to affirm not only the rights of all people to equality before the law, but
their equality in society.
The Assembly should approve the amendments and should highlight the
need for positive action. He supported the particular reference to sexual orientation,
since that was frequently a cause of discrimination and, in some cases, persecution.
The adoption of minors should be considered nationally in accordance
with the principle of subsidiarity, in recognition of the social sensitivity of the issues
at stake. The rights of minors should, however, always be paramount.
Protocol No. 12 would, he thought, strengthen and broaden the basis on
which the European Court of Human Rights carried out its valuable work, to which he paid
tribute.
THE PRESIDENT.- Thank you, Mr Besostri. I call Mr Wójcik.
Mr WÓJCIK (Poland).- The European Convention on Human Rights,
which is the cornerstone of the protection of human rights in Europe, is a heavy
instrument. It is interpreted by the European Court of Human Rights in its judgments and
constantly amended by additional protocols. What makes the convention so important is the
effectiveness of its control mechanism.
I should like to draw attention to a remark made by the Court in its
opinion. It has nothing to do with the content of the protocol, but concerns the possible
entry into force of this instrument. It says that if the protocol was adopted immediately,
it would substantially increase the Court’s caseload and backlog. If people have to
wait many years for judgments in their cases, the credibility of the Court might be
undermined. That is the opinion of judges who are not hostile to the idea of developing
human rights protection, and it deserves careful consideration.
I am strongly opposed to the amendment on sexual orientation.
Regardless of the ideology of the debate, let us consider the problem pragmatically. It
would give anyone who wanted to enter into a formal and legally valid homosexual
partnership the right to do so, but only a few European countries have legislation that
allows such partnerships. The Polish Constitution, for example, guarantees the right to
marriage only between a man and a woman. The amendment would prevent my country from
ratifying the instrument. Its aim is not to secure a right that is widely accepted or to
prevent discrimination. No one prevents homosexual people from living how they choose. The
amendment is an attempt to impose the legal acceptance of homosexual partnerships on the
majority of member states and societies.
THE PRESIDENT.- Thank you, Mr Wójcik. I call Mr Clerfayt.
Mr CLERFAYT (Belgium) believed that the European Court of Human
Rights had been reluctant to rule in cases hinging on questions of equal rights for men
and women. That was regrettable and highlighted the need for a revised protocol. The
report focused too much on discrimination on the grounds of sexual orientation while it
ignored other forms of potential discrimination on the grounds of race, nationality or
language, for example. The Court should be able to consider those, too. The European Court
of Human Rights had ducked those issues in the past, as the infamous 1968 Belgian language
case showed. Today, the Strasbourg Court was fighting against its rival in Luxembourg and
it needed to establish its supremacy by improving its treatment of equality issues.
THE PRESIDENT.- Thank you, Mr Clerfayt. I call Mr Schreiner.
Mr SCHREINER (France) questioned the scope of the draft protocol
on the grounds of whether any individual characteristics would be covered. Articles in the
European Convention on Human Rights already recognised limits of freedom of thought and
expression where there were issues of public safety, health, order or morality. He
wondered whether the draft protocol might adversely affect the balance that existed
between liberty and responsibility.
The protocol outlined the prohibition of discrimination on the basis of
certain characteristics. The protocol was going to govern all systems of national
legislation. It would affect the interpretation of laws even if those laws themselves were
compatible. Its conclusion would leave the door open for certain challenges and that would
shift the responsibility from the legislature to future judicial decisions. He remained
perplexed with the text, which might be in line with media interpretation, but it would
undermine solidarity.
THE PRESIDENT.- Thank you, Mr Schreiner. I call Mr Jaskiernia.
Mr JASKIERNIA (Poland).- I congratulate the rapporteur on his
report on this difficult and delicate issue, and I salute the Committee on Legal Affairs
and Human Rights for submitting the report. I support the thinking of the committee and
the explanation of the report given by Mr Jurgens.
The committee, and the Sub-Committee on Human Rights - which I have the
honour to chair - held hearings on the problems of discrimination on grounds of sexual
orientation and we found several areas of concern. It is time to progress towards the
avoidance of such discrimination in Council of Europe states.
When we discussed the issue in the committee, some representatives of
the secretariat specialising in legal affairs asked why we wished to add sexual
orientation to the convention. They said that it was not necessary because Article 14
already includes the phrase "or other status", and that included sexual
orientation. However, it is interesting that when we discuss the subject people try to be
vague. If we are really against discrimination on the grounds of sexual orientation, we
should say so openly, not covertly. It is time to do so when we discuss a new instrument
that will help the judges rightfully to interpret the European Convention on Human Rights.
People have suggested that it is for the judges to interpret the
position, but we should limit the competence of the judges. They should interpret general
clauses, but we should avoid general clauses if we have the chance to say something
directly. The phrase "or other status" remains in proposed Article 1, as
suggested by the committee. However, when we have evidence of several cases of real
discrimination and our intention is clear, why should we not say so openly as a sign of
the progress we have achieved in Council of Europe member states?
Of course, we are only preparing an opinion and the last word lies with
the Committee of Ministers. Let us hope that the Committee of Ministers decides on real
consultation, not a symbolic one. I could not imagine a situation in which the
Parliamentary Assembly recommended an anti-discrimination clause and the Committee of
Ministers was against it. That would be a difficult and unpleasant situation and we should
avoid it.
The committee has advised us correctly and we have an excellent
explanatory memorandum. We have received several letters from around Europe during the
preparation of draft Protocol No. 12 suggesting that we should be precise and courageous
in addressing this issue. Every country has different legislation, but we should not worry
that, by adding the clause, people would say that we were pushing the boundaries too far.
People argue that it is up to individual countries, with their different cultures, to deal
with the problem. We see the differences between Netherlands and France, or Italy and
Poland, and we cannot imagine that one day everyone will accept the changes to the
protocol. In the meantime, we should take a first serious step and make the position of
the Council of Europe clear. We should extend the European Convention on Human Rights and,
as we approach the 50th anniversary of the Convention, is the right time to do it.
THE PRESIDENT.- Thank you. Because of the lack of time, we can have
only one more speaker. I call Ms Gülek.
Ms GÜLEK (Turkey).- First, I congratulate the rapporteur on his
well-prepared report. The changes are a necessity and are long overdue. We are all here to
fulfil one of our main duties in the Council of Europe - to protect fundamental
freedoms and human rights. I have a list signed by many non-governmental organisations,
mainly from France - some of you may have received a copy - and I wish to quote
a sentence or two from it. The organisations state that they "wish to express their
full support for the opinion laid down in the report of the Committee on Legal Affairs and
Human Rights". It continues: "We the undersigned agree with you and consider it
of the utmost importance that the principle of equality between men and women should be
enshrined separately in the ECHR and that the proposal of the Committee of Ministers to
the Assembly to extend the prohibition of discrimination is too weak in this
respect." That document shows the wide support for these proposals among many NGOs.
Equality before the law and non-discrimination are necessary to protect
fundamental rights and freedoms. Let us remember that draft Protocol No. 12 was drafted to
guarantee the freedom of men and women, regardless of sexual orientation, and also to
combat racism, which is one of the most urgent priorities in Europe. The worrying rise of
racism, xenophobia and nationalism should make it easier for us to combat them. Broadening
the scope of the non-discrimination clause with a non-exhaustive list is very necessary.
We must stop talking and having good intentions, and turn our
intentions and talk into actions. Translating equality into actual non-discrimination is
indeed a challenge and could not be done without extending the list. Article 1 of the
draft protocol as it stands leaves quite a margin of appreciation to the judges of the
Court, who will interpret the scope of the words "any right set forth by law".
The draft protocol places no concrete obligation on contracting parties in the field of
gender equality or racism. It affirms only the prohibition of discrimination on those
grounds. We could do with a more concrete obligation.
The changes are long overdue and I hope that we will accept the
proposal unanimously, in a fashion that becomes this Assembly.
THE PRESIDENT.- Thank you, Ms Gülek.
I must now interrupt the list of speakers. I remind you that members
who are on the list and present in the Chamber but who have not been called may submit
their speeches in typescript to the Table Office within 24 hours of the end of the debate
for publication in the official report.
I remind you that rapporteurs replying to a debate have a maximum of
four minutes.
I call Mr Jurgens.
Mr JURGENS (Netherlands).- I compliment Mr Uriarte on his maiden
speech. He showed good knowledge of the field, and I would have wished that his fellow
party member, Mr Wójcik, had listened better to him, because the former explained exactly
why what the latter said was not true. If we accept sexual orientation as an extra ground
in Article 14, that does not mean that national ways of regarding such very special
matters as adoption and marriage by homosexuals would automatically have to change. None
of the basic rights formulated in the convention is framed in that way. It is a matter of
proportionality. As Mr Jaskiernia said clearly, views can be very different in that
respect from Poland to Italy, and from Holland to Finland.
The perniciousness of discrimination against homosexuals is not in the
field of adoption and marriage but in daily life. Many of us have an attitude that makes
their daily life hell and makes it difficult for them to find employment or a house. The
way in which each legislature works out how to apply in practice what we have set out will
clearly be different. It is not true that when I recognise the right to religious freedom,
I recognise the right of religious sects to perform human sacrifice. It is a matter of
duties and responsibilities, as Mr Schreiner said, although I thought that his remarks
were on the reactionary side, unlike those of Mr Eörsi, who spoke as a true Liberal,
which I always like to hear.
Mr Clerfayt was right to say that the basic point is what was brought
before us by the Committee of Ministers and what is in the draft protocol: Article 14 will
cover the violation of not only any right set forth by law but any rights in the
convention. We did not give that matter enough attention, as we were concentrating on
other matters, but Mr Clerfayt was right to draw attention to it.
The novelty of having a committee that had not been asked by the Bureau
to report to us, in the words of Mrs Err, in this case was an excellent innovation, as it
helped us to see that it is a matter not only for the committee on Legal Affairs and Human
Rights but for the Committee on Equal Opportunities for Women and Men, as
Mr Etherington, who is also a very eloquent speaker, said.
I have not been able to answer everybody. There were many brilliant
speakers, and I hope not to be the last.
THE PRESIDENT.- Thank you, Mr Jurgens.
I call the Chairman of the committee, Mr Jansson.
Mr JANSSON (Finland).- I want to add some brief remarks to this
fruitful, healthy and relaxed discussion, for which I thank my colleagues. In my view,
there is behaviour that can be influenced by legislation and behaviour that cannot,
despite the important old Christian rule that one may not love a law but if it is in force
one must follow it, and try to amend it by political means. That is an a contraria interpretation
of what has been said. I want to bear witness from the committee, where our dear colleague
Mr Jurgens and the secretariat did a marvellous job in a relaxed atmosphere and we voted
twenty-five to two, with one abstention, to adopt the recommendation.
Fifty years after the convention entered into force, now is a good time
to fill up what is a practical, if not a legal, gap, paving the way for further
legislation in member states. About thirty member states have inadequate legislation on
this point.
In paragraph 9.ii we propose that the protocol should need ten
ratifications to enter into force.
THE PRESIDENT.- Thank you, Mr Jansson.
The debate is closed.
The Committee on Legal Affairs and Human Rights has presented a draft
opinion, to which two amendments have been tabled.
The amendments will be taken in numerical order.
Amendment No. 2 is consequential to Amendment No. 1; so if No. 1 is
rejected, No. 2 falls.
We come to Amendment No. 1, which is, in the draft opinion, delete
paragraph 6.
I call Mr Schreiner to support the amendment.
Mr SCHREINER (France) said that the European Convention on Human
Rights protected the right to privacy even in the area of sexuality. A general progression
against discrimination on grounds of sexual orientation might pose a problem in that
respect. For those reasons, he proposed that paragraph 6 be deleted.
THE PRESIDENT.- Does anyone wish to speak against the amendment?
I call Mr Besostri to speak against the amendment.
Mr BESOSTRI (Italy) was opposed to the amendment because it
would not achieve its purpose.
THE PRESIDENT.- What is the opinion of the Committee on Legal Affairs
and Human Rights?
Mr JANSSON (Finland).- The committee is against the amendment.
We had a vote and that was the result. The committee hopes that the Assembly will vote
against the amendment.
THE PRESIDENT.- I shall now put the amendment to the vote by a show of
hands...
Amendment No. 1 is rejected.
I call Mr Libicki on a point of order.
Mr LIBICKI (Poland).- How many votes were there for the
amendment, and how many against?
THE PRESIDENT.- According to the rules, it is not compulsory to
announce the numbers.
Mr LIBICKI (Poland).- Please repeat the vote.
THE PRESIDENT.- No.
Amendment No. 1 has fallen so, as announced previously, Amendment No.
2 also falls.
We will now proceed to vote on the whole of the draft opinion contained
in Document 8614.
The draft opinion is adopted.
I take this opportunity to congratulate the rapporteur on all his work.
7. Written declaration
THE PRESIDENT.- In accordance with Rule 53 of the Rules of Procedure, a
written declaration, No. 299, on relocating historical artefacts in their countries of
origin, Document 8636, which has been signed by twenty-five members, has been
printed.
Any representative or substitute may add his signature to this written
declaration in the Table Office, Room 1083. If any names are added, the declaration will
be distributed again two weeks after the end of the part-session, with all the accumulated
signatures.
8. Date,
time and orders of the day of the next sitting
THE PRESIDENT.- The Assembly will hold its next public sitting tomorrow
at 10 a.m. with the orders of the day as already agreed today - that is,
starting with the joint debate on Chechnya and then the credentials of the Russian
delegation.
Are there any objections?…
That is not the case.
The orders of the day of the next sitting are therefore agreed.
Does anyone wish to speak?…
The sitting is closed.
(The sitting was closed at 8.05 p.m.)
