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Information memorandum by Andreas Gross on LGBT

AS/Jur (2008) 11

4 March 2008

    

Committee on Legal Affairs and Human Rights

 
Freedom of assembly and expression for lesbian, gay, bisexual and transgendered persons in Council of Europe member states

and

Legal recognition of same-sex partnerships in Europe

 

Information memorandum

Rapporteur: Mr Andreas Gross, Switzerland, Socialist Group

  

Contents:

 

I.         Introduction

II.    Discrimination on grounds of sexual orientation: preliminary remarks

III.      Freedom of assembly and expression: two fundamental rights in a democracy, protected by the ECHR

IV. Legal recognition of same-sex partnerships in Europe: contrasted situations in Europe

V.   Concluding remarks

*****

 

I.          Introduction

 

i.          Scope of my report concerning the rights of lesbian, gay, bisexual and transgendered (LGBT) persons[1]

 

1.                   On 16 September 2005, I was appointed rapporteur of the Committee on Legal Affairs and Human Rights on the issue of “Legal recognition of same-sex partnerships in Europe” on the basis of a motion for a recommendation (Doc 10640) tabled by Mr Jurgens and others. In 2006, a new motion for a resolution concerning “Freedom of assembly and expression for lesbian, gay, bisexual and transgendered persons in Council of Europe member states” (Doc. 10832) was referred to the Committee to be taken into account in my report on “legal recognition of same-sex partnerships in Europe”.

 

2.                   A third motion for a recommendation (Doc 11423) on “Discrimination on the basis of sexual orientation and gender identity” has just been referred to the Committee on Legal Affairs and Human Rights for report. I consider that this motion should be merged into my current report since it covers both subjects I am working on. Consequently, I would like the Committee to ask the Assembly’s Bureau to change its reference to that effect. If my request is accepted, I will prepare a report on ”Discrimination on the basis of sexual orientation and gender identity”[2], which will include, inter alia, the issues of “freedom of assembly and expression for lesbian, gay, bisexual and transgendered persons”  and “legal recognition of same-sex partnerships in Europe”. The final scope of my report will therefore depend on the “fate” of this third motion.

 

ii.         Preparation of this report

 

3.                   In the framework of the preparation of my report, I have so far visited Spain (May 2006) and Latvia (October 2007) and presented to the Committee an introductory memorandum on “Legal recognition of same-sex partnerships in Europe” (AS/Jur (2007) 30) in June 2007.

 

4.                   Given the strong reactions and opposition raised by this subject in a number of countries, in January 2007, I proposed to the Committee to hold a exchange of views, in March 2008, with experts on these issues, in order to identify factors that have ensured (positive) changes in attitudes and legislation in a number of countries, as well as difficulties encountered in these fields. Such an exchange of views should also permit Committee members to have an open and direct discussion on the subject.

 

5.                   The next steps in the preparation of my report and the time schedule of its presentation will of course depend on its final scope (see above concerning the “fate” of the third motion on "Discrimination on the basis of sexual orientation and gender identity”).

 

II.         Discrimination on grounds of sexual orientation: preliminary remarks

6.                   Both subjects (“Freedom of assembly and expression for lesbian, gay, bisexual and transgendered persons in Council of Europe member states” and “same-sex partnerships in Europe”) address rights of lesbian, gay, bisexual and transgendered persons and raise the issue of discrimination on grounds of sexual orientation.

 

7.                   Hostility with respect to lesbian, gay, bisexual and transgendered persons, as well as human rights defenders working for the rights of LGBT persons, is still clearly present in a number of Council of Europe (CoE) member states and LGBT persons are all too often subjected to discrimination, homophobic statements, hate speech or violence. Discrimination can manifest itself in the legal, political and/or social fields.

 

8.                   Statements made by Patriarch Alexi II, when addressing the CoE Parliamentary Assembly in October last year, comparing homosexuality to an “illness” such as kleptomania, as well as statements made by a number of Latvian parliamentarians, in particular Mr Janis Smits, the Chairperson of the Latvian parliamentary Human Rights and Public Affairs Committee, during my visit to the country in October 2007, are telling examples of homophobic views expressed by European public figures. The latter referred to homosexuality and to Pride Marches as a “spreading plague” and a “problem imported from abroad” and denied it was a human rights issue. I should add that these views were not supported by all the members of the Latvian Parliament I met.  

 

9.                   In this context, one should recall that it is the CoE’s duty to promote a clear message of tolerance and non-discrimination and that the Organisation has always fought for equality and diversity. In this respect, the CoE Parliamentary Assembly has, on several occasions, condemned discrimination in Europe based on sexual orientation and gender identity[3]. Recently, the CoE Committee of Ministers also reiterated that discrimination on grounds of sexual orientation is not compatible with the value of tolerance and the principle of equality, to which all member states are bound[4]. The Congress of Local and Regional Authorities of the CoE, the Commissioner for Human Rights, as well as the Secretary General, have also on several occasions addressed this issue and condemned homophobia.

 

10.               The provisions of the European Convention on Human Rights (ECHR)[5] and the case law of the European Court of Human Rights provide a vital reference framework in respect of these issues.

The introduction of the “Yogyakarta Principles on the application of international law in relation to issues of sexual orientation and gender identity”, in November 2006, should also be mentioned in this context. These principles were devised and adopted unanimously by a group of eminent human rights experts from various regions and with various backgrounds.[6]

 

III.                Freedom of assembly and expression[7]: two fundamental rights in a democracy, protected by the ECHR

 

i.          Recent developments[8]

 

11.               The right of lesbian, gay, bisexual and transgendered persons to freedom of assembly and freedom of expression has met with widespread opposition in many CoE member states in recent years. This opposition has manifested itself in a number of ways, particularly the banning of marches, the use of intolerant or derogatory language by leading politicians and faith representatives, violent attacks on demonstrators, and failure by the police to provide adequate protection.

 

12.               2007 has proved to be a year of mixed developments, but with signs, overall, that the right to freedom of assembly for lesbian, gay, bisexual and transgendered people is becoming more established. The Warsaw, Poznan, Krakow, Tallinn and Riga marches all passed off successfully. The Chisinau Pride March was again banned, but a protest rally went ahead without violence or police opposition. A few months earlier, the Moldovan Supreme Court had judged the ban on the 2006 Pride March “unjustified”, reversing its own stand with regard to the 2005 Pride March.

 

13.               On a negative note, there was the banning of the Moscow March, and the refusal of the Vilnius city authorities to allow the EU anti-discrimination bus into the city, which led to the cancellation of what would have been the first public LGBT event in Lithuania. There were also violent attacks on pride marchers in Budapest and Zagreb, two cities where peaceful pride events had been held for a number of years.

 

14.               As stressed by the Congress last year, on the occasion of its debate on freedom of assembly and expression for lesbian, gay, bisexual and transgendered persons, recent homophobic incidents in a number of member sates have highlighted not only the systematic violation of the basic rights of the LGBT community but have shown that in many cases the very authorities who have the positive obligation to protect their citizens against discrimination are actually endorsing and, in some cases, actively supporting or perpetrating this injustice.

15.               There is a clear need to reaffirm the existing standards in this respect and to urge the authorities concerned to implement them.

 

ii.         The standards

 

16.               Freedom of expression and freedom of association are enshrined in the European Convention on Human Rights (Articles 10, and 11 ECHR) which has been ratified by all CoE member states. In addition, the ECHR prohibits discrimination in the way that the rights in the ECHR are applied (Article 14 ECHR). Consequently, the rights to freedom of expression and freedom of assembly must be enjoyed by all without discrimination. In other words, lesbian, gay, bisexual and transgendered persons enjoy the same right to freedom of expression and to freedom of assembly as any other person within the jurisdiction of a CoE member state.

 

17.               Restrictions on the exercise of the rights to freedom of expression and freedom of assembly must be prescribed by law and be necessary in a democratic society in the interest of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedom of others.

 

18.               Authorities play a central role in upholding their citizens’ rights to freedom of assembly and expression. This includes the positive obligation for the state to provide effective protection and ensure respect for lesbian, gay, bisexual and transgendered persons who wish to assemble and express themselves, even if their views are unpopular or are not shared by the majority of society.

 

19.               As stressed by the CoE Committee of Ministers in January 2008, “according to the established case law of the European Court of Human Rights, peaceful demonstrations, be they in favour of the rights of lesbian, gay, bisexual and transgendered persons or others, cannot be banned simply because of the existence of attitudes hostile to the demonstrators or to the causes they advocate. On the contrary, the state has a duty to take reasonable and appropriate measures to enable lawful demonstrations to proceed peacefully. In a series of judgments, the Court has emphasised that any discrimination based on sexual orientation is contrary to the Convention. All member states must observe the Convention when they apply national law, notably in the light of the case law of the Court”.[9]

 

20.                The Committee of Ministers[10] also invited all member states to implement its Recommendations on “hate speech” and on “the media and the promotion of a culture of tolerance” in respect of lesbians, gays, bisexuals and transgendered persons.[11] The CM Recommendation on “hate speech”[12] asserts that public authorities and institutions have a “special responsibility to refrain from statements …, speech … and other forms of discrimination or hatred based on intolerance”, especially when it is disseminated through the media. Any legitimate interference with freedom of expression should be “narrowly circumscribed and applied in a lawful and non-arbitrary manner on the basis of objective criteria (and) subject to independent judicial control”.

 

21.               In 2007, in the case of Bączkowski and others v. Poland[13], the Court of Human Rights delivered its first judgment specifically addressing the right to freedom of assembly of lesbian, gay, bisexual and transgendered persons. It ruled that the prohibition by the Warsaw authorities of the 2005 Equality assemblies violated the Convention (Articles 11 and 14). The Court drew attention to the positive obligation of the State to secure the effective enjoyment of Convention rights, stressing that "this obligation is of particular importance for persons holding unpopular views or belonging to minorities, because they are more vulnerable to victimisation". In referring to a public statement by the then Mayor of Warsaw that he would refuse permission to hold the assemblies, the Court emphasised that the exercise of freedom of expression by elected politicians "entails particular responsibility".

  

IV.        Legal recognition of same-sex partnerships in Europe: contrasted situations in Europe

 

22.               In 2000, in its Recommendation 1474, the Assembly was pleased to note that “some countries [had] not only abolished all forms of discrimination but [had] also passed laws recognising homosexual partnerships …”. It recommended that the Committee of Ministers call upon member states to introduce legislation making provision for registered partnerships.

 

23.               In present-day Europe, the situation varies considerably from one country to another as regards legal recognition for same-sex partnerships. In some countries, same-sex partners may enter into a civil marriage, whereas in others same-sex couples may, by registering their partnership and/or by drawing up an official cohabitation contract, obtain legal recognition and protection for most or some of the rights that are afforded to heterosexual married couples. In a number of Council of Europe member states, however, there is no statutory provision to this effect (see the table below). In addition, a number of countries – Poland, Lithuania and more recently Latvia – have prohibited same-sex marriage in the Constitution by defining marriage as a union between a man and a woman. Reportedly, a draft law to that effect is also currently being examined by the Romanian Parliament.

 

24.               My report will seek to analyse the historical, social and political reasons behind such a diversity in Europe, in particular in countries – such as Spain and Poland – which have completely opposite legislation in this field, despite a strong common Catholic cultural heritage.

 

25.               Legal recognition for same-sex partnerships is an issue that causes feelings to run high, and there are differences of opinion both between member states and among the public in each member state. It has to be acknowledged that, for a number of people, same-sex partnerships are perceived as being "against human nature", a “threat” to the traditional family and/or an offence to the “moral order”. At the same time, it has also to be acknowledged that failure to recognise same-sex partnerships often leaves those concerned in uncertain and distressing situations.

 

26.               Despite this lack of consensus, the number of states adopting legislation on same-sex partnership is growing. As recently stressed by the European Parliament, steps should be taken to “ensure that same-sex partners [enjoy] the same respect, dignity and protection as the rest of society[14]. The CoE Commissioner for Human Rights also stated that legal recognition of same sex partnerships is needed and must be afforded in a non-discriminatory way with regards to all financial and proprietary benefits[15].

 

Overview of the situation in COE member states[16]

(years indicating entry into force of relevant legislation)

 

 

No legal recognition of same-sex partnerships

 

 

Some recognition of same-sex cohabitation, but no formal registration of partnership or marriage

 

 

Formal registration of a partnership open to same-sex AND different-sex partners

 

 

Formal registration of a partnership ONLY open to same-sex partners

 

 

Civil Marriage open to same-sex partners

 

Albania

Armenia

Azerbaijan

Bosnia and Herzegovina

Bulgaria

Cyprus

Estonia

Georgia

Greece

Ireland

Italy

Latvia

Liechtenstein

Lithuania

Malta

Moldova

Monaco

Montenegro

Poland

Romania

Russian Federation

San Marino

Serbia

Slovakia

“the former Yugoslav Republic of Macedonia

Turkey

Ukraine

Austria

Croatia (2003)

Portugal (2001)

Status virtually equivalent to that of married couples:

Netherlands (1998)

 

Status inferior to that of married couples:

Andorra (2005)

Belgium (2000)

France (1999)

Hungary (2007)

Luxembourg (2004)

 

[Pending legislation:

Ireland

Liechtenstein]

Status virtually equivalent to that of married couples (with possible exception of parental rights):

Denmark (1989)

Finland (2002)

Germany (2001)

Iceland (1996)

Norway (1993)

United Kingdom (2005)

Sweden (1995)

Switzerland (2007)

_____________

 

Status inferior to that of married couples:

Czech Republic (2006)

Slovenia (2005)

 

Belgium (2003)

Netherlands (2001)

Spain (2005)

 

[Pending legislation:

Norway

Sweden]

 

27.               Registered partnerships may have virtually all the consequences of marriage – with the result that one can talk of a “virtual marriage” in the case of the five Nordic countries and the United Kingdom – or only a limited number of those consequences.

 

28.               The report will note that the assignment of certain pecuniary rights remains much less problematical than the granting of parental rights. Belgium is a telling case: whereas same-sex partners have been allowed to marry since 2003, their right to adopt children was not recognised until 2006, when they were put on an equal footing with heterosexual partners in respect of descent and adoption.

 

29.               Already, the Netherlands, Spain, Sweden, the United Kingdom, Belgium, and Iceland enable same-sex partners to jointly adopt unrelated children, while Denmark, Germany and Norway permit a registered same-sex partner to adopt their partner’s child.

 

30.               Individual adoption by an unmarried person, whether or not he or she is homosexual, is, however, more widely possible, but this right often exists only on paper. In practice, people who make no secret of their homosexuality are frequently refused authorisation to adopt by the authorities, often on the grounds of the lack of a paternal/maternal role model conducive to the harmonious development of the adopted child. The European Court of Human Rights recently handed down a judgment[17] on the matter in connection with the French authorities’ refusal to grant approval to a homosexual woman. This woman alleged that she was refused authorisation to adopt on account of her sexual orientation and that she was discriminated against on the ground of her homosexuality. The Court concluded that the decision of the French authorities violated the Convention (violation of the prohibition of discrimination and of the right to respect for private and family life).

 

31.               The existence of same-sex partnerships is a sociological fact in all Council of Europe member states. The report will highlight the importance of providing them with appropriate legal protection.

 

V.         Concluding remarks

 

32.               My report will reaffirm the right of lesbian, gay, bisexual and transgendered persons to enjoy the same fundamental rights as any other individual in a CoE member state and stress the necessity to promote tolerance and non-discrimination. It will also seek to present the factors that have ensured positive changes in attitudes and legislation in a number of countries, as well as difficulties encountered in these fields. The Committee’s exchange of views with experts will certainly be an essential source of information in this respect.

 


[1] Remarks on terminology:

-The term ‘LGBT persons’ is used to describe those who consider themselves as being lesbian, gay, bisexual or transgender. It does not suggest that there is a single ‘LGBT’ identity.

- I do not consider the term “sexual minority” appropriate in this context, first and foremost because it includes persons other than lesbian, gay, bisexual or transgendered persons. 

[2] The EU Agency for Fundamental Rights has commissioned a comparative study on the situation concerning homophobia and discrimination on grounds of sexual orientation in the EU. Reportedly, this study will be submitted to the Agency in autumn 2008.

[3] See in particular Rec 1470 (2000), Rec 1474 (2000) and Rec 1635 (2003).

[4] See CM reply to Written Question No 524 to the CM by Mrs Acketoft: “Ban on a Chisinau demonstration by homosexuals”, adopted on 07.11.2007.

[5] Article 14 ECHR prohibits any form of discrimination in the enjoyment of the rights and freedoms set forth in the Convention and Protocol No 12 to the ECHR contains a general prohibition of discrimination.

[6] For more detailed information and a comprehensive list of the principles, see: http://www.yogyakartaprinciples.org.

[7] See the work of the Congress of Local and Regional Authorities on freedom of assembly and expression for lesbians, gays, bisexuals and transgendered persons, Resolution 230(2007), Recommendation 211 (2007) and CPL(13)9 Part 2, 15.01.2007.

[8] For details, see ILGA report, "Lesbian, Gay, Bisexual And Transgender Rights - Freedom Of Assembly - Diary Of Events By Country – August 2007".

 

[9] CM/Cong(2008)Rec211 final, CM Reply to Congress recommendation 211 (2007), 18.01.2008, § 3. See also CM Reply of 07.11.2007 to Written Question No. 524 by Mrs Acketoft: “Ban on a Chişinau demonstration by homosexuals” and CM Reply of 06.02.2008 to Written Question No. 527 by Mr Huss : “Ban on a Moscow demonstration by lesbian, gay, bisexual and transgender persons in 2007”. See also OSCE/ODIHR guidelines on freedom of peaceful Assembly.

[10] See CM/Cong(2008)Rec211 final , CM Reply to Congress recommendation 211 (2007), 18.01.2008, § 4.

[11] Recommendation No. R (97) 21.

[12] Recommendation No. R (97) 20.

[13] No. 1543/06, judgment final on 24.09.2007.

[14] European Parliament Resolution of 18.01.2006 on homophobia in Europe. Emphasis added.

[15] Commissioner for Human Rights, Annual report 2006 and follow-up report on Slovenia, CommDH(2006)8.

[16] For details of the situation in each Council of Europe member state, see the ILGA-Europe website: www.ilga-europe.org. See also “Sexual orientation discrimination in the EU: national laws and the Employment Equality Directive”, by Kees Waaldijk and Matteo Bonini-Baraldi, The Hague: Asser Press 2006 (see www.emmeijers.nl/experts), as well as the Chronological overview of the main legislative steps in the process of legal recognition of homosexuality in 45 European countries, by Kees Waaldijk, http://athena.leidenuniv.nl/rechten/meijers/index.php3?m=10&c=128, and “All’s well that ends registered? The substantive and private international law aspects of non-marital registered relationships in Europe”, by Ian Curry-Sumner, Antwerp/Oxford: 2005 (see part 11 on http://www2.law.uu.nl/priv/cefl/EFLSeriesText.html).

 

[17] Grand Chamber judgment E.B. v. France, 22.01.2008.

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