Agenda for Council of Europe

1
Agenda for Council of Europe

• Overview
• How the C of E can/is supporting LGBT rights
• Parliamentary Assembly
• Human Rights Commissioner
• Congress of Local and Regional Authorities
• The Court

2
OVERVIEW of C of E

• Human Rights Organisation
• Covers 46 countries, 800 million people
•  Main institutions
• Committee of Ministers
• Parliamentary Assembly
• Congress of Local and Regional Authorities
• European Court of Human Rights
• Commissioner for Human Rights
• Secretary General/Secretariat
•  

3
Freedom of Assembly

• Secretary-General
• Commissioner for Human Rights
• Parliamentary Assembly Legal Affairs and Human
  Rights Committee
• Parliamentary Assembly Monitoring Committee
  (Moldova and Russia)
• Congress of Local and Regional Authorities
  (Statement by President Report/Recs)
• ECtHR cases from Warsaw, Chisinau, (Moscow)

4
Statement by Secretary GeneralTolerance is not
enough

• I add my voice to those condemning homophobia
  which, regrettably, remains alive and well in
  many parts of Europe..
• First, we must demolish the walls of prejudice
  and intolerance. Then we must build a new
  structure of acceptance, equality and respect.

5
Parliamentary Assembly

• Report on freedom of assembly
• Report on legal recognition of same-sex
  relationships
• Monitoring Committee
• Informal pressure by Parliamentarians
• Moldova / Russia (Hate speech by MPs)
• Russia (2002 attempt to re-criminalise same-sex
  sex)
• Russia ban on Moscow Pride

6
PACE Monitoring Committee

• Reviews progress of new member states towards
  achieving satisfactory level of respect human
  rights and rule of law. (Albania, Armenia,
  Azerbaijan, Bosnia-Herzegovina, Georgia,
  Macedonia, Moldova, Russia, Serbia/Montenegro and
  Ukraine)
• Rapporteurs (2) appointed by Assembly
• Regular visits
• Report to the Assembly every year to two years
• Window of opportunity
• Monitoring process disliked by governments, so
  incentive to comply with Assembly recommendations

7
Issues covered by monitoring committee

• All fundamental human rights
• Freedom of assembly
• Police harassment
• Hate crimes/speech
• Discriminatory laws
• Need for anti-discrimination legislation
• (Lobby in Strasbourg meet on country visits)

8
Recommendations included in Monitoring Committee
reports

• Ukraine to investigate allegations of police
  harassment of the lesbian and gay community and
  to take disciplinary action as appropriate. The
  police should be made aware of the need to
  respect the rights of lesbian, gay, bisexual and
  transgendered persons, inter alia through the
  inclusion of relevant material in police training
  courses and manuals. (9/03)
• Moldova re refusal of the Chisinau authorities
  to authorise demonstration. Democratic
  governments are required to respect the
  fundamental rights of all their citizens and that
  discrimination against sexual minorities is
  inadmissible". (9/05)

9
Commissioner for Human Rights

• Public statements
• Interventions with government officials,
  ombudspersons
• Country reports
• Does not take up individual cases

10
Support for LGBT rights

• Pro-active
• Two public statement on freedom of assembly
• Staff member responsible for LGBT issues
• Two meetings with ILGA-Europe
• Involving IE in conference on human rights
  defenders
• Actively seeking information on LGBT issues for
  country reports and meeting LGBT groups (Georgia)

11
Statements by Hammarberg

• Freedom of assembly belongs to all the people .
  Violent incidents against those who are different
  or perceived to be different are taking place
  with alarming frequency, and all too often with
  impunity. This is unacceptable and has to be
  stopped.

12
Statement by Hammarberg

• Gay Pride marches should be allowed and
  protected
• The lesbian and gay movements are getting more
  and more organized and they urge their members to
  come out. This is a logical response to
  centuries of systematic discrimination in country
  after country. The real problem is not their
  sexual orientation, but the reaction of others.
  Whatever the psychological roots, many people
  still react with aggression against homosexuals.
  Sadly, some priests have also given direct or
  indirect support to homophobia which has delayed
  the necessary attitude change in a number of
  countries. Hate speech and violent acts against
  sexual minorities are still frequent often with
  total impunity. The time has come to change
  that.

13
Commissioners country reports

• All fundamental human rights e.g.
• Freedom of assembly
• Police harassment
• Hate crimes/speech
• Discriminatory laws
• Need for anti-discrimination legislation
• ? Family issues? Recognition of same-sex
  partners etc ? (Karner)
• Visits Ukraine 12/06 Caucasus 1st half 07
  Balkans 2nd Half 07

14
Congress of Local and Regional Authorities

• March 2006 the CLRAE President asks Mayor of
  Moscow to "review" his decision to ban the Gay
  Pride Parade, pointing out that the "universal
  and unalienable nature of these rights can never
  be in question".
• Report and recommendations under preparation

15
Pro-LGBT positions of the Court (1)

• Sexual orientation discrimination
• Equal treatment in the criminal law
• Prohibition of discrimination by public
  authorities in
• Employment and services (including armed forces)
• Custody of children by genetic parents
• Governments must grant same rights/benefits to
  same-sex cohabiting partners as they give to
  different-sex cohabiting partners

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Pro LGBT positions of the Court (2)

• Gender identity
• Judgments protect right of transsexual men and
  women
• To legal recognition of gender reassignment (e.g.
  birth certificates)
• To marry a person whose sex is different to their
  reassigned sex
• Where a public/private health insurance plan
  reimburses cost of "medically necessary"
  treatment, plan must cover the cost of gender
  reassignment even if usual strict criteria for
  determining "medical necessity" do not appear to
  be satisfied. (Respect the transsexual
  individual's self-determination of their gender
  identity, and to take into account the lack of
  scientific certainty in this area.)

17
Significance of Court judgments for countries not
involved in case

• Countries have signed up to Convention
• Court cases define the scope of Convention
• So member states have moral obligation to bring
  their laws/practices in line with court judgments
• But not legal obligation
• Also for EU accession countries, article 6 (2)
  EU the Union shall respect fundamental rights,
  as guaranteed by the ECHR.

18
ECHR - Political pressure or copycat cases

• Age of consent
• Armed forces
• Transsexual persons right to change birth
  certificate and to marry in their adopted
  gender health care costs
• Custody of children
• Rights for co-habiting partners
• Freedom of assembly

19
ECHR further test cases

• NEED TO GO CAREFULLY!
• Negative judgments can set back progress by many
  years
• Extending recognition of same-sex partners
  e.g., pensions rights
• Avoid for time being marriage, adoption by
  same-sex couples

20
Issues on which no support from Council of Europe
institutions

• Adoption rights for same-sex couples (attempt to
  include in a PACE Recommendation dealing with
  international adoptions (2000) heavily defeated)
• Adoption rights for single lesbians or gays
  (Frette case at ECHR - 2002)
• Second parent adoption
• Rights of unmarried or registered same-sex
  couples vs married couples
• Marriage even a reference in Recommendation
  1470 strongly opposed by European Peoples Party
  (2000)

21
Conclusions

• Great scope for working with the Council of
  Europe to achieve LGBT rights, especially on
  freedom of assembly
• Great support and goodwill from Council of Europe
  staff and institutions - now welcoming and keen
  to help

22
Karner case (tenancy succession rights for
same-sex partners)

• 1st victory for same-sex partners in
  international human rights law (overrules 6
  previous Convention cases)
• Rejects argument that necessary to exclude
  same-sex partners from rights of unmarried
  different-sex partners to protect the family in
  the traditional sense
• This reasoning could apply in further cases to
  exclusion from rights of married partners, and
  ultimately to access to civil marriage

23
Quoting arguments used by the Court

• Examples
• Age of consent rejection of the idea that young
  males can be recruited into homosexuality
• Rights for same-sex partners rejected argument
  that discrimination necessary for protection of
  the family in the traditional sense.
• Sexual orientation discrimination as serious as
  discrimination on basis of religion, race, gender

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Pro LGBT positions of the Parliamentary Assembly
(1)

• The situation of lesbians and gays in member
  states (1474 (2000))
• Repeal of discriminatory sexual offences laws
• Equal treatment in employment
• Anti-discrimination legislation
• Introduction of registered partnership laws
• Measures to combat homophobia in schools, the
  medical profession, the armed forces and the
  police

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Pro LGBT Positions of the Parliamentary Assembly
(2)

• Situation of gays and lesbians and their
  partners/asylum and immigration (1470 (2000)
• Member states to recognise as refugees
  homosexuals persecuted on account of sexual
  orientation
• Ensure that bi-national lesbian and gay couples
  are accorded same residence rights as bi-national
  heterosexual couples

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Significance of Recommendations of the
Parliamentary Assembly

• Are Recommendations to the Committee of Ministers
• But powerful statement of European democratic
  opinion, even if not acted on by the Committee of
  Ministers

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Pro LGBT statements by the Committee of Ministers
(1)

• Reply to PACE Recommendation on situation of
  lesbians and gays in member states (1474)
• regrettably, discrimination and violence ..
  still occur. Differentiated treatment still
  exists as do contemptuous or intolerant
  attitudes
• Homosexuality can still give rise to powerful
  cultural reactions, but this is not a valid
  reason for governments or parliaments to remain
  passive. On the contrary, this only underlines
  the need to promote greater tolerance in matters
  of sexual orientation

28
Pro LGBT statements by Committee of Ministers (2)

• Response to PACE recommendation 1474 (cont)
• The Committee underlines in particular the need
  .. for measures in the areas of education and
  professional training to combat homophobic
  attitudes in certain specific circles (schools,
  medicine, armed forces, police, judiciary, sport)
• the case-law of the ECHR provides a strong
  general incitement to all member states to reform
  any discriminatory legislation or regulations

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Significance of statements by Committee of
Ministers

• Reached by consensus therefore all governments
  have, in theory, accepted
• Not legally binding, but strong moral obligation
  to observe