This document sets out ILGA-Europe’s Action Plan (as agreed at the Regional Conference in Linz in October 1998) with regard to the Council of Europe during 1998/1999. It will inevitably be developed further as we progress through the year.
 

A. Parliamentary Assembly

1. Draft Parliamentary Assembly Resolution on the situation of lesbian/gay couples with regard to asylum and migration

Last year an Austrian socialist parliamentarian, Ms Irmtraut Karlsson, tabled a motion for a resolution calling for the Assembly to carry out an in-depth study of the legislation and practice dealing with homosexual partnerships in asylum and migration. The resolution was referred to the Committee on Migration, Refugees, and Demography of the Parliamentary Assembly, and Ms Karlsson was appointed to prepare a report. Once the report (which is likely to be exploratory, rather than definitive) is prepared, it will be for Ms Karlsson and the Committee to decide the next steps. For example, the Committee may request the Parliamentary Assembly to make a Recommendation to the Committee of Ministers to take action towards removing anomalies, e.g. through a further more detailed study by an intergovernmental committee, which could then make detailed proposals to the Committee of Ministers. To succeed, the Recommendation of the Parliamentary Assembly would need a 66% majority.

Actions:

• ILGA-Europe to collect information for Ms Karlsson's report from member organisations and present to Ms Karlsson by the end of December 1998 (Member organisations to prepare information, Nigel Warner to collect).
• In due course, if there is a vote in the Assembly, member organisations to lobby their parliamentarians

2. Parliamentary resolution(s) on the criminal law, employment law (?) and partnership law

Ms Karlsson, who is also a member of the Legal Affairs and Human Rights Committee, plans to table a second motion for a resolution at the January 1999 session of the Parliamentary Assembly. This would address three significant areas of the law: the the criminal law, together perhaps with employment law and partnership law. The intention would probably again be to prepare a report detailing the laws in the Council of Europe countries, perhaps leading to a second Recommendation by the Parliamentary Assembly to the Committee of Ministers.

Actions:

• ILGA-Europe to discuss with Ms Karlsson the intention and wording of the resolution, and particularly which areas of law it should address. (Kurt Krickler/Nigel Warner by end October)
• ILGA-Europe to collect information during 1999. (Plans to be developed)
• In due course, if there is a vote in the Assembly, member organisations to lobby their parliamentarians

3. Survey of attitudes of parliamentarians to LGBT rights

ILGA-Europe to send a short questionnaire to parliamentarians in order to gain some idea of their attitude to LGBT rights, and to identify those who would be willing to become more involved in working with ILGA, perhaps in some form of all-party group of parliamentarians working on LGBT issues.

Actions:

• Survey to be prepared by end of 1998 (Nigel Warner)
• Survey to be sent out in January 1999, once the 1999 list of parliamentarians is available (Nigel Warner).
• Separately: Member organisations to review the record of their Council of Europe parliamentarians, and provide information on attitudes of individual parliamentarians to Nigel Warner by end February 1999.

4. Resolution by the NGO Human Rights Grouping on LGBT rights

NGOs with consultative status work together on Council of Europe issues in so-called interest "Groupings". ILGA-Europe is a member of the Human Rights Grouping. Groupings can pass resolutions which are addressed to the Parliamentary Assembly. These are transmitted to the relevant Committee of the Assembly, which decides what further action, if any, to take.

It is proposed that ILGA-Europe make a presentation to the Human Rights Grouping on LGBT rights, and ask it to pass a resolution. This resolution would request the Legal Affairs and Human Rights Committee to ask the Secretariat of the Council Europe to facilitate a seminar for parliamentarians on LGBT rights. This seminar, if it took place, could provide the opportunity to launch an all-party group of parliamentarians working on LGBT issues.

Actions:

• Draft resolution for presentation to NGO Human Rights grouping by end February 1999 (Nico Beger)
• Lobby friendly human rights NGOs to support resolution - by April 1999 (Nigel Warner)
• Make presentation to NGO Human Rights Grouping -- late April 1999 (Nico Beger)

5. Establish all-party group of parliamentarians dealing with LGBT issues

ILGA-Europe Board to work on this with Ms Karlsson. How the group is established will depend very much on her views, and on the outcome of the survey and of the planned seminar.

6. Romania

It now seems clear that the remaining areas in which Romania has failed to comply with its obligations on human rights (including its laws on homosexuality) are not sufficiently "important" for the Parliamentary Assembly to re-impose monitoring (which would be a major step, and not easily undertaken).

The only remedy left for Romanian lesbians and gays within the Council of Europe is to take a case under the European Convention on Human Rights. They would not be able simply to borrow argumentation from previous successful cases since the 1996 Romanian law discriminates in areas which have not yet been successfully challenged. ("Same sex relations taking place in public or resulting in a public scandal", "Enticing or seducing a person to practise same sex relations, as well as propaganda, association or other forms of proselytizing".)

Actions:

• Discuss with Accept (Nigel Warner)

7. Applicants for membership of the Council of Europe

Four countries, Bosnia, Armenia, Azerbaijan, and Georgia, currently have "guest status" with the Parliamentary Assembly, with a view to eventually becoming full members. All four countries are believed to have laws prohibiting homosexual relationships (there is some uncertainty because at least two of them are in the process of updating their criminal codes). ILGA-Europe has already written to the Council of Europe concerning Armenia.

Actions:

• Ascertain current position of membership applications, and make appropriate representations to the Political Committee by end of 1998 (Nigel Warner)

B. Committee of ministers

1. "Broadening" of Article 14 of the European Convention on Human Rights

Article 14 is the anti-discrimination clause of the Convention. It reads as follows:

"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

It is much weaker than the equivalent clause in many other human rights laws because it does not guarantee protection from discrimination in itself -- it merely provides protection from discrimination in "the enjoyment of the other rights and freedoms set forth" in the Convention (e.g. the right to privacy, to family life, to freedom of expression, association etc). From the point of view of LGBT people, it is further weakened because it makes no specific reference to sexual orientation, nor to transgender status, so that it has to be argued that these fall within a catch-all category, "other status".

In March 1998 the Committee of Ministers of the Council of Europe issued instructions that a draft protocol be developed by the end of 1999 with the aim of altering Article 14, so that freedom from discrimination becomes a separate right under the Convention. Behind this move was the concern expressed by many countries that the Convention needed to give greater protection against racial and gender discrimination.

Obviously, the LGBT community would wish to see the words "sexual orientation" and "gender identity" [or whatever formulation is deemed best, after further consultation/consideration] listed separately in the new article. There is now a precedent for this in Europe, at least as far as "sexual orientation" is concerned, since this phrase was included in the anti-discrimination clause of the European Union's 1997 Amsterdam Treaty. Unfortunately, it is clear from the terms of reference issued by the Committee of Ministers that they do not wish this to happen in the case of the revised Article 14. They also probably do not wish to see the categories of "age" and "disability" included (these were also included in the Amsterdam Treaty)

Actions:

• ILGA-Europe to make written submission to the Council of Europe arguing for the inclusion of "sexual orientation" and "gender identity" in the draft protocol. (Robert Wintemute, law lecturer at Kings College, London, has agreed to prepare). ILGA-Europe also to support inclusion of "age" and "disability", and to welcome the Council of Europe’s concern to strengthen the "race" and "gender" aspects of the Convention.
• ILGA-Europe to advise age and disability NGOs of the situation, and try to persuade them to make submissions also, including covering sexual orientation. (Nigel Warner to do by end October)
• ILGA-Europe member organisations to write to their Foreign Minister urging them to support the inclusion of "sexual orientation" and "gender identity" in the protocol. (Nigel Warner to provide a model letter by December 1998)

2. Cyprus

In May 1998 the Cyprus Parliament repealed the complete ban on male homosexuality, but replaced it with very discriminatory laws similar to those in Romania, but also including a discriminatory age of consent. The Committee of Ministers is considering whether this new legal situation discharges Cyprus' obligations following the judgement of the European Court of Human Rights in the Modinos case. If it decides in the affirmative, then the only course of action open to Cypriot lesbians and gays will be to take a further case under the European Convention.

Actions:

• Discuss with Alecos Modinos whether ILGA-Europe can do anything to help, once Committee of Ministers' decision is known. (Nigel Warner)

C. Election of new Secretary-General of the Council Europe

A new Secretary-General is to be elected in 1999. Austria has nominated a Christian Democrat, Walter Schwimmer, as its candidate. He has consistently opposed gay law reform in the Austrian Parliament in areas protected by the European Convention on Human Rights, such as freedom of association, freedom of expression, and an equal age of consent.

Actions:

• ILGA-Europe member organisations to write to their foreign ministers and members of the parliamentary assembly asking them to oppose Schwimmer's candidacy AS SOON AS POSSIBLE. Model letters and names of parliamentarians will be distributed by Nigel Warner at Linz.
• ILGA-Europe to work in its own right to oppose Schwimmer’s candidacy.