Subject: [euroletter] EuroLetter 74
From: "Steffen Jensen" <[email-masked]>
Date: Sun, 17 Oct 1999 11:14:21 +0200

EURO-LETTER
No. 74				Oktober 1999

The Euro-Letter is published on behalf of ILGA-Europe - The European Region
of the International Lesbian and Gay Association by Gay and Lesbian
International Lobby in co-operation with The Danish National Association for
Gays and Lesbians.
Editors: Steffen Jensen, Ken Thomassen, Peter Bryld, Lisbeth Andersen and
Soeren Baatrup.
Contact to Euro-Letter: E-mail: [email-masked] URL:
http://www.steff.suite.dk Fax: +45 4049 5297 Tel: +45 3324 6435 Mobile: +45
2033 0840 Mail: c/o Steffen Jensen, Gl. Kongevej 31, 4.th, DK-1610
Copenhagen V, Denmark
You can receive Euro-Letter by e-mail by sending an empty message to
[email-masked]  and from no 30 onwards the Euro-Letters
are available on the Internet at  http://www.steff.suite.dk/eurolet.htm and
at http://www.france.qrd.org/assocs/ilga/euroletter.html

IN THIS ISSUE
THE FRENCH PaCS
JUDGMENTS IN THE CASES ABOUT GAYS IN THE MILITARY IN THE UNITED KINGDOM
ILGA EUROPE PRESS RELEASE AFTER THE JUDGEMENT
EUROPEAN COURT ON HUMAN RIGHTS: DIFFERENTIAL TREATMENT OF UNMARRIED
COHABITATION AS COMPARED TO MARRIAGE WITHIN MARGIN OF APPRECIATION
LATVIA: PROGRESS ON PARTNERSHIP LAW
LATVIA: PARTNERSHIP LAW PRESENTED TO THE MEDIA AND SENT TO PARLIAMENT
BAN ON SEXUAL ORIENTATION DISCRIMINATION PROPOSED IN ITALY
SWISS PARLIAMENT VOTES FOR REGISTERED PARTNERSHIP
REPEAL SECTION 28 HITS THE ROAD
ROMANIA: SAME SEX RELATIONS
EUROPEAN CHARTER OF HUMAN RIGHTS?
ILGA-EUROPE LAUNCHES GUIDE ON THE TREATY OF AMSTERDAM
OSCE REVIEW CONFERENCE

Documents relating to ILGA-Europe can be found at ILGA-Europe's homepage
http://www.steff.suite.dk/ilgaeur/
An update of the Survey on the Legal Situation for Gays and Lesbians in
Europe can be found at
http://www.steff.suite.dk/survey.htm
A description of partnership laws and other laws regarding same-sex partners
can be found at
http://www.steff.suite.dk/partner.htm

THE FRENCH PaCS
by René Lalement

The French National Assembly passed the civil solidarity pact, or PaCS, by
315 votes to 249, in its last and definitive reading on October 13, 1999.
The law should be promulgated by the President by the end of the year, if
the Constitutional Council rules it conforms with the Constitution.

A ten year process
In 1989, the "Cour de Cassation" (the higher civil law court in France)
ruled that a homosexual couple cannot benefit the few advantages which are
given to cohabiting heterosexual couples, especially the transfer of a
tenant's lease.  The first registered partnership law proposal followed in
1990.  Two years later, the "Contrat d'Union Civile" (CUC) was the aim of a
new law proposal signed by eight deputies; rewritten and named "Contrat
d'Union Sociale" (CUS), it was broadly supported by the gay and lesbian and
AIDS-related organisations. The CUS was the main theme of Paris lesbian and
gay pride March in 1996, and one of the demands of next year's Europride in
Paris, the largest political demonstration of that year in France (300,000
participants).

It was only in June 1997 that a ruling coalition had this project in its
electoral agenda, and three law proposals were registered soon after the
1997 elections. In January 1998, Catherine Tasca, president of the law
committee of National Assembly asked MPs Jean-Pierre Michel (MdC) and
Patrick Bloche (PS) to write a synthesis of previous proposals. In April, a
petition against gay marriage, signed by 15,000 mayors, was published ; it
was impressive enough to incite the government to keep the registration of
the future contract away from town halls, while it was the place proposed
until then. Dissenting voices from the homosexual movements were also heard
: Aides Federation (the main AIDS organisation in France, whose president
was Arnaud Marty-Lavauzelle), and a few local but highly visible groups
demanded the opening of marriage to homosexual couples, and branded as
discriminatory the ongoing parliamentary project. Other projects were
brought to public attention, by sociologist Irène Théry (a cohabitation
statute) and by jurist Jean Hauser ("Pacte d'Intérêt Commun"), leading to
strong debates in the media.

In May 1998, the first draft of the PaCS, written by Michel and Bloche was
published. In June, Justice Minister Elisabeth Guigou gave the government's
agreement to this draft, against Thery's and Hauser's projects. Two days
later, Paris Lesbian and Gay Pride march gathered 100.000 people under the
slogan "Nous nous aimons, nous voulons le PaCS". The same day, President
Jacques Chirac (not in charge of the government, because of a contrary
majority in the Assembly) said he opposed any imitation of the marriage.
After the appointment of Michel and Bloche as "rapporteurs" and the
extensive hearings they organised, the law proposal came into discussion
October 9, 1998 and was rejected because of a strong mobilisation of the
opposition, and the defection of the majority. A new law proposal had then
to be prepared.

The Assembly passed this new law proposal 316-249 on December 9, in first
reading. On January 31, a demonstration gathered nearly 100,000 people
against the PaCS ; some strongly homophobic slogans were heard, such as "les
pédés au bûcher". The law proposal was then rejected by the (conservative)
Senate by a vote of 192 to 117 on March 18.  However, the Senators adopted
an alternate proposal that includes in the civil code a definition of
cohabiting couples, but declined an amendment, sponsored by the Left,
specifying that the two people making a couple may be of any gender. In
second reading, the Deputies ignored the Senate proposal, restoring the
Assembly proposal, but they added a definition of cohabitation with the any
gender mention on April 7. This text was then rejected by the Senate on May
11 (with no reading), adopted by the Assembly on June 15 and rejected again
by the Senate on June 30. Only the last (and fourth) reading by the Assembly
can overwrite the Senate rejection. It occurred on October 12 and 13, and
the law was adopted by 315-249.

Contents of the law
(See also http://www.steff.suite.dk/partner.htm)
The civil solidarity pact is a contract binding two adults of different
sexes or of the same sex, in order to organise their common life ;
contractors may not be bound by another pact, by marriage, sibling or
lineage. Adults under custody cannot contract.

The contractors have to register a common declaration by the local court
where they set their common residence, if in France and by the consular
authorities, if abroad.

Partners commit to mutual and material help; modalities of this help are
specified by the common declaration. They are jointly responsible for debts
due to ordinary expenses for the household.

A pact can be dissolved by a common statement of the partners by the court
(or consulate), by the death or the marriage of one of the partners, or
after a three months delay, at the request of one of the partners.

Partners are eligible for joint taxation benefits after three years (which
is interesting only in case the incomes are not equal).  But special
allocations for people having low income are suspended or reduced as soon as
the pact is signed.  Also, the tax on large assets is due from the first
year on.  Donations, but only after two years, and inheritance from a
partner to the other benefit a tax abatement. Life insurance capital can be
paid to the surviving partner.

The tenant's lease can be transferred to the partner if the other partner
leaves their common home or dies.

A partner who does not have a social protection (health benefits) may enjoy
the other partner's social protection.

French nationality is not required to sign a pact ; the signature of a pact
must be considered by the administration when a foreigner asks for
immigration rights, but the pact does not give these rights by itself.

Public servants (from national or local administrations) may ask another
position from their employer in order to get closer to the other partner.

Cohabitation is also defined in this law as a de facto stable and continuous
relationship between two persons of different sexes or of the same sex
living together as a couple.

Moreover, the pact does not contain any clause regarding lineage, adoption
or custody.

Comments on the law
The law does not achieve the equality of homosexual and heterosexual
couples.  Actually, heterosexual couples may cohabit, sign a pact or marry ;
homosexual couples may only cohabit or sign a pact.  Rights, benefits and
obligations can be compared : minimal for cohabitation, they are larger for
PaCS, and still larger for marriage.

However, the law is in itself an equality law, because it does not contain
any discrimination against homosexual couples, for instance there is no
denying of adoption or insemination as in some other partnership laws. Such
discriminations do exist in other parts of the legislation (for marriage,
adoption, etc), but not in the PaCS.

For the first time, a law recognises the very existence of non-married
couples and states the equivalent value of homosexual and heterosexual
couples. Moreover, it recognises the plurality of life styles : marriage is
now only an option and no more the norm. This is both why the pact has been
welcomed by the society, definitely less attracted to marriage, and fought
by the conservative and religious movements.

The PaCS, once read as stating an equality principle in the Law, sheds a new
light on other parts of the Law and on practices which may now appear as
quite discriminatory. This side effect of the new law has already been
understood by its opponents, who even think that, with the help of European
Law, adoption and marriage will sooner or later follow from the PaCS. As the
government is preparing another law concerning family and bio ethic issues,
which will be discussed within the next year, the road is open for new
advances.

Comments on the process
Seven readings in the Parliament, 120 discussion hours, thousands of
amendments made of this law proposal one of the most debated of the last
years. Although it was expected to be a non-partisan law, with support from
the progressive right to the left (as it was the case for the abolition of
the death penalty, or the laws on contraception and abortion), the right
chose to strongly oppose the law, even if some leaders of the right were
privately in favour of the pact. Never since 1982 (for the equalisation of
ages of consent) homosexuality has been said to such extend in the
Parliament. Only two MPs from the right voted for the law, one of them being
long-standing supporter Roselyne Bachelot-Narquin.

This was also an open field for homophobia : both in speeches, in street
demonstrations, and in the media. Some MPs did not hesitate to speak of
register the pact at a veterinary service or to ask for the sterilisation of
homosexual couples.  MP Christine Boutin, the standard-bearer of the
religious right and the leader of the January demonstration (where
demonstrators shouted that fags should be burned), displayed a bible in the
Assembly and uttered despising words in the guise of compassion. Most people
were troubled by such behaviours; the leaders of the opposition, still very
low-voiced, understood that they have made a mistake. As a result, the very
concept of homophobia is now well-known from the media and the politicians,
and now almost unanimously rejected. A law banning homophobic speeches will
probably be planned. A stronger and more conscious acceptation of
homosexuality has been obtained through one year of public debate.

The full text of the law and more information can be found in the France QRD
at the URL http://www.France.QRD.org/texts/partnership

JUDGMENTS IN THE CASES ABOUT GAYS IN THE MILITARY IN THE UNITED KINGDOM
Press release issued by the Registrar of the Court

In a judgment[fn1] delivered at Strasbourg on 27 September 1999 in the case
of Lustig-Prean and Beckett v. the United Kingdom, the European Court of
Human Rights held unanimously that there had been a violation of Article 8
(right to respect for private and family life) of the European Convention on
Human Rights. In a second judgment delivered on the same day in the case of
Smith and Grady v. the United Kingdom, the Court also found a violation of
Article 8 together with a violation of Article 13 (right to an effective
remedy) of the Convention. The Court reserved for separate judgments the
question of an award of just satisfaction under Article 41.

1. Principal facts
Duncan Lustig-Prean and John Beckett, British nationals, were born in 1959
and 1970 and live in London and Sheffield (United Kingdom) respectively.
Jeanette Smith and Graeme Grady, British nationals, were born in 1966 and
1963 and live in Edinburgh and London (United Kingdom) respectively.

All four applicants, who were at the relevant time members of the United
Kingdom armed forces, are homosexual. The Ministry of Defence apply a policy
which excludes homosexuals from the armed forces. The applicants, who were
each the subject of an investigation by the service police concerning their
homosexuality, all admitted their homosexuality and were administratively
discharged on the sole ground of their sexual orientation, in accordance
with Ministry of Defence policy. They were discharged in January 1995, July
1993, November 1994 and December 1994 respectively. In November 1995 the
Court of Appeal rejected their judicial review applications.

2. Procedure and composition of the Court
The applications were lodged with the European Commission of Human Rights on
23 April, 11 July, 9 September and 6 September 1996 respectively. On 1
November 1998, in accordance with Article 5 § 2 of Protocol No. 11 to the
Convention, the cases were transmitted to the Court.

On 23 February 1999 the Court (Third Section) joined Mr Lustig-Prean and Mr
Beckett's applications and joined Ms Smith's and Mr Grady's applications. On
the same day the Court also declared the complaints admissible.

A hearing in both cases was held on 18 May 1999.

Judgment in each case was given by a Chamber of seven judges, composed as
follows:

Jean-Paul Costa (French), President,
Nicolas Bratza (British),
Loukis Loucaides (Cypriot),
Pranas Kuris (Lithuanian),
Willi Fuhrmann (Austrian),
Hanne Sophie Greve (Norwegian),
Kristaq Traja (Albanian), Judges,

and also Sally Dollé, Section Registrar.

3. Summary of the judgments

Complaints
Mr Lustig-Prean and Mr Beckett complained that the investigations into their
sexual orientation and their subsequent discharges violated their right to
respect for their private lives, protected by Article 8 of the Convention,
and that they had been discriminated against contrary to Article 14.

Ms Smith and Mr Grady made the same complaints under Articles 8 and 14. They
further complained that the Ministry of Defence policy against homosexuals
and consequent investigations and discharges were degrading contrary to
Article 3 (prohibition of inhuman or degrading treatment or punishment), and
that the policy limited their right to express their sexual identity in
violation of Article 10 (freedom of expression) and that they did not have
an effective domestic remedy for their complaints as required by Article 13.
Article 14 was also invoked in conjunction with the complaints under
Articles 3 and 10.

Article 8
The Court considered the investigations, and in particular the interviews of
the applicants, to have been exceptionally intrusive, it noted that the
administrative discharges had a profound effect on the applicants' careers
and prospects and considered the absolute and general character of the
policy, which admitted of no exception, to be striking. It therefore
considered that the investigations conducted into the applicants' sexual
orientation together with their discharge from the armed forces constituted
especially grave interferences with their private lives.

As to whether the Government had demonstrated "particularly convincing and
weighty reasons" to justify those interferences, the Court noted that the
Government's core argument was that the presence of homosexuals in the armed
forces would have a substantial and negative effect on morale and,
consequently, on the fighting power and operational effectiveness of the
armed forces. The Government relied, in this respect, on the Report of the
Homosexual Policy Assessment Team (HPAT) published in February 1996. The
Court found that, insofar as the views of armed forces' personnel outlined
in the HPAT Report could be considered representative, those views were
founded solely upon the negative attitudes of heterosexual personnel towards
those of homosexual orientation. It was noted that the Ministry of Defence
policy was not based on a particular moral standpoint and the physical
capability, courage, dependability and skills of homosexual personnel were
not in question. Insofar as those negative views represented a predisposed
bias on the part of heterosexuals, the Court considered that those negative
attitudes could not, of themselves, justify the interferences in question
any more than similar negative attitudes towards those of a different race,
origin or colour.

While the Court noted the lack of concrete evidence to support the
Government's submissions as to the anticipated damage to morale and
operational effectiveness, the Court was prepared to accept that certain
difficulties could be anticipated with a change in policy (as was the case
with the presence of women and racial minorities in the past). It found
that, on the evidence, any such difficulties were essentially conduct-based
and could be addressed by a strict code of conduct and disciplinary rules.
The usefulness of such codes and rules was not undermined, in the Court's
view, by the Government's suggestion that homosexuality would give rise to
problems of a type and intensity that race and gender did not or by their
submission that particular problems would arise with the admission of
homosexuals in the context of shared accommodation and associated
facilities.

Finally, the Court considered that it could not ignore widespread and
consistently developing views or the legal changes in the domestic laws of
Contracting States in favour of the admission of homosexuals into the armed
forces of those States. Accordingly, convincing and weighty reasons had not
been offered by the Government to justify the discharge of the applicants.
While the applicants' administrative discharges were a direct consequence of
their homosexuality, the investigations conducted into the applicants'
sexual orientation deserved separate consideration, because the
investigations continued after the applicants had admitted their
homosexuality. The Government suggested that the investigations continued in
order to verify the admissions of homosexuality so as to avoid false claims
by those seeking an administrative discharge from the armed forces. This
argument was rejected by the Court because both applicants wished to remain
in the armed forces. In addition, the Court was not persuaded by the
Government's argument that medical, security and disciplinary reasons
necessitated the investigations. The Court rejected the Government's
submission that the applicants knew they were not obliged to participate in
the interviews, finding, in this latter respect, that the applicants had no
real choice but to co-operate, as they wished to keep the investigations as
discreet as possible. Accordingly, the investigations conducted after the
applicants' confirmed their homosexuality were also considered unjustified.

The Court therefore took the view that neither the investigations nor the
discharges of the applicants were justified within the meaning of Article 8
§ 2.

Article 14 in conjunction with Article 8
The applicants argued that they had been subjected to discriminatory
treatment as a result of the
Ministry of Defence policy against homosexuals in the armed forces. The
Court considered that this
complaint did not give rise to any issue separate to that already considered
under Article 8.

Article 41
The Court considered that the issue of just satisfaction was not yet ready
for decision and reserved
the question for a separate judgment.

Article 8 alone and in conjunction with 14
Since these complaints were similar to those of Mr Lustig-Prean and Mr
Beckett, the Court adopted the same reasoning and reached the same
conclusion.

Article 3 alone and in conjunction with Article 14
The Court noted that it had already indicated, in the context of the
complaints under Article 8, why it considered that the investigation and
discharge together with the blanket nature of the policy of the Ministry of
Defence were of a particularly grave nature. In addition, the Court did not
exclude that treatment grounded upon a predisposed bias on the part of a
heterosexual majority against a homosexual minority as in the present case
could, in principle, fall within the scope of Article 3. It also accepted
that the Ministry of Defence policy together with the consequent
investigations and discharges were undoubtedly distressing and humiliating
for each of the applicants. However, the Court did not consider that, in the
circumstances of the case, the treatment reached the minimum level of
severity which would bring it within the scope of Article 3.

It accordingly concluded that there had been no violation of Article 3
either alone or in conjunction with Article 14.

Article 10 alone and in conjunction with Article 14
The Court considered that the freedom of expression element of the case was
subsidiary to the applicants' right to respect for their private lives which
was principally at issue. The Court therefore found that it was not
necessary to examine the applicants' complaints under Article 10 either
alone or in conjunction with Article 14.

Article 13 in conjunction with Article 8
The applicants argued that the judicial review proceedings did not
constitute an effective domestic remedy within the meaning of Article 13.

The Court noted that the sole issue before the domestic courts in the
context of the judicial review proceedings was whether the policy was
irrational and that the test of irrationality was that expounded by Sir
Thomas Bingham MR in the Court of Appeal. According to that test, a court
was not entitled to interfere with the exercise of an administrative
discretion on substantive grounds save where that court was satisfied that
the decision was unreasonable, in the sense that it was beyond the range of
responses open to a reasonable decision-maker. In judging whether the
decision-maker had exceeded this margin of appreciation, the human rights
context was important, so that the more substantial the interference with
human rights, the more the court would require by way of justification
before it was satisfied that the decision was reasonable.

The Court also noted that Sir Thomas Bingham MR emphasised that the
threshold beyond which a decision would be considered irrational was a high
one and it considered that this was confirmed by the judgments of the High
Court and of the Court of Appeal. Both of those courts had commented very
favourably on the applicants' submissions challenging the Government's
justification of the policy and both courts considered that there was an
argument to be made that the policy was in breach of the United Kingdom's
Convention obligations. The Court observed that, nevertheless, those
domestic courts were bound to conclude, given the test of irrationality
applicable, that the Ministry of Defence policy could not be said to be
irrational.

The Court therefore found that the threshold at which the domestic courts
could find the policy of the Ministry of Defence irrational had been placed
so high that it effectively excluded any consideration by the domestic
courts of the question of whether the interference with the applicants'
private lives had answered a pressing social need or was proportionate to
the national security and public order aims pursued by the Government,
principles which lie at the heart of the Court's analysis under Article 8.

The Court concluded, accordingly, that the applicants did not have an
effective domestic remedy in relation to the violation of their right to
respect for their private lives.

Article 41
As in the Lustig-Prean and Beckett case, the Court considered that the issue
of just satisfaction was not yet ready for decision and reserved the
question for separate judgment.

Judge Loucaides expressed in both cases a partly dissenting and partly
concurring opinion which is annexed to the judgments.

The Court's judgments are accessible on its Internet site
(http://www.dhcour.coe.fr) on the day of their delivery.

Footnote
[fn1] The judgment becomes final subject to Articles 43 and 44 of the
Convention:

Under Article 43, within three months from the date of the Chamber judgment,
any party to the case may, in exceptional cases, request that the case be
referred to the 17-member Grand Chamber of the Court. A panel of five judges
accepts the request if the case raises a serious question affecting the
interpretation or application of the Convention or its Protocols, or a
serious issue of general importance.
Under Article 44, the Chamber judgment becomes final (a) when the parties
declare that they will not request that the case be referred to the Grand
Chamber; or (b) three months after the date of the judgment, if reference of
the case to the Grand Chamber has not been requested; or (c) when the panel
of the Grand Chamber rejects the request to refer under Article 43.

ILGA EUROPE PRESS RELEASE AFTER THE JUDGEMENT

ILGA-EUROPE CALLS ON GERMANY, GREECE, POLAND AND TURKEY TO LIFT THEIR
RESTRICTIONS ON MILITARY SERVICE BY LESBIANS AND GAY MEN FOLLOWING EUROPEAN
COURT OF HUMAN RIGHTS RULING

Yesterday's overwhelming and unqualified condemnation by the European Court
of Human Rights of the UK's ban on service in the armed forces by lesbian
and gay persons leaves no doubt that similar restrictions in certain other
member states of the Council of Europe are in clear violation of the
European Convention on Human Rights.

In Germany, lesbians and gay men are disqualified from becoming officers or
military instructors. Defence Minister Rudolf Scharping recently supported
these restrictions, commenting that "homosexuality is cause for considerable
doubt of suitability and shuts out employment in such functions as leading,
education and training in connection with soldiers."

In Greece and Poland lesbian and gay service personnel can be discharged on
the basis that they suffer from a personality disorder, while in Turkey a
law dating from 1996 states that those who engage in "unnatural sexual
intercourse" are to be expelled from the army.

ILGA Europe calls on the governments of these countries to lift their
restrictions immediately. As parties to the European Convention on Human
Rights, they are under an obligation to secure for their citizens the rights
and freedoms protected by the Convention.  Yesterday's judgment leaves no
doubt that these rights include that of lesbians and gay men to serve in
armed forces of their country.

EUROPEAN COURT ON HUMAN RIGHTS: DIFFERENTIAL TREATMENT OF UNMARRIED
COHABITATION AS COMPARED TO MARRIAGE WITHIN MARGIN OF APPRECIATION
by Helmut Graupner, Rechtskomitee LAMBDA, Vienna

On June 29, in Nylynd v. Finland (Application No. 27110/95) (available at
http://www.dhcour.coe.fr/hudoc), the Court declared inadmissible (as
"manifestly ill-founded" within the meaning of Art. 35 § 3 of the
Convention) the complaint of a Finnish man who claimed to be the biological
father of a child born to his former partner who, at the time of birth, was
married to another man. He (inter alia) asserted a violation of Art. 14 of
the European Convention on Human Rights (ECHR) (prohibition of
discrimination) in connection with Art. 8 ECHR (right to respect for family
and private life) because under Finnish law - since the child was born in
wedlock and therefore the husband of the mother is legally presumed to be
the father - he has no right to have his biological paternity examined and
is totally barred from having his paternity established against the wishes
of the mother (who objected to such examinations). He maintained that the
mother's absolute right to decide on her child's fatherhood infringes his
rights under Article 14 of the Convention. Countering the claim of the
Finnish authorities, that this inequality was justified by the need to
protect the family the child now lives in, he argued that such legitimate
considerations as equality of sexes and the protection of the biological
parent-child relationship, including the rights of the father and child,
outweigh the need to defend the social institution of family. He points out
that the family unit, consisting of the then pregnant woman and himself,
enjoys no less protection under Article 8 of the Convention than does a
family created through marriage.

What in this case seems relevant for same-sex partnership cases is the
reasoning of the Court in rejecting the arguments of the applicant. First
the Court, by referring to its judgement in the transgender-case Sheffield &
Horsham (1998), explains that "not every difference in treatment will amount
to a violation of this Article [ Art. 14] . Instead, it must be established
that other persons in an analogous or relevantly similar situation enjoy
preferential treatment, and that there is no reasonable or objective
justification for this distinction [ ...] Contracting States enjoy a margin
of appreciation in assessing whether and to what extent differences in
otherwise similar situations justify a different treatment in law". Then the
"Court finds that, though in some fields the de facto relationship of
cohabitees is recognised, there still exist differences between married and
unmarried couples, in particular, differences in legal status and legal
effects. Marriage continues to be characterised by a corpus of rights and
obligations that differentiate it markedly from the situation of a man and
woman who cohabit." Therefore the Court concluded "that the [ unmarried]
applicant was not in a situation analogous to that of the [ married] child's
mother". So a legitimate aim and the reasonableness and objectiveness of the
differential treatment of mother and father need not even be examined,
neither proportionality of means employed to aims sought. Only at the time
of their cohabitation they could be considered to have been in an analogous
or relevantly similar situation and the differential treatment only insofar
has to be examined if pursuing a legitimate aim, being reasonable as well as
objective and proportionate as regards aims and means employed. (The Court
found these criteria be fulfilled in the present case.)

By denying that unmarried and married persons are in an analogous or
relevantly similar situation the Court even goes beyond the decision in
Saucedo Gomez v. Spain (Appl. 37784/97) (Jan. 26) where the Court assumed
unmarried and married persons to be in an analogous situation (regarding
provisions on allocation of the matrimonial home and payment of alimony)
then holding that differential treatment would be reasonable and objective
since the regulation of the legal status of married and unmarried couples
would fall into the Member States margin of appreciation. The Court stated
that "social reality shows the existence of stable unions between men and
women [outside marriage] ... It is not however for the Court to dictate, nor
even to indicate, the measures to be taken in relation to such unions, the
question being one within the margin of appreciation of the respondent
government, which has the free choice of the means to be employed, as long
as they are consistent with the obligation to respect family life protected
by the Convention."

Any way - be it for a lack of a relevantly similar situation or for the
reasonableness and objectiveness of the distinction - it seems that
(unmarried) same-sex couples could not successfully claim a breach of the
Convention (Art. 14) by the mere argument that they are treated less
favourable then married partners. (1)

One argument however remains. In Saucedo Gomez v. Spain the Court qualified
the differential treatment as (also) proportionate since the applicant
freely decided not to benefit from the advantages inherent in the status of
spouse by not marrying her partner. Since same-sex partners however are
barred from marriage it follows from this argument of the Court that
disadvantageous treatment of unmarried couples in general is reasonable and
objective (since falling into the States margin of appreciation) but that
such unfavourable differentiation affecting (unmarried) (same-sex) partners
who are barred from marriage would be disproportionate. (2) (3)

(1) Both decisions have been taken by Section IV of the Court (composed of
seven judges from Germany, Finland, Portugal, Ireland and Croatia in both
cases plus the Ukraine and Bulgaria in Nylynd and Spain and Switzerland in
Saucedo Gomez; by majority in Saucedo Gomez, unanimously in Nylynd). So it
seems not impossible - though not very probable - that another section finds
to other decisions.

(2) This argument however presupposes the ban from marriage as unjustified.
A ban justified (legitimate aim, objective and reasonable, proportionate)
would of course not render unfavourable treatment of such unmarried couples
(in relation to married ones) disproportionate (cf. the problem of
incestuous relations or underage partners). To be successful applicants
therefore would not only have to claim the unfavourable treatment in
relation to married partners and their ban from marriage but they would also
have to show their ban from marriage in itself being unjustifiable.

(3) Under Nylynd v. Finland however this argument would fail, since in this
decision the Court denies an analogous or relevantly similar situation
between unmarried and married couples (thus exempting distinctions from the
examination of a legitimate aim, objectivity and reasonableness and
proportionality). According to that decision unmarried same-sex couples
could only be considered to be in a relevantly similar situation with
unmarried different-sex couples. So under this decision no violation of Art.
14 could be argued if unmarried different-sex and unmarried same-sex couples
would be treated alike but both less favourable then (different-sex) married
partners. A violation could only be argued if unmarried same-sex couples are
treated less favourable then unmarried different-sex couples.

LATVIA: PROGRESS ON PARTNERSHIP LAW
by Juris Ludvigs Lavrikovs, Homosexuality Information Centre, Riga, Latvia

On 5 October 1999 the Human Rights and Public Affairs Commission of the
Saeima (Parliament) of the Republic of Latvia discussed for the first time a
draft law "On Registered Partnership of the Persons of the Same Gender".

This draft law was prepared by the Latvian National Human Rights Office in
cooperation with the Homosexuality Information Centre (HIC) and submitted to
the Parliamentary Commission on 28 September 1999. (See below)

Mr Olafs Bruveris, the Director of the Latvian National Human Rights Office,
was invited to the meeting of the Commission. During the meeting it was
decided not to reject the draft law but to send it to the Legal Office of
the Parliament. This office consists of 5 independent lawyers and its task
is to provide the parliamentary commissions with legal advice. The Legal
Office was asked to consider the draft law and to give advice on what is the
best way to change existing legislation to guarantee the rights of
same-gender couples.

At the same time the Homosexuality Information Centre, in cooperation with
two Riga gay clubs, "Purvs" and "XXL", organised a demonstration in support
of the draft law near the Parliament building. Supporters of the draft
partnership law held posters reading "Lesbian and gay rights are human
rights", "Families are different", "Isn't it nice to make people happy?",
"All are equal but some are more equal than others", etc. This demonstration
attracted very lively interest, not only from the Latvian media; journalists
from Russia and Western Europe were also present.

Opposite the demonstration three people were held one poster: "Against
homosexual marriage". As those three people explained to journalists, they
were from the newly-created organisation "Latvian Society without
Homosexuals".

In the week prior to the meeting of the Parliamentary Commission on Human
Rights and Public Affairs the issue of legal recognition of lesbian and gay
partnership was one of the most discussed topics in the Latvian media. With
few exceptions, TV and radio programmes and publications were neutral and
factual rather than negative and aggressive.

On 3 October 1999 a Member of the Latvian Parliament, Mr Tabuns, who is a
member of the Parliamentary Commission on Human Rights and Public Affairs,
expressed his negative attitudes towards all homosexual people in the main
evening TV news progamme, calling them "moral and physical cripples", and
denouncing homosexuality as "moral and physical deformity". The
Homosexuality Information Centre regards such statements as humiliating hate
speech and in the nearest future intends to sue the MP for stirring up
hatred against lesbians and gay men.

The Homosexuality Information Centre would like to thank individuals and
organisations in Latvia and abroad for the letters of support they sent to
the Parliamentary Commission. HIC regards this as a first step toward legal
recognition of lesbian and gay partnership, and welcomes the decision of the
Human Rights and Public Affairs Commission of the Parliament to discuss the
draft law further.

LATVIA: PARTNERSHIP LAW PRESENTED TO THE MEDIA AND SENT TO PARLIAMENT
by Juris Ludvigs Lavrikovs, Homosexuality Information Centre, Riga, Latvia

On 23 September 1999 a proposal to adopt a same-gender registered
partnership law was presented to the Latvian media during a press conference
at the Latvian National Human Rights Office.  On 28 September 1999 the
proposal was sent to the Human Rights and Public Affairs Commission of the
Saeima (Parliament) of the Republic of Latvia for discussion. This is an
unprecedented event in Latvia, with a state institution admitting that
lesbian and gay rights in the country are being seriously violated and
suggesting that it is the state's obligation to adopt a partnership law.

History
During the last five years Latvian lesbian and gay organisations (the
Latvian Association for Sexual Equality (LASE) and its successor, the
Homosexuality Information Centre (HIC)) have twice appealed to the Latvian
authorities to adopt legislation that would outlaw discrimination against
lesbians and gay men, as well as to introduce legislation on same-gender
registered partnership.  Foreign lesbian and gay organisations have been
asked to support these efforts through the sending of letters to the Latvian
authorities.  This has not, unfortunately, led to any debate on such laws,
much less the adoption of legislation.  Parliament's Commission on Human
Rights and Public Affairs, the Chancellery of the President of Latvia and
the Foreign Ministry, after receiving letters from Latvian and foreign
lesbian and gay organisations, requested that the Latvian National Human
Rights Office examine the legal situation for lesbians and gay men in Latvia
and in other countries and to present a report on the problems that
exist and solutions that might be adopted.

The Latvian National Human Rights Office was created in 1996 as an
"independent state institution established for the purpose of promoting the
observance of human rights and the fundamental rights and fundamental
freedoms of citizens … in the Republic of Latvia, in accordance with
international human rights agreements and conventions signed by Latvia [and]
the Constitution [of the Republic of Latvia]" (The law "On the National
Human Rights Office", adopted 17 December 1996, Article 1).

Research on lesbian and gay rights
In 1998 and 1999, the Latvian Human Rights Office, in co-operation with the
Homosexuality Information Centre, conducted a research project called
"Analysis of the Legal Situation for Lesbians and Gay Men in Latvia".  This
research project was one of the first of its kind in Latvia, examining the
issue of homosexuality in general and the matter of homosexuality and the
law in particular.  The work resulted in an extensive, 140-page report.  The
report consists of four major segments.  The first analyses whether Latvian
legislation guarantees legal protection to individuals irrespective of their
sexual orientation and examines whether same-gender couples are granted the
possibility to establish unions legally and to enjoy the rights and
obligations that are granted automatically to married couples.  The second
focuses on the way in which these issues are addressed in other countries.

A third segment examines the way in which the issue of homosexual rights is
addressed by such international organisations as the Council of Europe, the
Organisation for Security and Co-operation in Europe, the European Union and
the United Nations.  A detailed examination of decisions taken by the
European Court of Human Rights, the European Court of Justice and the UN
Committee is included.  The final segment of the research report contains
conclusions concerning the legal situation for lesbians and gay men in
Latvia.

At this time only the Latvian version of the report is available at the
Information and Documentation Centre of the Latvian National Human Rights
Office and at the Web site of the Homosexuality Information Centre at
http://www.gay.lv/projekts. Copies of the research report will be
distributed to various state institutions, colleges and universities and
non-governmental organisations in Latvia. In the near future an English
translation of those sections of the report that are relevant to Latvia will
be provided.

Results
According to the research, there is no legal protection for individuals on
the basis of sexual orientation in Latvia.  Discrimination against
homosexuals is practised, and it is not illegal.  A prohibition against
marriage between persons of the same gender and a failure to provide any
alternatives for same-gender unions - these represent a serious violation of
the rights of lesbian and gay couples.

It is concluded in the research report that situation violates the
principles of a democratic and pluralistic state.  It is Latvia's
international obligation to protect human rights, and this includes meeting
the requirements that are levelled against candidate countries for accession
to the European Union, as well as the requirements of the Latvian
constitution.

The authors of the research report have proposed a set of legislative
reforms to improve the situation and to provide legal equality for lesbians
and gay men.  One of the proposals is that a registered partnership law be
introduced.

Explanatory notes to the proposed law
Partnership among persons of the same gender is not recognised in Latvian
law, and same-gender couples suffer serious legal disadvantages and
discrimination.  The adoption of a law on registered partnership for persons
of the same gender can reduce this discrimination and improve the situation
for same-gender couples.

The research provides a complex of legislative reforms to improve this
situation and provide lesbians and gay with the legal equality. One of these
proposals is to introduce a registered partnership law.

At the moment partnership of the persons of the same sex are not recognised
by the Latvian law and same-sex couples are suffering from serious legal
disadvantages and discrimination. Adoption of a law on registered
partnership for the persons of same sex can reduce this discrimination and
to improve situation for same-sex couples.

Summary of the law
The proposed law would provide same-gender couples with an opportunity to
register their partnerships.  With the exception of those provisions which
regard religious institutions, the registration and dissolution of such
partnerships would be regulated by civil law, as well as other normative
acts regarding the registration and dissolution of marriages.

Registered partnership would have a similar legal effect as does marriage.
After adoption of the law, those laws and other normative provisions which
refer to marriage and married partners (except for provisions that concern
the adoption of children) would apply to registered partnerships and
registered partners.  Registered partners would have similar rights and
obligations to those of married partners.

The authors of the report point out and used as example similar laws adopted
in Denmark, Norway, Sweden, Iceland and the Netherlands, and a law drafted
in Finland.

Aims and reasons for the proposed law
The main reason for the proposed law is that there is a need to allow two
men or two women to form legally based partnerships in Latvia.  The law "On
registration of the partnership of two persons of the same gender" would
regulate mutual relations between the two persons of the same gender insofar
as legal issues are concerned, as well as the relationship between such
persons and third parties, society, and the state.

Marriage is the only form of cohabitation that is presently recognised by
law.  When entering marriage, a man and a woman can express their will to
create a family in public.  Marriage does not, however, have only a symbolic
meaning.  Married partners gain certain mutual rights and obligations,
including toward third parties, society and state.  Article 35.2 of the
Civil Law of the Republic of Latvia currently prohibits marriage between two
persons of the same gender.  There is no other law or normative act that
provides legal recognition of persons of the same gender.  Such people, in
other words, are denied an opportunity to express their will to live
together and to regulate in a legal way personal, property and civil
relations mutually and with respect to third parties and the state.

The institution of registered partnership between persons of the same gender
would in no sense set up a legal comparison to the institution of marriage
between a man and a woman.  The proposed partnership law would not abolish
the aforementioned article of the Civil Law which prohibits marriage between
two persons of the same gender.  Taking into account the specific nature of
the registration of a partnership between two persons of the same gender,
the form and procedure of the existing institution of marriage have been
taken merely as an example for the registration of same-gender partnerships.
The proposed law would provide that registered partners have rights and
obligations that are similar to those of married persons, but that would not
be the case in all instances.  The main goal of the proposed law is to
achieve legal recognition of partnerships between persons of the same
gender.  The proposed law would provide same-gender partners with a legal
basis for building and regulating mutual relations, as
well as relations with third parties and the state.  The adoption of the law
would provide a better opportunity for same-gender partners to regulate
their lives as they wish and choose to do.  The law would promote formation
of long-term and responsible unions between same-gender individuals.  The
law would also have an important educational purpose - recognition of
partnerships between same-gender persons by the state would set a good
example of tolerance in society.  The institution of registered partnership
would allow same-gender partners the choice of formalising their
relationships or refraining from doing so - a choice which couples of
opposite gender already have.

Recognition of and a positive attitude toward committed and long-term
relationships between same-gender partners will also help to decrease the
incidence of unstable, casual relations, and that will significantly help to
decrease the spread of HIV infection.

The proposed law is ethically neutral.  The authors of the draft law believe
that it is not a task of legislation to tell capable adults how to regulate
their private lives or to condemn certain forms of cohabitation.  Instead
the state must provide them with support and help in forming and regulating
their lives as long as their choices do not threaten the security and health
of other members of society.  The registration of same-gender partnerships -
a process which primarily concerns the private relationship between two
adults - simply cannot create any such threats.  On the contrary: This law
would provide legal recognition to a significant segment of society,
allowing people to form and regulate their relationships in a civilised
manner.  Objections and intolerance toward the registration of same-gender
persons, as expressed by some members in society, can in no way justify a
denial of human rights for lesbians and gay men through a failure to provide
legal recognition for their partnerships.

The protection and promotion of human rights and equality for all persons in
society is a cornerstone for every pluralistic and democratic society.
Since the restoration of its independence, the Republic of Latvia has been
expressing its will to build such a society.

The proposed law is also neutral from the point of view of religion.  It
does not contain any provisions concerning the registration of same-gender
partnerships by religious institutions, because this is an internal issue
for each religious denomination.  Religious objections against such
registration cannot be a reason to reject this law, because the Latvian law
on religious organisations provides for a separation between church and
state in Latvia.  The primary task of the state, indeed, must be to provide
help for all of its citizens and residents, along with recognition
concerning issues related to their personal and civil relationships.

Registration
Registration of same-gender partnerships, according to the draft law, would
take place under the auspices of existing laws concerning the registration
of marriage.  These are Articles 32-83 of the second sub-section,
"Registration and dissolution of marriage", of the first part ("Family law")
of the Latvian Civil Law, Articles 13-21 of the third sub-section,
"Registration of marriage", of the law "On acts of civil status", and
Articles 19-56 of the third sub-section, "Registration of marriage", in the
Ministry of Justice instruction "On the registration of acts of civil status
in the Republic of Latvia".  The provisions of these documents relating to
religious institutions would not be relevant for registered partnership.

Conditions for partnership registration
These are Articles 32 to 83 of the second subsection "Registration and
dissolution of marriage" of the fist part "Family Law" of the Civil Law;
Articles 13 to 21 of the third subsection "Registration of marriage" of the
law "On acts of civil status"; and Articles 19 to 56 of the third subsection
"Registration of marriage" of he Instruction of the Ministry of Justice "On
Registration of acts of civil status in the Republic of Latvia".

These provisions of the above mentioned documents related to religious
institutions will not be relevant to registered partnership.

The law "On registration of the partnership of persons of the same gender"
would apply only to two persons of the same gender.  Two persons of the same
gender who wish to register their partnership and who can satisfy the
conditions that are laid down in the proposed law will, provided that there
are no legal obstacles, be able to register their partnership officially.

Such persons will have to satisfy the same conditions which apply to those
who wish to register a marriage.  They will have to be at least 18 years of
age, although in exceptional conditions a person aged 16 or older would be
permitted to register a partnership if his or her parents or custodian gave
authorisation and if the other person were at least 18 years of age.  If a
parent or custodian refuses permission without reasonable explanation, the
refusal can be appealed to the Latvian Orphans' Court.

Registration would not be permitted for persons declared uncapable by a
court for reasons of mental disturbance.  Registration would be prohibited
among relatives of the first degree, brothers, sisters, half-brothers,
half-sisters, adopters and adoptees, and custodians and persons in custody.
The latter rule would not apply in those instances when the civil relations
established by adoption or custody have ended. Persons already registered in
a marriage or another partnership would not be allowed to enter a new
partnership.  At least one of the parties to the partnership would have to
be a citizen or permanent resident of Latvia.

Announcement
Prior to the registration of a partnership there would be an official
announcement, the aim of which would be to allow anyone who has an objection
to the registration or whose rights would be violated by the registration to
express his or her concerns.

The registration ceremony
The registration of a partnership between two persons of the same gender
would involve a specific ceremony.  A clerk from the office for registration
of acts of civil status would be present in official capacity, and the
registration would occur in the presence of both partners and two witnesses
of full age.  A note of the registration of the partnership would be
recorded in a special register, and the note would be signed by the
partners, the witnesses and the official who is present.  A seal with an
image of the national emblem would confirm the note.

The partners would receive a certificate of the registered partnership, and
notation of same would be marked in their passports, noting the registered
partner's name and surname, identification number and date of birth, as well
as the place and time of registration and the number of the registered
partnership.

Dissolution of a registered partnership
The dissolution of a registered partnership would occur in accordance with
existing laws on the dissolution of marriages.  This would be an issue that
is the competence of the Latvian courts.

A registered partnership would be considered dissolved from the day on which
the relevant court ruling takes effect.  Courts would be allowed to dissolve
a registered partnership at the request of one or both of the registered
partners.

A request for dissolution could be filed on the following grounds:
the other partner has created a threat to the life or health of the
petitioner;
the other partner has left the petitioner and the absence has lasted for at
least one year;
the other partner has, since the registration of the partnership, become ill
with a long-term or untreatable mental disease or a serious infectious
disease;
if the other partner has committed an offence which compromises the
petitioner's honour or has lived so dishonestly or immorally that further
cohabitation is impossible;
if the registered partnership has become meaningless to the point where
future cohabitation is not possible;
if the registered partners have lived separate lives for at least three
years;
if both parties agree to the dissolution (these grounds can be claimed for
dissolution no sooner than one year after the registration of the
partnership).

The legal effect of a registered partnership
The legal effect of a registered partnership, with a few exceptions, would
be similar to the legal effect of a marriage.  The laws and normative acts
which apply to marriage and married partners would, with some exceptions,
also apply to registered partnerships and partners.  The main exception is
that registered partners would not be allowed to adopt children (Articles
162-176 of the Civil Law, which relate to this right, would not apply to
registered partners).  Laws on the personal rights and obligations of
partners (Articles 84-88 of the Civil Law), and the property relationship
between partners (Articles 89-145) would apply to registered partners.  The
same is true with respect to laws and normative acts relating to inheritance
issues (Articles 382-840), pensions and social insurance, taxation,
immigration and citizenship, registration of residential space, medical
issues, civil service, and the rights of partners during a criminal process.

In the field of social security, too, registered partners would have the
same obligations and rights as married partners - in decisions on the
allocation of social and unemployment benefits to one partner, for example,
the income of the other partner would be taken into consideration.

The adoption of the law would create a new concept in Latvian civil law -
"registered partnership".   Under civil status, persons who have registered
a partnership would be "registered partners".

International law
International treaties to which Latvia is party would not apply to
registered partnerships and partners unless the contracting parties to the
respective treaty have agreed otherwise.  Registered partnerships from other
countries would automatically be recognised in Latvia.

Draft Law of the Republic of Latvia
"On Registration of the Partnership of Persons of the Same Gender".

Article 1
Two persons of the same gender can register their partnership.

Article 2
Registration of partnership

(1) Registration of partnership takes place according to
Articles 32 to 58 of the second subsection, "Registration and Dissolution of
Marriage", of the first part, "Family Law", of the Civil Law of the Republic
of Latvia,
Articles 13 to 21 of the third subsection, "Registration of Marriage", of
the law "On Acts of Civil Status", and - Articles 19 to 56 of the third
subsection, "Registration of Marriage", of the Instruction of the Ministry
of Justice "On Registration of Acts of Civil Status in the Republic of
Latvia".
All provisions of those documents regarding religious institutions are not
covered by this law.

(2)  Partnership can be registered if both parties or at least one party is
a citizen of the Republic of Latvia, or a citizen of another country or
person without citizenship who possesses a valid permanent residency permit
in the Republic of Latvia.

Article 3
Legal effect of partnership registration

(1) After a partnership is registered, parties to the partnership will have
the same rights and obligations as married partners.

(2) All laws and legislative acts regarding marriage and married partners
will automatically cover registered partnership and registered parties.

(3) Laws and legislative acts regarding the joint adoption of children will
not cover registered partners.

(4) All laws and legislative provisions referring to married partners
depending upon their gender, such as husband and wife, will not cover
registered partners.

(5) International treaties will not cover registered partnership.
International treaties will cover registered partnership in those instances
when parties to the respective treaty have agreed to do so.

(6) Similar partnerships registered in other countries will automatically be
recognised in the Republic of Latvia.

Article 4
Dissolution of partnership

(1) Registered partnership will end or will be dissolved according to
Articles 59 to 83 of the second subsection, "End and dissolution of
marriage", of the first part, "Family Law", of the Civil Law of the Republic
of Latvia.

(2) Partnerships registered according to this law can be dissolved only by
the Latvian courts.

BAN ON SEXUAL ORIENTATION DISCRIMINATION PROPOSED IN ITALY
By Mark Bell, University of Leicester.

New proposals for anti-discrimination legislation in Italy include
discrimination based on sexual orientation ['orientamento sessuale']. The
initiative has been brought forward by the Minister for Equal Opportunities,
Laura Balbo, and was formally approved as a legislative proposal by the
government on 8 October.

The draft law seeks to promote the full realisation of the principle of
equality by ensuring non-discrimination on grounds of sex, race, ethnic
origin, language, religious or personal conviction, political opinion,
disability, age, sexual orientation, personal or social condition (Article
1). The ban on discrimination is with a view to ensuring the effective
participation of all in the political, economic and social life of the
country (Article 1). As such, the law applies beyond relations in the
employment sphere, although there seems to be an expectation that this will
be one of the areas most directly affected.

Article 2 forbids indirect discrimination. Significantly, paragraph 4 of
Article 2 requires the public administration to integrate the principles of
non-discrimination and equal opportunities into general policies. Moreover,
there is specific mention of the need to incorporate equal opportunities
into employment policy.

Article 3 provides for means of redress. In particular, a judge may not only
order an end to the discriminatory behaviour, but also the removal of its
effects, which is potentially more far-reaching. Paragraph 4 of Article 3
provides for actions by associations representing the rights and interests
of the groups affected by discrimination where the discrimination is of a
collective character.

The penalties for an act of discrimination are a maximum of 3 years
imprisonment or a fine between L. 200 000 and L. 2 000 000.

This is an ambitious and worthy initiative, clearly drawing inspiration from
the new commitment to non-discrimination in Article 13 of the EC Treaty. As
such, the Italian government has given an example to the other EU member
states (and those wishing to accede to the EU). Article 13 EC may not
require immediate implementation of new anti-discrimination norms, but it
should prompt governments all over Europe to reconsider the sufficiency of
the existing legal resources. The hard work of getting the proposals through
the parliament naturally still lies ahead. Nonetheless, the proposal must be
commended for its forward-looking nature, and valuable innovations which
should instruct law reforms in other states. In particular, the requirement
for the integration of non-discrimination into policies across the public
administration, as well as the legal standing provided for non-governmental
associations seem important to enhancing the ultimate effectiveness of the
law.

Sources: La Repubblica, 8-11 October 1999, http://www.repubblica.it
For the text of the law, see
http://www.repubblica.kataweb.it/images/cittadino.lex/cittadino.gif

SWISS PARLIAMENT VOTES FOR REGISTERED PARTNERSHIP
From AFP, Paris,  Tuesday 28 September 1999

BERNE (AFP) - On Monday, 27 September, a large majority of the Federal
Assembly voted in favour of a private member's motion proposing that
same-sex couples should be entitled to register their partnerships
officially.

In response to the initiative of Jean-Michel Gros (Swiss Liberal Party), the
Assembly instructed its Legal Affairs Committee to draft a Bill intended to
eliminate the discrimination that such couples now experience. The motion
was adopted by 105 members against 46. It reccommends that the provisions
currently applicable to heterosexual couples for mutual assistance, joint
responsibility for debts and joint income tax returns should be
extended to such partnerships and that in the event of one partner's death
the other should become the residuary legatee by default. Furthermore,
provided the partners were really co-habiting, a foreign registered partner
would be entitled to a residence permit.

On the other hand, registration would not entitle the partners to any right
to adoption or assisted procreation. The conservative opposition hopes that
the rural population will be opposed to any such initiative.

Whether this is indeed the case will become apparent when the results of the
consultation regarding the Report on the legal status of same-sex couples
within each Canton are published, which will probably be at the end of 1999.
The Federal Department of Justice and the Police launched this consultation,
which puts forward five options ranging from specific provisions for
lesbians and gay men to enabling them to get married, at the end of last
June.

According to the Swiss Consitution, any MP is free to table a Bill which, if
it is adopted by both legislative Chambers under the rules of procedure,
cannot be blocked unless a sufficiently large number of citizens call for it
to be subject to a referendum. According to several opinion polls, the
official registration of homosexual partnerships is acceptable to a
substantial majority of Swiss citizens.

REPEAL SECTION 28 HITS THE ROAD
By Stonewall

The campaign to repeal one of the most significant anti-gay laws, Section
28, is to intensify over the next few months.  Stonewall, the lesbian and
gay lobbying group, are running a series of roadshows across the country in
the lead up to the Queen's Speech in November.

The Section 28 Roadshow will involve five high profile meetings in the Town
Halls of Manchester, Birmingham, Bristol, Brighton and Newcastle.

Section 28 is a highly symbolic piece of legislation for the lesbian and gay
community.  Passed in 1989 under the Thatcher Government, it was intended by
its creators to prevent schools dealing with lesbian and gay issues.  56% of
teachers believe the existence of Section 28 is damaging young lesbians and
gays in schools (Playing it Sate, Institute of Education, 1998)

At each meeting Stonewall will chair a panel of speakers including the local
council representatives, teachers and a local Member of Parliament.

It is well known that the Local Government Minister, Rt. Hon Hilary
Armstrong MP, supports the repeal of section 28, and these roadshows will
make the case for repeal through the forthcoming local Government Bill.

Already 30,000 people have sent Stonewall's campaign postcards to urge the
Minister to do just this.

The momentum behind this timely campaign has gathered pace since the
horrific bombing in April of a gay pub in Soho.  Ministers have acknowledged
the link between discriminatory laws, the prejudice they foster, and the
hate crimes such as the Soho bombing.  Campaigners are determined that the
Government should make good their longstanding commitment to repeal Section
28.

Angela Mason, executive director of Stonewall, said: "Our campaign roadshow
meetings will be a focus for grassroots campaigners and will demonstrate to
the Government the great support that exists around the country for
repealing Section 28.

"Section 28 will be a real test for this Government.  It's not a time for
excuses or backtracking.  It must now seize the chance to prove itself on
equality issues and to continue the process of welcoming lesbians and gays
into society rather than reinforcing their alienation from it."

ROMANIA: SAME SEX RELATIONS
By Adrian Coman

On September 24, 1996, the (Parliament) Committee to mediate the law
regarding the modification of the Penal Code, adopted the Senate version of
article 200. Same sex relations were punished if taking place in public
places or if causing public scandal.

At the same time, this version (currently in force – see art. 200 annexed)
denies explicitly the rights of gays and lesbians to free association and
free expression.

After the change of the regime in the end of 1996, the Romanian Government
submitted to the Parliament (May 1998) a draft law to modify the Penal Code
and the Penal Procedure Code, that included the abolishment of article 200.
The Government draft law was rejected by the Chamber of Deputies (lower
Chamber of Parliament).

After 3 years, on September 23, 1999, the Romanian Parliament is again asked
to decriminalize consenting same sex relations between adults. Romania is
the only member state of the Council of Europe that maintains a criminal
anti gay legislation, despite the many international pressures.

Below you find more information about the current Government initiative, as
reflected by two MEDIAFAX press releases (translation into English by
ACCEPT).

Art. 200 – ACCEPT Reaction / ACCEPT Welcomes the Ministry of Justice
Initiative to Abolish Article 200

BUCUREªTI, September 24, 1999 (MEDIAFAX) – The human rights association
"ACCEPT" welcomes the Ministry of Justice initiative to abolish article 200
of the Penal Code on same sex relations, initiative that is provided for by
the draft law on modifying the Penal Code and Penal Procedure Code, adopted
on Thursday by the Government.

"We are happy because the Government maintains its policy regarding sexual
minorities and we hope that this institution be officially and unofficially
supporting its approach also at the moment of debating this draft law in
Parliament. We have the experience of the last year failure, taking into
account that the same draft law was rejected last ear by the Chamber of
Deputies" stated Adrian Coman, Executive Director of "ACCEPT" on Friday, for
MEDIAFAX.

"ACCEPT" is a non governmental human rights organization fighting for gay
rights in particular.
In June 1998, the Chamber of Deputies rejected the draft law on the
modification of the Penal Code, missing 5 votes in favor. The draft law had
been adopted article by article, and at the final vote a majority of 172
deputies was need, being an organic law. In favor of the law were 67
deputies, 94 were against and 81 were not present.

At that moment, the consequences  of not adopting the modifications of the
Penal Code were related to the European requests regarding humosexuals (…)
The Ministry of Justice submitted on Thursday 4 draft laws previously
approved by the Government regarding the modification of the Penal Code and
Penal Procedure Code (…). MEDIAFAX
Romanian Orthodox Church (BOR) maintains its point of view on article 200
regarding homosexuality

BUCURESTI, September 24, 1999 (MEDIAFAX) – BOR maintains its point of view
on the abolishment of article 200 of the Penal Code on punishing same-sex
relations, according to sources within Romanian Patriarchy, on Friday,
quotes MEDIAFAX.

BOR considers that legalizing homosexuality by abolishing art. 200 may
present homosexuals as "people with a normal behavior", whose "moral
promiscuity" may be an alternative to the Christian Morality. High BOR
representatives think that maintaining punishment for homosexuality may
protect citizens confronted with the spread of this vice against human
nature.

But at the same time, BOR considers that the punishment to prison is not the
most efficient solution to "eradicate the scourge called homosexuality".

"The Orthodox Church condemns the sin and not the sinner. What we want is to
identify clear formulas to underline the status of abnormality of homosexual
practices. We believe that public manifestations of those who practice this
vice, including by means of propaganda in clubs, own magazines, etc., should
not be encouraged. The Church is trying to make the Romanians aware that
this is an abnormal practice, with very serious consequences for the
Romanian people's spirit, in the context where family is still very
important for the Romanian society", high officials have stated several
times since the conflict on this issue aroused […]".
MEDIAFAX News Agency

EUROPEAN CHARTER OF HUMAN RIGHTS?
Brussels, 13/10/1999 (Agence Europe)

At a press conference organised two days before the summit, British
Liberal-Democrat Andrew Duff and Austrian Green Johannes Voggenhuber,
co-rapporteurs for the European Parliament on the European Charter for
Fundamental Rights which is to be one of the topics of the extraordinary
Council of Tampere, called on the Heads of State and Government to come down
in favour of a binding Charter.

Mr. Duff notes that, according to the Council's draft, the Charter would
only be a simple description of the "status quo", without real guarantees,
whereas what is needed is a "mandatory" document not only for European
institutions but also for Member States. "We shall provide our
representatives within the body drawing up the charter (see below) the brief
to promote this concept of a binding 'Bill of Rights'", Mr. Duff stated,
while saying he was aware of the delicate problems that this exercise
raised, notably regarding relations between the European Union and the
"Court of Strasbourg" (the European Court on Human Rights), the
jurisprudence "of our own Court of Justice" and the question of "privileged
access" for citizens to this Court. All these problems will be raised at the
next Intergovernmental Conference on the review of the Treaty, he noted. As
for Mr. Voggenhuber, he called on the Tampere Summit to agree to amend the
procedure for drawing up the Charter and the remit of the body responsible
for drawing up the document, especially in order to update the catalogue of
citizens' rights, including those relating to the information society and
new technologies. The Charter must be binding and cover all EU policies,
and, therefore, the three pillars of the Treaty, he said, stressing that
fundamental rights were "indivisible", and that a catalogue of "empty
rights", without any guarantee, would be more of an "alibi" than progress.

Drawing up such a document was a "natural task for the representatives of
the people", he said, stressing the role Parliament would have to play in
the future body which will draw up the Charter.

On Monday, the EU Council reached agreement on the composition of the body
that will draw up the draft Charter, and which will therefore be made up of:
one representatives of each of the Heads of State or Government, a
representative of the President of the European Commission, sixteen
representatives from the European Parliament (which it will itself choose),
thirty representatives of national parliaments (two per parliament). In
addition, agreement was also reached on the presence of observers and bodies
invited to give their views, exchanges of views with applicant countries and
the solemn proclamation of the Charter by the European Parliament, the
Commission and the Council (also see EUROPE of 11/12 October, p.4).

5.(EU) EU/HUMAN RIGHTS: Council approves its first annual report

Luxembourg, 13/10/1999 (Agence Europe) - During its meeting on 11 October in
Luxembourg, the General Affairs Council approved its first annual report on
human rights, drawn up following the Vienna Declaration of 10 December 1998
on the 50th anniversary of the Universal Declaration of Human Rights, which
provides for the annual publication of this report as one of the means for
stepping up action by the EU with regard to human rights. The report
stresses that the Union's policy in the field of human rights applies in
relations between the EU and third countries, but it must begin at home.

The policy mainly focuses on the fight against racism (recalling that the
European Commission must present draft directives on job discrimination and
on social security, education, sporting and cultural activities before the
end of the end) and states that human rights cannot be disassociated from
economic development and social justice.

Furthermore, the Council welcomed the fact that the first regular Forum for
discussion on human rights, in the context of follow-up to the Vienna
Declaration that the European summit of 11 and 12 December 1998 had taken on
board, is to be held on 30 November and 1 December. The Declaration and the
Forum are initiatives that may also contribute to transparency and encourage
dialogue with civil society, by bringing the Union closer to citizens, state
the conclusions, which specify that the Council has agreed to use the annual
report as an element for discussion during this first Forum.

ILGA-EUROPE LAUNCHES GUIDE ON THE TREATY OF AMSTERDAM

On 1 May 1999, the Treaty of Amsterdam came into force. It brought about a
couple of changes relevant for lesbians and gays in the European Union,
including a new anti-discrimination clause, Article 13, which covers
discrimination on the grounds of sexual orientation, together with sex,
racial or ethnic origin, religion, belief, disability and age. It is the
first time that discrimination on the grounds of sexual orientation has been
mentioned in the EU Treaties. Article 13 however has no direct effect but
only provides the legal basis for the EU to take appropriate action to
combat discrimination.

With the financial support of the European Commission and the Federal
Government of Austria, ILGA-Europe has put together a 80-page guide on the
new opportunities offered by the Treaty of Amsterdam with regard to the
protection from sexual orientation discrimination for the lesbian and gay
citizens of the European Union. The Guide presents the historic developments
leading up to the Treaty and the key changes introduced by it, and explores
in detail the scope and limitations of Article 13 and the other new
provisions relating generally to human rights. It also contains useful
background information on the European Union and presents a set of
recommendations for action under the current Treaty framework as well as for
further revisions to be debated at the next intergovernmental conference to
start in January 2000, including the adoption of an EU Bill of Fundamental
Rights. Authors contributing to the Guide include Mark Bell, Sejal Parmar
and Kees Waaldijk.

ILGA-Europe's Guide – entitled "After Amsterdam: Sexual Orientation and the
European Union" – has been produced in print in four languages: English
(5000 copies), French, German and Spanish (1000 copies each). It can be
ordered at the following email address: [email-masked]. The Guide is
now also available at ILGA-Europe's web-site:
http://www.steff.suite.dk/ilgaeur/

Seminar in Vienna
The Guide was launched at a seminar organised by ILGA-Europe in Vienna from
2-3 October 1999. The seminar gathered around 45 representatives from
lesbian and gay organisations in the EU member states and the candidate
countries to discuss the new opportunities offered by the Treaty of
Amsterdam and further joint lobbying strategies to work for a comprehensive
implementation of Article 13 and further protection from sexual orientation
discrimination under future Treaty revisions, such as the proposed Bill of
Rights. The seminar also debated activities to make sure that the respect of
the human rights of gays and lesbians and non-discrimination based on sexual
orientation be adequately addressed in the accession process of new members
and be made a pre-condition for membership in the European Union.

The seminar also discussed in detail the draft proposals of the Commission
for the implementation of Article 13 presented by the Commission last May.
The Commission proposals consist of two directives and one action programme.
While the proposed directive to prohibit discrimination in employment and
occupation and the action programme cover all grounds listed in Article 13,
the proposed directive to prohibit discrimination in other areas of
Community competence, such as social protection, provision of and access to
goods and services, education, culture and sports, is limited to the grounds
of race or ethnic origin. ILGA-Europe has been advocating to extend this
proposed second directive to all grounds mentioned in Article 13 and
communicated this view to the responsible Commission services, e.g. the
General-Directorate Employment (formerly DG V). The seminar has endorsed
this demand. ILGA-Europe and its member organisations in the EU countries
will try to convince the Commission to alter its approach in order to avoid
the promotion of a hierarchy in the protection from discrimination on the
various grounds. The Commission will decide upon its proposals on 25 October
1999.

OSCE REVIEW CONFERENCE
Vienna, 20 September - 1 October 1999 in the Human Dimension  Working Group
Oral statement by Kurt Krickler

Thank you for giving me the opportunity to address this meeting on behalf of
the European Region of the International Lesbian and Gay Association (ILGA),
a federation of organisations fighting discrimination against homosexual
women and men, with members in almost all European countries.

ILGA has been participating as an NGO in the Human Dimension of the OSCE
since the Moscow meeting in 1991. Since 1993, we have been presenting oral
statements to the Human Dimension, reporting positive developments in
participating States with regards to the respect of the human rights of
lesbians and gay men but also reminding non-complying States to honour their
commitments entered not only under the OSCE process but also under the
International Covenant on Civil and Political Rights and the European Human
Rights Convention.

Since last year's Implementation Meeting in Warsaw, we can note that in some
countries progress has been made in this field, but we also realise that
others are still very reluctant to comply with the demands to stop sexual
orientation discrimination.

On the positive side, we can note that Bosnia and Herzegovina, Tajikistan,
and Georgia have repealed the total ban on homosexuality. Liechtenstein is
also voting on law reform these days but unfortunately, the Bill does not
provide for the complete elimination of all existing anti-homosexual
legislation in the criminal code. We can also note with satisfaction that
Switzerland included "lifestyle" as one ground of protection in its new
Constitution, thus banning all discrimination on the grounds of sexual
orientation.  We can also state on the positive side that Sweden and
Slovenia introduced anti-discrimination legislation prohibiting sexual
orientation discrimination at the workplace.

On the negative side, we have to note that a total ban on homosexuality
still exists in Armenia, Azerbaijan, Uzbekistan, and in more than 20 states
of the United States of America – despite the fact that in 1994, the United
Nations Human Rights Committee has ruled that such a total ban violates
Article 17 of the UN Covenant.

Again on the negative side, we have to note that discriminatory unequal age
of consent law provisions continue to exist in Albania, Austria, Bulgaria,
Croatia, Cyprus, Estonia, the Faroe Islands, Hungary, Liechtenstein,
Lithuania, Moldova, Portugal, Romania, Serbia, Ukraine and the United
Kingdom – despite the fact that, in 1997, the European Human Rights
Commission has ruled that such unequal age of consent for homosexual and
heterosexual constitutes a violation of the European Human Rights
Convention.

Again on the negative side, we have to report an increase of hate crimes
against lesbians and gay men, especially in the United States of America,
but also in some European countries.Two years ago, we brought to your
attention the fact that, in Sweden, 27 gay men and lesbians had been
murdered in hate crimes between 1987 and 1997. Last August, the gay pride
week in Stockholm was marked by brutal attacks of skinheads and neo-nazis
against gay men that left several heavily injured. In a survey among gay men
in Sweden this year, a third of all gay men declared to have been victim of
violent attacks. Although this serious problem has been persisting for a
couple of years now, Sweden has failed to date to introduce hate crime
legislation and to extend existing laws against racist violence to also
cover homophobic violence. A neglect that, for certain people, obviously is
perceived as an invitation and encouragement to continue their verbal and
physical violence against lesbians and gay men.

ILGA-Europe urges the OSCE to emphasise non-discrimination against lesbians
and gay men being part of the respect of human rights, and to monitor this
more closely with non-complying countries.

We also urge once more the delegations of the countries concerned to more
firmly report back to their governments and parliaments that they ignore
relevant decisions both of the UN Human Rights Committee and the European
Court of Human Rights and that they do not honour their OCSE commitments in
this field.

Last year in Warsaw, the distinguished delegate of the Council of Europe
mentioned the plans for broadening Article 14 of the European Human Rights
Convention to make it a real anti-discrimination article. On that occasion,
ILGA-Europe expressed its hopes that "sexual orientation" be explicitly
listed as a non-discrimination ground in the new Article 14. However, last
August, when the Committee of Ministers of the Council of Europe published
the proposed draft for a new Article 14, we had to realise that this draft
does not include sexual orientation. We, therefore, would like to use this
opportunity to appeal to the Council of Europe to reconsider this decision
and to explicitly list sexual orientation as a new ground in Article 14 of
the Convention.

We are also very disappointed that, due to the resistance of certain
countries, non-discrimination on the grounds of sexual orientation has not
been included in the document, the Charter, that is being prepared for the
Istanbul Summit. Regretting this, however, we would like to thank the Dutch
delegation for their efforts to have such a clause included. And we call
upon this meeting and all delegations to reconsider this decision and to
explicitly mention sexual orientation discrimination which should no longer
be ignored by any international human rights platform of real significance.

Steffen Jensen
E-mail: [email-masked]
http://www.steff.suite.dk
Fax: + 45 4049 5297

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