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Discurso do Presidente da Assembleia do Conselho de Europa na Conferência da ILGA Europa

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Speech by the President of the Parliamentary Assembly
of the Council of Europe, Mr Peter Schieder
at the ILGA Conference "Recognising Diversity, Promoting Equality"
(Lisbon, 25 October 2002)

When I was elected President of the Parliamentary Assembly of the Council of Europe nine months ago, I declared that the protection of lesbian and gay rights would be one of my priorities in office. There were two simple reasons for such a decision.

Firstly, while Europe as a whole has seen some improvement in the treatment of lesbians, gays, bisexuals and transgendered people in recent years, progress has been uneven and in some countries it is still practically non-existent. It is a sad truth that, even today in Europe, people continue to be discriminated against on the ground of their sexual orientation.

Secondly, in their struggle to defend and expand their rights, lesbians and gays have had to rely almost exclusively on themselves. There has been a persistent, and almost generalised, lack of commitment, to recognise and defend their rights as an integral part of human rights. I believe it is high time that Europe's lesbians and gays receive greater support from institutions mandated to protect equality and human rights at national and European level. I certainly intend to do my utmost to make sure that the Parliamentary Assembly and the Council of Europe as a whole meet their responsibilities in this regard.

This being said, one must not forget that rhetoric alone is not enough - it is long on the feel-good factor, but short on any practical effect. I came here to Lisbon with a simple and clear objective: to express my strong support for the protection of the rights of lesbians, gays, bisexuals and transgendered people, to inform you of the recent work of the Assembly and the Council in this regard, but also, and most importantly, to discuss with you concrete proposals for the future - who shall do what, and when.

The record of the Council of Europe in the past two decades is a mixed one. On one hand, it was the first international body to speak up and act to protect the rights of lesbians and gays. On the other hand, this progress - crucially important though it is - was built through a succession of small and timid steps, which did not always apply principles to the full, and which often sought to placate persistent homophobic attitudes within some member states.

In spite of this, the progress made has been considerable, and it should largely be attributed to the European Court of Human Rights and the Parliamentary Assembly.

The Court and, in the past, also the European Commission for Human Rights, handed down a series of ground-breaking judgments, recognising that discrimination on the basis of sexual orientation was a violation of fundamental rights, and gradually expanding this general principle to areas such as employment and child custody.

The decisions of the Court are of the greatest importance because they oblige changes in national legislation which is found to be incompatible with the European Convention on Human Rights.

In the Parliamentary Assembly we do not only aim to change laws, we also try to change attitudes. The Assembly brings together parliamentarians from different backgrounds and of different political persuasions. Their views reflect the predominant opinions within their part of the electorate, be they progressive or conservative, tolerant or marred with prejudice. In the debating chamber in Strasbourg they express themselves freely, but they do so against the background of the principles that our Organisation was set up to defend. This is our best chance to move things forward, but one should not expect miracles. It is always difficult to change people's views, and it takes time.

Yet the Assembly has made steady progress.

In 1981 it adopted its ground-breaking Recommendation 924 on discrimination against homosexuals, which condemned the continuous discrimination against and oppression of homosexuals and recommended that Council of Europe of governments take a number of concrete steps, including applying the same age of consent as for heterosexuals and ensuring equal treatment with regard to custody rights for children.

While from today's point of view the language and objectives of the recommendation may seem outdated and inadequate, its importance at the time should not be underestimated.

More recently, in year 2000, the Assembly adopted two texts - the first one on the general situation of lesbians and gays in the Council of Europe and the second one on their and their partners' situation in respect of asylum and immigration in our member states.

Both recommendations are openly critical of the insufficient legal protection given to gay and lesbian rights in many Council of Europe member states, and they clearly state a number of principles revealing the extent of the change in the Assembly's thinking since 1981.

To fully appreciate the importance of this change one must recall that in 1981 the Council of Europe had twenty-one member states, all from the western part of the continent. In the year 2000, it had twenty more. Our unequivocal condemnation of any form of discrimination, our calls for an equal age of consent, for the formal recognition of homosexual partnerships, for an explicit reference to sexual orientation as a ground for discrimination prohibited by the European Convention on Human Rights - these were messages which were sent to the Europe as a whole.

The educational role of the Assembly in this field may be oriented towards the long term, but it is important.

We are consistently expanding the boundaries of human rights and paving the way for further progress achieved through the decisions of the European Court of Human Rights and the actions of member states' governments.

In addition, the Assembly has imposed a number of legislative changes on countries acceding to the Council of Europe. Respect for these obligations is closely scrutinised through the Assembly's monitoring procedure. Romania is an example of the concrete and positive results of the Assembly's action.

On the other hand, I personally regret the fact that in our September debate on the accession of Yugoslavia, an amendment calling to repeal from the internal legislation all provisions discriminating against homosexuals, failed to obtain the necessary majority. However, the reason for the failed vote should not be attributed to homophobia - even if some comments made in the hemicycle were absolutely unacceptable - but rather to the lack of information.

I am certain that a proper and early briefing on the situation in the country could have helped to avoid this situation. The absence of a specific reference does not mean that we shall accept the presence of discriminatory provisions in the legislation in our 45th member state. This issue will be dealt with through Protocol 12 to the European Convention on Human Rights which the Belgrade authorities are obliged to sign upon accession and ratify within a year after.

Turning to the future, there are two major issues that have not yet been covered by Assembly texts: full legal recognition of same-sex couples by the state, including the right to marry, and the right to be considered for the adoption of children.

I personally see no reason why people of the same sex should not be allowed to marry. I also believe that what children awaiting adoption really need is love, care and protection from responsible adults.

In the world today, some are lucky to find new parents, many do not. They become victims of prejudice and hypocrisy paraded as concern.

This being said, I will not conceal from you that the Assembly remains divided on the issue of same-sex marriages and adoptions by lesbians and gays. The opponents of a more liberal approach to adoption would certainly bring up the Court decision in Fretté versus France of February this year. You will recall that the Court ruled that discrimination on the grounds of sexual orientation in the access to adoption of children by unmarried individuals did not violate Article 14, combined with Article 8. The former is a general clause on non-discrimination, the latter guarantees respect for private and family life.

It must be made absolutely clear that the Assembly is free to make recommendations which go beyond the Court's decisions, but holding an Assembly debate on this issue too quickly could bring about a vote which freezes the issue at the level of the lowest common denominator, hampering future efforts to change the status quo.

What I suggest is that we proceed steadily, by disseminating information and building support. ILGA should make a particular effort to be present in Strasbourg and use its consultative status with the Council of Europe to the full. Together with other structures representing lesbians, gays, bisexuals and transgendered people it should provide information and advice to rapporteurs and other members of the Assembly. I am ready to offer any assistance in facilitating such contacts and co-operation.

Finally, I believe we should pursue our efforts concerning Protocol No. 12 to the European Convention on Human Rights.

I strongly regret that, against the opinion of the Assembly, the Committee of Ministers did not include sexual orientation as a ground for discrimination prohibited by the protocol. I must also admit that I was disappointed with the governments' explanation of the decision. In my view, they have, once again, shunned their responsibilities by generating a cloud of ambiguous platitudes.

In the given circumstances we need to ensure that Protocol No. 12 enters into force as soon as possible. Our objective must be its full application in all Council of Europe member states. As of today, almost two years since the opening for signature, only two countries - Cyprus and Georgia - have ratified the protocol. Eight more ratifications are necessary before the protocol can enter into force. Fifteen Council of Europe member states - Albania, Andorra, Armenia, Azerbaijan, Bulgaria, Denmark, France, Lithuania, Malta, Norway, Poland, Spain, Sweden, Switzerland and the United Kingdom - have not yet even signed it!

The second task will be to ensure that the general prohibition of discrimination contained in Protocol No. 12 is applied to all forms of discrimination against gays and lesbians, be it a discriminatory age of consent, discrimination in employment, social rights, custody rights or others.

We have our work cut out. We cannot be satisfied with our governments' proclaimed support for general principles of human rights, equality, tolerance and justice.

We need to ensure they translate this support into explicit, specific, comprehensive and unequivocal commitments to protect the rights of lesbians, gays, bisexuals and transgendered people in Europe.

Concil of Europe:

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