Three ILGA representatives were accredited at this conference which would have been, in former OSCE nomenclature, a follow-up meeting dealing not only with human dimension issues but with all OSCE areas: Alexandra Duda, lglf Koln, Kurt Krickler, HOSI Wien, and Scott Long who is living in Budapest at the moment. Alexandra and I attended the first week of the meeting, I returned twice just for the day (on 1 and 11 November), Scott could only attend sporadically since he was very busy in his teaching job.
The first group was the "friendly" delegations which we expected to put forward a proposal for the concluding document referring to non-discrimination based on sexual orientation. The Netherlands had announced already in advance that they would try to launch such a proposal. Alexandra and I had talks with the delegations of the Netherlands, Norway, Sweden, Canada and the USA. They were all, like in the past, very supportive but not really optimistic about the possibilities of such a proposal being introduced and surviving the discussions. Even the Dutch delegate confined his willingness to table a proposal to the scenario that it would fit into another proposal dealing with similar issues. The problem with the CSCE process is that, on one hand, most human rights standards have already been established in previous documents and that there will hardly be new standard setting again. On the other hand, a proposal that would introduce new standards for lesbians and gays only, eg. a whole paragraph with an own heading, would make the issue too prominent in a document and, therefore, hardly be accepted by the delegations. The only realistic option, also in the opinion of the Dutch delegation, was to insert "our issue" into another proposal. Although there were at least two opportunities in the Budapest Document to do so (see later), "sexual orientation" or the "non-discrimination of lesbians and gay men" finally did not find the way into the document;
The second group of delegations we met were those ones that had opposed a proposal in Helsinki in 1992: the British, the French, and the Spanish. In general, the NG0 liaison persons showed understanding and expressed support, we also tried to make them a bad conscience and to appeal to their image: People were very surprised after Helsinki to hear that the U.K., France, and Spain had opposed the proposal while countries with a much lower record of respecting lesbian and gay rights, such as Russia or Romania, were not. It would make a bad impression again if these delegations would be opposed to a possible proposal again;
The third group of delegations we prioritized in our lobbying were those countries where homosexuality is still illegal:
Cyprus: We met a delegate who promised to inquire about the state of the arts of the law reform back home. He asked us to phone in a few weeks. When I did so on 1 November, I was informed that Alexander Modinos had meanwhile received his compensation from the State and that a draft bill has already been introduced in Parliament. The reform, which would bring the law in line with the ruling of the European Court of Human Rights, is expected to be voted upon in early 1995. The fact that the delegation had done its homework shows that NGOs in general and also ILGA in particular are taken more and more serious in the CSCE context;
Georgia: The delegate consoled us with the remark that there is war in Georgia and that the ruling powers have not even finished the work on the new Constitution; and the new penal code is only next on the agenda. He promised anyway to forward our concerns and demands to the appropriate bodies in Tbilissi. He also stressed that the law would not be enforced any more;
Macedonia: The delegate was very understanding and supportive and convinced that the total ban will be abolished as soon as a new penal code will be enacted. He promised to forward our documentation and demands to the relevant bodies in Skopje;
Romania: The responsible delegate was well informed and seemed very competent. She was well aware of all the foreign protests, the Council of Europe interventions and the different proposals concerning a reform of Article 200, she regretted that her impact on law reform is limited and that it will be up to the Parliament to decide upon a reform;
Moldova: Like the Romanian, also the delegate of Moldova seemed to belong to a new generation of young and highly committed diplomates. She made a very deep impression on us because she had already contacted the Foreign Ministry back home when ILGA's written presentation was distributed to all delegations. She had asked for confirmation that ILGA's information about the legal situation in her country was correct. When we met her she was already well briefed and informed; she promised to sent all ILGA documents to the relevant bodies in Chisinau. She also mentioned that the appropriate addressee of our concerns would be the head of the Parliamentary Commission for External Relations, Mr. Diacov. Being attache at Moldova's embassy in Vienna, she also offered to forward a letter and further documentation to Mr. Diacov via diplomatic courier. So we agreed to write such a letter and to send it to her in the embassy after the Budapest conference being over (HOSI Wien already did so - see copies enclosed).
Another example for ILGA's increasing recognition was the fact that the Romanian delegation mentioned "our issue" in a statement in Working Group III (Human Dimension Issues) on 25 October:
"Last but not least, is the issue regarding the freedom of sexual orientation in Romania, which will be regulated through an amended version of Article 200 of the Penal Code (the former version of the article, banning homosexual and lesbian relations, has been virtually suspended). Judging by the way debates on this subject are going on in Parliament, it is expected that consensual relations between adults of the same gender, carried out in private, will no longer be persecuted by future legislation."
This is the first time that a country criticized by ILGA considered it worth while to react on this issue!
By the way, there were not many delegations that took up this issue in their statements. As far as we know, only Sweden referred to it in a statement in Working Group III at the end of October:
"The principle of non-discrimination is the fundamental basis for the enjoyment of all human rights. Nonetheless, discrimination does exist against a number of groups in our society.
Still much remains to be done to eliminate all forms of discrimination and violence against women in order to ensure equality. Mention could in this context also be made of discrimination against conscientious objectors as well as homosexuals."
And there was, of course, the joint statement of the Netherlands and Norway on Tolerance and Homosexuality delivered by delegate Wouter Plomp (NL) in Working Group III on 1 November. It was the first statement of any delegation in the CSCE process ever that was solely dedicated to the issue of homosexuality (copy of the full text is attached).
The Romanian delegate asked for the floor to react on this statement in which Mr. Plomp referred to a decision of the Romanian Chamber of Deputies on 25 or 26 October. The Chamber had voted against reform proposal of the Senate and for keeping article 200 unchanged. The representative of Romania regretted this decision but stressed that a mediation committee of the Senate and the Chamber would now discuss the final version of the amendments to Article 200. (Meanwhile, international news agencies reported that the Parliament, after criticism by the Council of Europe, revised the decision on this very 1 November again: Homosexual acts will only be an offence when committed in public and causing public scandal. Does anybody have reliable information about the final outcome of this never-ending history of reform?).
The US delegate took the floor to explain, referring to the remark of Mr. Plomp that 20 states of the USA still have sodomy laws, that the Federal government has no power to make these states change their laws.
The occasion for ILGA to speak was agenda item IV dealing with "tolerance and non-discrimination"; relevant sessions were scheduled for 28 October and 1 November. But ILGA, due to some emergency case, gave an unplanned statement even before:
I faxed this information to Scott and asked him to make a statement on this harassment in one of the WG III sessions dealing with freedom of expression and freedom of association and peaceful assembly. Scott delivered this statement (copy enclosed) on 18 October, only three and a half days after the harassment had occurred. This was really efficient work which clearly had some impact on the Albanian authorities. Scott also distributed a news release to all delegations (copy enclosed) and informed IGLHRC, ILGA's action secretariat, which made press releases. Volker Beck, openly gay German member of Bundestag, took up the case and called upon the German minister of Foreign Affairs, Mr. Kinkel, to take necessary diplomatic steps towards Albania to stop such harassments. This was reported by Deutsche Welle, and from there the news found its way into the Albanian press (see enclosed copy of an article in Koha Jone, dated 23 October). Amnesty international made the case to an urgent action (copy enclosed).
Immediately after the incident, the group was extremely scared and everybody in the group wanted to leave the country. The police accused them of having "foreign contacts" and of defaming Albania abroad. The leader of the group, Sen, had asked for an invitation to come to Austria. He was called in by the police because one of the arrested persons had given his name under pressure. He bribed the police with 200 US dollars and Was released! Later, he was called in again by the police but sent away after 18 hours of waiting without being interrogated. Maybe it was only an attempt to get more money out of him.
The international protest obviously made a strong impact. The police clearly backed of f after the intervention in Budapest and Volker Beck's action. Recent rumours even say that article 114 of the Draft Penal Code will be eliminated in the Parliament during the debate of the draft in December. Thus, the total ban on homosexuality would be completely repealed!
It is not clear whether the members of the group will be charged and put on trial but this seems to be unlikely. In any case, they calmed down and are not that scared any more.
On 1 November 1994, I returned to Budapest and gave the prepared ILGA statement (copy enclosed). It was the fourth intervention that afternoon that dealt with lesbian and gay rights (see above) I talked again to Dutch and Norwegian delegates but at that time, no proposals for the document had yet been submitted.
On 11 November, I went to Budapest for the day and attended the NGO Forum that morning. I talked again with the Dutch representative but there was no news. I also met the NGO liaison person of the Albanian delegation. He seemed a little embarrassed. We talked about the Tirana incident, he promised to report back to his office in Tirana about our protests. A few days earlier, the Albanian population had voted against the new Constitution in a referendum. He assumed that this would delay the debating of the new draft penal code and therefore he could not comment on the law reform. It was not a very inspiring conversation.
At the end of November 1 phoned Mr. Hazewinkel, the Dutch delegate, several times but there was no proposal put forward yet where "our issue" could fit in. In the very last days of the conference, it was impossible to get hold of Mr. Hazewinkel. Maybe Hans Vonk and Hein Verkerk can find out whether the Dutch delegation put forward a Proposal, and if so, why it failed to be included in the Document (which ones were the "bad and nasty" delegations!?).
The other opportunity would have been the sub-chapter on "Tolerance and non-discrimination" in Chapter VIII of the Budapest Document, dealing with the Human Dimension. Item 25 reads now as follows: The participating States condemn manifestations of intolerance, and especially of aggressive nationalism, racism, chauvinism, xenophobia and anti-semitism.
Budapest was the first and last Review Conference. Realistically, it was also the last chance for new standard setting and for explicitly including "sexual orientation" as a non-discrimination category. The next OSCE Summit will take place in Lisbon in 1996 and will be preceded by a preparatory meeting only. The Summit will decide on the frequency of future Summit meetings.
The Ministerial Council (formerly the CSCE Council) as the central decision-making and governing body of the OSCE will meet, as a rule, towards the end of every term of chairmanship at the level of Foreign Ministers.
The senior Council (replacing the Committee of Senior Officials) will meet in Prague twice a year. States are encouraged to be represented at the level of political directors or at a corresponding level.
The Permanent Council (formerly the Permanent Committee) will be the regular body for political consultation and decision-making. It can also be convened for emergency purposes. It will meet in Vienna and be composed of the permanent representatives of the participating States.
The ODIHR (Office for Democratic Institutions and Human Rights) will be strengthened.
The current mode of review of implementation of all CSCE commitments will be maintained. The review meeting before each Summit will be held in Vienna.
The Human Dimension: Concerning the participation of non-governmental organizations (NGOs), the Budapest Document states that this was a welcome addition to the implementation review. In their statements, these organizations contributed ideas and raised issues of concern for participating States. The experience or the Budapest Review Conference invites further consideration with regard to promoting within the CSCE the dialogue between governments and NG0s Of the participating States, in addition to state-to-State dialogue.
The participating states and CSCE institutions will provide opportunities for increased involvement of NG0s in CSCE activities as foreseen in chapter IV of the Helsinki Document 1992. They will search for ways in which the CSCE can best make use of the work and information provided by NGOs. The secretary General is requested to make a study on how participation of NG0s can be further enhanced.
In my interpretation, this means that ILGA's participation, in the future, will be limited to the Human Dimension activities since no provision is to be found that NGOs will have access to the meetings of the Permanent, Senior or Ministerial Councils.
The number of large-scale human dimension seminars will as a rule be reduced to two per year. There will be more emphasis on regional seminars. The Permanent Council will establish an annual work programme including the titles, dates and venues of such seminars, taking into account the advice of the ODIHR.
Romania has already offered to host an international Seminar on Tolerance in Bucharest under the auspices of the ODIHR and the Council of Europe in co-operation with UNESCO, in the context of the 1995 International Year of Tolerance.
(The full text Of the Budapest Document is available at the Foreign Ministries of participating States or from HOSI Wien)
Tolerance and homosexuality
Mr Chairman, On behalf of The Netherlands and Norway I would like to make the following brief statement. It is under the heading of Tolerance and Non-discrimination that I would like to address an issue which is dear to our heart and has so far not been mentioned by any Participating State in this Working Group.
I am referring to the situation of homosexuals. In some countries penal codes have been amended so as to reduce or abandon legal discrimination of homosexuals, and we were pleased to hear the expectation of the Romanian delegate on 23 October in this Working Group that the Penal Code In Romania will be amended in this way. Unfortunately we received information that alter that date the Romanian House of Representatives turned down the amendments of the Senate as regards art 200 of the Romanian Penal Code. We appreciate the efforts of those in Romania who tried to amend this article in a more non-discriminatory way and we still express the hope that Parliament in Romania will find a way to change its Penal Code regarding homosexuality. On the other hand there are many more countries, including more than 20 states of the United States, which still provide for a total ban on homosexual relations, as was presented to this meeting by the representative of the International Lesbian and Gay Association.
Legal discrimination against homosexuals is a serious issue in itself, but becomes even more important when one considers the fact that governments ought to set an example for their citizens. Discriminatory legislation towards homosexuals can easily give the population at large the impression that they are right in their prejudices and it is in this way that governments indirectly condone or even incite to harassment of homosexuals. It is the conviction of the delegation of the Netherlands and Norway that both the legal discrimination and the indirect condoning of harassment of homosexuals is an important issue which should not he neglected by the CSCE.
The statement of Scott Long
Thank you for the opportunity to speak today. My name is Scott Long, and I represent the International Lesbian and Cay Association (ILGA), a worldwide umbrella organization of some 400 nongovernmental organizations fighting discrimination against homosexual women and men.
Last Friday night, October 14, In Tirana, Albania, police rounded up three men who were members of Albania's first gay and lesbian organization, Shoqata Gay Albania. They were accused of belonging to an illegal organization. Police beat them for several hours, demanding the names of the president and other members of the group.
I am informed by a source in Albania that one cf the victims is still under arrest and apparently undergoing further interrogation. Another is reportedly in hospital, unconscious and with a leg broken. A third is at his home, under treatment for injuries sustained during the police beatings.
Consensual homosexual acts between adult men remain Illegal in Albania. Hence Shoqata Gay Albania has not been able to register legally, and its members are part of a so-called "illegal organization" subject to police persecution.
This shocking and outrageous incident illustrates my message today more powerfully than any words I might muster:
The rights or gays, lesbians, and bisexuals to associate; to assemble; to express themselves; and to discover and articulate a collective identity, are fragile ones. They are continually under threat - even in democratic countries, among them member countries of the OSCE. They are rights which must be explicitly guaranteed.
Often the rights of gays arid lesbians are discussed as though they could be confined to the enjoyment of an undisturbed existence in the private sphere. The right to privacy is essential to gays' and lesbians' lives - as it is to everyone. But the rights to speak out and to be together are no less significant for us than they are for other citizens.
These rights are the ones most often endangered and most easily denied - for it is when an unpopular people becomes vocal and visible that it becomes most vulnerable. These rights in particular require clear and unequivocal protection.
Let me offer a few more examples of how gays' and lesbians' access to the public sphere is abridged or denied.
In Romania this past July, an attempt to hold a lesbian and gay cultural festival, featuring performers from several Scandinavian countries, was closed on orders of the district mayor in Bucharest. Armed police with dogs surrounded the performance venue and prevented the event from taking place.
In a related development, the Romanian government has proposed a modification or the law criminalizing adult, consensual homosexual acts. This proposal would penalize homosexual acts "which cause public scandal." This deliberately vague and elastic language could be used to prohibit virtually any homosexual gathering, or any public expression of gay or lesbian identity - ensuring that abuses such as the above would continue unchecked.
In Turkey, the first Congress of Homosexual Solidarity was to be held in Istanbul in July 1993. The Governor of Istanbul banned the event at the last moment, citing an offense to "traditions and moral values" of Turkish society. When delegates attempted to hold a press conference to protest, 28 foreign and three Turkish delegates were detained. The former were deported from Turkey, alter police attempted unsuccessfully to force them to submit to HlV testing.
In many countries, gay and lesbian organizations are denied the right to register themselves officially. In the absence of specific and explicit protection fix the right of gays and lesbians to associate and assemble, vague registration requirements can readily be used against their organisations. Attempts aver a period of one year to register a gay and lesbian group in Romania met with failure, as group leaders were sent by a court on a quixotic quest for the unobtainable approval of government ministries. In Hungary and in Lithuania, groups have been denied legal status on the transparent pretext that the word "gay" was not a legitimate, indigenous expression. In Moscow, gay and lesbian organizations have been denied registration on the basis of a 1990 Soviet law which provides that "the creation and action of civil unions that aim to harm the health and morals of the population ... shall be punishable by law."
The penal codes of Austria and Liechtenstein explicitly forbid the founding of homosexual organisations. Those penal codes, plus that of Finland, prohibit the dissemination of positive information on homosexuality. In Austria this has also led to the confiscation or AIDS-prevention material for gay men, thus contributing to the further spread of this pandemic.
These are all threats to the public rights, and hence the collective existence, of lesbians and gay men.
Being lesbian or gay is necessarily both public and private business. We have built a unique identity, one bridging a gulf between two parts or human experience. Lesbian and gay life requires legal protection of the private sphere in which we live and love. Yet we must also have equal access to public space, so we may come out, define ourselves, gather and be heard: We need the right to be listened to, as well as the right to be left alone.
These are not special rights. They are rights for everyone, that transform mute existences into fully human lives. Indeed, they are rights that make - or by their absence, break - democratic societies.
in the last five years, we have seen, in country after country, what the transition from totalitarianism to democracy entails. It means creating privacy, where citizens once laced constant surveillance. It means creating public lie, where politics meant mouthing slogans and marching in choreographed parades.
Gays and lesbians live by the integrity of these spheres; we stand as a living litmus test of whether democracy succeeds. The recent histories of emerging democracies where gay movements have begun shows how defining gays' and lesbians' rights can be crucial to creating civil society.
We speak then, on behalf not just of a particular minority group but of a general and common interest; the call we make Is for an open, accessible, and equal public sphere ILGA urges this Review Conference to commit itself to a policy of non-discrimination based on sexual orientation. Only an explicit commitment to equal protection for homosexual women and men can ensure that their rights to freedom of expression, association, and assembly are not denied. Only such a commitment can guarantee that gays and lesbians are not silently silenced, that their fledgling solidarity is not stifled or dispersed.
The statement of Kurt Krickler
1 November 1994 in Working Group 3:
Discrimination on the basis of sexual orientation is a violation of human rights. I thank you for giving me the opportunity to address this meeting. I represent the International Lesbian and Gay Association (ILGA), a world wide umbrella organisation of some 400 non-governmental organisations righting discrimination against homosexual women and men.
Our organisation has been participating in CSCE meetings which deal with human rights for three years now. We have spoken with most delegations, presenting our demands for inclusion of non-discrimination based on sexual orientation as a CSCE commitment in a binding document. At the Third Meeting of the Conference on the Human Dimension in Moscow in 1991, the delegations were confronted with our demands for the first time, but no delegation put forward a proposal in the deliberations. At the 1992 Follow-Up Meeting in Helsinki, the Norwegian delegation introduced such a proposal, but it was met with reservation. ILGA representatives also participated in the Human Dimension Seminar on Tolerance in Warsaw in 1992 and at the First Implementation Meeting on Human Dimension Issues in the Polish capital in Fall 1993. On both occasions, we had the opportunity to present oral statements in the plenary.
The Report of the 1993 Implementation Meeting, for the first time in the history of the Helsinki process, made reference to the issue of non-discrimination based on sexual orientation which is a real milestone. I quote:
"Participants pointed to groups which were not "national minorities" but which none the less suffered discrimination, including women, homosexuals, migrant workers, and conscientious objectors...
It was pointed out that CSCE commitments in the area of non-discrimination cover homosexuals as well. suggestions were made that discriminatory State policies against homosexuals, and criminalizing legislation, should be eliminated."
This Report, however, is not a binding document. Thus, we are here again to continue to convince you, the delegations of the 53 participating states, that it is necessary to also protect your gay and lesbian citizens from discrimination based on their sexual orientation and to include, accordingly, a clause in the Budapest Document because we feel that, if not explicitly mentioned, this commitment might not be taken serious by some participating states.
It would be disappointing if the CSCE continues to be the only major European and international human rights platform that does not speak out against discrimination based on sexual orientation and does not phrase any protection from human rights violations against lesbians and gay men in its basic documents.
Lately, we have witnessed remarkable progress and important achievements in the recognition of the human rights of homosexual women and men at the international level:
In March 1994 the United Nations Human Rights Committee ruled that the rights of lesbians and gay men to privacy and equality were guaranteed by the provisions of the international covenant on civil and Political Rights. The Committee noted that the reference to "sex" in articles 2 and 26 of the covenant is to be taken as including sexual orientation. For us in the lesbian and gay rights movement, this is the most important decision to date in the international human rights law.
Another recent landmark achievement was the adoption of the Resolution on equal rights for homosexuals and lesbians in the EC by the European parliament in February 1994. In this Resolution, the EP calls on the Member States to repeal all anti-homosexual legal provisions and to end any discrimination on the basis of sexual orientation.
On the first summit meeting of the Heads of State and Government of the member states of the Council of Europe, which took place in Vienna in October 1993, a Declaration and Plan of Action on combating racism, xenophobia, antisemitism and intolerance which, in our view, also includes lesbians and gay men, was adopted.
We would like to stress again how disappointing it would be if the CSCE remained behind the human rights standards already set forth by the United Nations and the Council of Europe. Details of these recent achievements, you will find in the Written Presentation of our organisation which has been distributed to all delegations.
In practice, this means that those OSCE participating States which still have provisions in their laws discriminating against lesbians and gay men should repeal these laws:
To our knowledge, the penal codes of Albania, Armenia, Azerbaijan, Belarus, Bosnia and Herzegovina, Georgia, Kyrgyzstan, Moldova, Tajikistan, Turkmenistan, Uzbekistan and, as was mentioned before, of more than 20 States of the USA still provide for a total ban on homosexual relations.
Discriminatory ages of consent still exist in the penal codes of Austria, Bulgaria, Finland, Hungary, Liechtenstein and the United Kingdom.
The penal codes of Austria, Finland and Liechtenstein prohibit positive information on homosexuality, thus violating the fundamental freedom of thought and expression. In Austria this law has also led to the confiscation of AIDS prevention material for gay men, thus contributing to the further spread of this pandemic.
I am not going to repeat the concrete examples of human rights violations which my colleague presented to you in this working Group two weeks ago speaking to agenda items II b and c.
In concluding, we repeat our demand to this Review Conference to lay down in a clause of the Budapest Document the commitment to non-discrimination based on sexual orientation and the protection of the human rights of homosexual women and men.
The joint statement of Norway and the Netherlands which was just given by the distinguished Dutch delegate, and for which I would like to especially thank him, gives us hope that this may finally happen.