An update of the Survey on the Legal Situation for Gays and Lesbians in Europe and guides to the structure of the European Union, the Council of Europe and The Organization for Security and Cooperation in Europe can be found on the home page of the Gay and Lesbian International Lobby.
EUROPEAN PARLIAMENT FOR GAY AND LESBIAN RIGHTS
By EgaliteThe EP voted February 20th by a clear majority of 114 to adopt a series of amendments to draft EU legislation which, if adopted by the Council of the European Union, would guarantee equal treatment to gays and lesbians who are employed by the EU's institutions.
On the basis of a report written by Swedish Green MEP Malou Lindholm, the Parliament decided to ask the Commission and the Council to change the Staff Regulations (the terms and conditions of employees of the EU) to include a general non-discrimination clause and, in particular, to allow non-married cohabiting couples - including same sex couples - to register their partnerships with the EU and receive treatment similar to that extended to married couples.
The measures are just one part of a wider package designed to eliminate discrimination in the EU institutions against women, members of ethnic minorities and lesbians and gays on their staff. Under the package, the institutions would be required to monitor more closely the status of women and ethnic minorities and to take positive actions to ensure that the EU's institutions become more representative of the population as a whole. In addition, they will be required to extend "marital" benefits to staff who have registered partnerships in their own country (e.g. Sweden and Denmark) and allow other staff to register their partnerships with their employer.
This step was welcomed by Marion Oprel and Roy Dickinson Co-Presidents of EGALITE, the 350 strong group of lesbians and gays working in the EU institutions. "The European Parliament has shown that it is determined to take account of the realities of modern society and to adopt modern employment rules in line with many private and public sector employers elsewhere."
But the package really is just a first step in two ways. At this stage it only affects employees of the EU institutions, such as the European Commission and the European Parliament. Similar legislation at the European level which would cover all workers in the Union is still some way away.
And even these measures still have several hurdles to overcome before they become law. First they must be adopted by the European Commission. Although the Brussels executive - like the EP - already registers its employees' non-married partnerships for more or less symbolic reasons, it seems unwilling to consider extending any real benefits to these people in line with the Parliament's demands. The Commissioner responsible, the Finn Erkki Liikanen, concedes that gays and lesbians have a right to be free from discrimination, but thinks that it is the job of the Council to translate this into concrete measures.
The Catch-22 here is that the Council needs a proposal from Mr Liikanen
before it can act. "Convincing the Commissioner to have the courage of
his stated convictions may not be easy," said Marion Oprel. "The
Commissioners and ministers cannot simply ignore the unequivocal support
for lesbian and gay rights given by the EU's one democratically elected
body. We have every expectation that the Dutch Presidency of the
Council will want to resolve this rapidly, in line with the Netherlands`
own draft legislation on partnership rights and the proposed ban on
discrimination which is to be included in the revised Maastricht
Treaty."
The Dutch Presidency has deleted the non-discrimination clause as far as
age, disabilities and sexual orientation are concerned. This has been
revealed by Nel van Dijk, MEP for the dutch GroenLinks party, on her web site.
In the Irish proposal the text for a new article in the treaty read :
"Within the scope of application of this Treaty and without
prejudice to any special provisions contained therein, the
Council, acting unanimously on a proposal from the Commission
and after consulting the European Parliament, may take
appropriate action to prohibit discrimination based on sex,
racial, ethnic or social origin, religious belief, disability,
age, or sexual orientation."
Without prejudice to the other provisions of this Treaty and within the
limits of the powers conferred by it upon the Community, the Council,
acting unanimously on a proposal from the Commission and after
consulting the European Parliament, may take appropriate action to
combat discrimination based on sex, racial or ethnic [word deleted]
origin or religious belief [words deleted].
DUTCH EU PRESIDENCY HAS ABOLISH NON-DISCRIMINATION BASED ON
SEXUAL ORIENTATION
By Hein Verkerk
Non discrimination
Comments
New Article 6a in the TEC
In the Dutch revision it reads now:
New Article 6a in the TEC
Comment of the Dutch presidency:
The Dutch want to finalize a last draft for the end of this month. So
URGENT action is NOW needed. The actions should target at least the Dutch
presidency.
- Ministry of Foreign Affairs
- Minister: H.A.F.M.O. van Mierlo
- State Secretary: M. Patijn
- Mail Address: P.O. Box 20061 2500 EB Den Haag
- Main switchboard: +31 70 348 6486
- Chief press officer: B.H. Hiensch
- Europe Press Officer: F.F.M. Kemperman, Telephone: +31 70 348 6331
- State Secretary: M. Patijn
- The State Secretary responsible for gay and lesbian emancipation is:
- State Secretary: Erika.G. Terpstra
- Main switchboard: +31 70 340 7911
- Chief press officer: I.E. van Geest-Jacobs
- Europe Press Officer: B. Bruggink Telephone: 31 70 340 6001, Europa informatie
- Main switchboard: +31 70 340 7911
Before it was known that the Dutch presidency had dropped age, disabilities and sexual orientation the COC send a letter to their government.
Here is it's text translated into English, you might adapt it and use it as a basis for your actions:
February 25, 1997
To the Minister of Foreign Affairs of the Netherlands
Mr. H.A.F.M.O. van Mierlo
P.O Box 20061
2500 EB Den Hag
regards: revision of the Treaty of the European Union.
Dear Mr. Van Mierlo,The board of the Dutch Association for Integration of Homosexuality COC, is closely following the developments in the Intergovernmental Conference for the revision of the Treaty of the European Union, that will be finalized under your Presidency.
We are aware of the big problems that play a role in the revision , but we do want to ask your attention for an aspect that has caught our special interest: the insertion of a non-discrimination paragraph, explicitly forbidding any discrimination based on sexual orientation.
We write you because we are very alarmed as we heard several statements by Dutch officials and have to conclude that the Dutch government is not really prepared to take a firm stand for the inclusion of sexual orientation as a category of discrimination that deserves counter measures from the European Union.
There is a need for a legal basis in the European Treaties to counter act discrimination and to enable the development of policies in this area.
The European Parliament already pointed this out in February 1994, in its resolution based on the Roth Report on discrimination of lesbian women and gay men.
The European Commission over the last years repeatedly mentioned this lack of legal basis. Requests from the European Parliament or from European society with regards to a policy in the area of gay men and lesbian women, had to be refused by the Commission under reference to the lacking legal basis for such policies .(1)
Firstly, a legal basis is needed to strip of existing European Law and regulations from implicitly discriminatory provisions with regards to same sex partners. In referring to "legal spouses" e.g. in transferring quota under the Common Agricultural Policy, same sex partners that have a relationship are indirectly discriminated against. Also in the free movement of persons, in secondary labour conditions and on the European labour market, same sex partnerships over and over cause trouble. As far as the staff of the European Institutions are concerned, the European Commission in the mean time has submitted proposals, that want to stop this.(2)
This need for a legal basis increases, as in several member states on a national, regional and/or local level legislative and regulatory measures are taken, e.g. which allow for greater rights for same sex relationships than there are now. The removal of borders within the Union requires a removal of discrimination based on sexual orientation, namely with regards to employees and self employed people. Such legislation in many cases is a follow up of the lifting of the penalization of homosexual acts. For the rest, we think that penal codes should stay submitted to the principles of subsidiarity. We also think that the envisaged non-discrimination provisions should not replace or supersede arrangements in the international civil law system, which directly or indirectly relate to partnership legislation.
In the preparatory process that preceded the IGC, repeatedly and from various sides, the need was pointed out for a strengthening of the fundamental rights of the European Citizens. There also was made reference to the position of gay men and lesbian women in the European Union.
This was done by the so-called Groupe de Réflexion, presenting its report to the European Council in Madrid, December 5th, 1995.
The European Parliament in its preparatory process in two documents (in 1995 and 1996) with great majorities pressed the point of the inclusion of a non-discrimination clause, explicitly forbidding discrimination based on sexual orientation.(3)
As from the beginning of the negotiations in the framework of the IGC, this resulted in proposals to include a provision in the new treaty. The Italian Presidency at the Florence Council concluded that such a clause should comprise more than just the aspects of race and gender. The Irish Presidency submitted to the Council of Dublin proposals on this aspect, which next to race and gender also added, ethnic and social origin, religious beliefs, disabilities, age and sexual orientation.
Being an interest group of gay men and lesbian women in the Netherlands, we consider this a positive development, an opinion we share with the International Lesbian and Gay Association (ILGA) European Region and our fellow organizations in almost all 15 member states.
In the preparatory process leading up to the IGC, ILGA, on a hearing by the European Parliament with emphasis pleaded for the inclusion of such a clause. The Irish gay and lesbian organization, GLEN in July 1996 insisted with the Irish Presidency to include such a clause in its proposals. And it did.
Over years the defense of gay and lesbian rights have been an integral part of Dutch national and foreign policies. The entire European gay and lesbian movement is right to have great expectations of the Dutch government, which has a great reputation with regards to the defense of gay and lesbian rights in the entire world . So it is disappointing that the State Secretary for European Affairs, Michiel Patijn, in November in the First Chamber of Dutch Parliament rejected the inclusion of a non-discrimination clause and that the Minister for Social Affairs and Emancipation Mr Ad Melkert took a reluctant position in the Second Chamber. As the IGC process progresses, it turns out that there is broad support in Europe for inclusion in the Treaty. Austria and Italy, during the Irish presidency submitted proposals that supersede the Irish wording. The European Parliament in its reaction to the Irish proposals indicated that it "welcomes the insertion of the clause on non-discrimination, but considers that it should be directly applicable and that the role of the European Parliament must be strengthened by means of the co-decision procedure in what is an important area of citizens' rights; (4).
We ask you to bring about an active dedication of the Dutch government to include a non-discrimination article in the Treaty of Amsterdam, having direct a direct effect and enabling co-decision of the European Parliament.
Footnotes:
(1) Recently in reply to written questions of a Dutch and Danish MEP, E-22424/96 NL Flynn to van Dijk, October 3 1996 and E 2040/96 Official Journal C385/86 dated 19.12.96 Liikanen to Jensen
(2) see also the Modified Proposal for a regulation (Euratom, ECCS, EC) from the Council to change the Statute of the civil servants of the European Communities etc. with regards to the equal treatment of men and women (COM(96)77 def March 6, 1996
(3) Resolutions based on the Reports of Martin-Bourlanges and Dury- Maij Weggen dated May 17th, March,13th 1996( A4-0068/96) (4) Resolution of the European Parliament dated January 16th nr.B-0040/97
FINNISH PARTNERSHIP LEGISTLATION PROCEEDS WITH LITTLE STEPS
By Hannele LehtikuusiThe Committee of Law decided on February 27, that they will take under consideration the Bill on Recognized partnership. Decision was made after hearing Mr Helin from Ministry of Justice. Mr Helin is responsible of the report prepared by the Ministry last October dealing with the legal effects of partnership legistlation. Report was requested by the Committee of Law in mid June 1996 and was made public in early October 1996.
Today, February 28, the Commitee of law decided to request reports and opinions from the juridical side (University), on the relious side (Lutheran Church) and also from the people that it concerns (SETA, the Finnish National Organization for Sexual Equality). After hearing these comments the Committee of Law will decide on further proceedings.
There should be more news to tell in April when the Commitee of Law has
received the reports and heart the three commentators. More details
from me.
France's Socialist Party introduced a domestic-partnership bill in the
National Assembly Feb. 3.
The measure creates "social-union contracts" to "provide a legal
dimension for the union of those women and men who, though unmarried,
still jointly plan on having a true, lasting life together," supporters
said.
In a communique to the media, the Socialists declared: "Totally
preserving the role and the institution of marriage, it takes away no
right whatsoever and does not amend rules pertaining to the status of
children but it does open up new room for freedom in accordance with the
Republic's principles."
Three British gays who were imprisoned for engaging in consensual
sadomasochistic sex in their own homes lost their appeal to the European
Court of Human Rights Feb. 19.
Ruling in the infamous "Operation Spanner" case, the court said: "The
state was unquestionably entitled to regulate the infliction of physical
harm through the criminal law. The determination of the tolerable level
of harm where the victim consented was primarily a matter for the
state's authorities."
The history of the case is as follows: In 1987, Manchester, England,
police found video tapes of private consensual SM scenes. To avoid
prosecution, the owner of the tapes gave the police names of some men
into SM. By seizing address books and through alleged intimidation, the
police enlarged their investigation, questioning more than 200 men over
a period of two years at a cost of $6 million. Every witness reportedly
said that nothing occurred against anyone's wishes, that everyone was an
adult over the age of consent, and that no one was hurt. Nonetheless,
42 men were arrested.
Eventually 16 men where charged with assault (tops), aiding and abetting
an assault (bottoms), keeping a disorderly house (hosting the
activities) and publishing obscene articles (making tapes) -- and
British courts declared it illegal to harm another person's body even
when the person requests the harm for purposes of sexual
gratification. (The video tapes showed such acts as penis torture,
rubbing testicles with sandpaper and genital flagellation.)
Eight of the men were sentenced to up to four and one-half years in
prison. Some of the sentences were reduced on appeal.
Spanish gay leaders are requesting lobbying from abroad in their push
for a national gay partnership law.
Draft legislation has received support from all parties in the lower
house, the Congress of Deputies, except the ruling Partido Popular,
which has yet to state its position.
"A change of attitude can be expected if an adequate degree of pressure
is exerted," gay groups said in a press release. "Given the distribution
of seats at the Parliament, the vote of the Partido Popular on this
issue is crucial. Their voting 'no' would mean the bill would be
dismissed."
The party can be lobbied via D. Luis de Grandes Pascual, Grupo
Parlamentario Popular, Congreso de los Diputados, Plaza de las Cortes,
28014 Madrid, Spain. Fax: 011-34-1-420-2516.
Here are the current Portuguese Penal Code articles, (with an English
translation), for your records and possible mention in the next
Euro-letter. Goncalo Diniz has kindly corrected my original draft, so I
conclude that the remaining uncertainties (eg: what exactly does 'act of
sexual relevance' mean?) are in the original. Note that the 'age of
criminal responsibility' in Portugal is sixteen years.
Whoever performs vaginal intercourse or anal intercourse under
the circumstances specified in the previous paragraph shall be
punished by imprisonment for between two and ten years.
Whoever performs vaginal or anal intercourse with a child under
14 years old shall be punished by imprisonment for between three
and ten years.
Whoever
Whoever commits or induces any person to commit any of the
offences specified in the previous paragraph for lucrative
purposes shall be punished by imprisonment for not more than
three years.
In the case that violence, serious threats, deceit or fraud is
used for that purpose, or it is undertaken as a profession or
for lucrative purposes, or takes advantage of any mental
incapacity of the victim, or the victim is under 14 years old,
the punishment shall be imprisonment for between 2 and 10 years.
The Danish Ministry of Foreign Affairs has got an official
translation from the Romanian Ministry of Justice of article
200 of the penal code (it is quoted exactly as written by the
Romanian authorities and I am aware of some linguistic and other
mistakes):
The adult who is having sexual relations with a minor of the
same sex shall be punished with imprisonment from 2 to 7 years
and interdiction of certain rights.
Sexual relations with a person of the same sex who is not able
to defend itself or to express its will or if they are
undertaken by means of compulsion are punished with imprisonment
from 3 to 10 years and interdiction of certain rights.
If the act provided in paragraphs 2 and 3 is causing great harm
to psysical integrity or health, the punishment shall be
imprisonment from 5 to 15 years and interdiction of certain
rights and if is causing the deth or suicide of the victim, the
punishment shall be imprisonment from 15 to 25 years and
interdiction of certain rights.
Entincing or seducing of a person in order to determin sexual
relations between persons of the same sex, as well as propaganda
or associating or any other acts of proselytism comitted with
the same purpose are punished with imprisonment from one to 5
years."
The IGC is preparing the revision of the Treaty on the European Union,
to be concludes at the Amsterdam Euro Summit coming June.
The utterly confidential documents are the so-called non-papers,
containing the Dutch Presidency's proposals for the revision of the
Maastricht treaty. Two documents are published to start with, one on
flexibility in the European Union and another on the extension of
qualified majority voting in the council of ministers. In the coming
days other documents will appear on Nel van Dijk's Internet site.
Nel van Dijk: " Some days ago the media reported that the Dutch
presidency had been criticized by other governments for going beyond the
limits of openness. On a Internet server of a European research and
developments program, CORDIS, the Dutch presidency in a special corner had
published the minutes of a European working party on R & D. Well even
that was too much for some. I cannot trace anymore the document that
caused the uproar. Furtively deleted ?
The documents that I publish concern the future of Europe and should be
public. Secrecy in Europe, namely on Council level is that strict that
the documents even are not entitled to a name, so they call them
non-papers.
I think interested citizens are entitled to know where we are
heading. And what I read in the documents, is not exactly predicting
much for democracy, however if they are accessible anyone can get to
know them unfiltered and make up his /her minds.?"
FRENCH PARTNERSHIP BILL INTRODUCED
By Rex WocknerSM GAYS LOSE EURO APPEAL IN SPANNER CASE
By Rex WocknerSPANISH GAYS SEEK HELP WITH PARTNERSHIP BILL
By Rex WocknerPORTUGUESE PENAL CODE
By Alan ReekieArt. 163
Whoever coerces another person to perform or submit to an act of
sexual relevance, either with himself or with somebody else, by
means of or after violence, serious threats, taking advantage of
a state of unconsciousness or inability to resist, shall be
punished by imprisonment for between one and eight years.Art. 165
Whoever peforms an act of sexual relevance with a person who is
unconscious or unable to resist for any other reason, by taking
advantage of that state or inability, shall be punished by
imprisonment for between six months and eight years.
Sexual abuse of a person unable to resist Art. 172
Whoever performs an act of sexual relevance with or on a child
under 14 years old, or induces such a child to perform the said
sexual act on himself or another person, shall be punished by
imprisonment for between one and eight years.
Sexual abuse of children
Whoever performs any of the acts specified in the previous
paragraph for lucrative purposes shall be punished by
imprisonment for between 6 months and 3 years.Art. 173
Whoever performs a sexual act as defined in Art. 172 No. 1 or 2,
or induces a person to perform the said sexual act:
Sexual abuse of adolescents and dependents
Whoever performs a sexual act defined in Art. 172 No. 3 on any
of the minor persons specified in this Art. No. 1 and under the
conditions specified therein shall be punished by imprisonment
for not more than one year. Art. 174
Whoever performs vaginal intercourse with a minor between 14 and
16 years old by taking advantage of their inexperience shall be
punished by imprisonment for not more than two years or by a
fine of not more 240 daily units.
Statutory rapeArt. 175
Whoever, being adult, performs a act of homosexual relevance
with a minor between 14 and 16 years old, or induces such a
minor to perform the said act on somebody else, shall be
punished by imprisonment for not more than two years or by a
fine of not more than 240 daily units. Art. 176
Whoever incites, encourages, facilitates or exploits
prostitution with a minor between 14 and 16 years old, or an act
of sexual relevance for that purpose,
Prostitution of a minorNEXT EUROPEAN ILGA CONFERENCE
The next conference of the European Region of ILGA, ILGA-Europe,
will take place in London 9 - 13 October 1997. The conference
will be arranged by the British union UNISON.
PAPERBACK EDITION OF "SEXUAL ORIENTATION AND HUMAN RIGHTS"
Oxford University Press has now published a paperback edition of "Sexual
Orientation and Human Rights: The United States Constitution, the
European Convention, and the Canadian Charter" by Robert Wintemute of
the School of Law, King's College, University of London. Copies are
£15.99 and may be ordered by post (OUP, Saxon Way West, Corby NN18 9ES,
GB), telephone (+44-1536-454-534), fax (+44-1536-746-337), or e-mail (orders@oup.co.uk). The ISBN is
0-19-826488-7.
ROMANIAN PENAL CODE
By Steffen Jensen
"Sexual relations between persons of the same sex, if committed
in public or causing scandal, are punished with imprisonment
from one to 5 years.
SECRET IGC DOCUMENTS PUBLISHED ON THE INTERNET
Press release by Groen Links, 1 March 1997
Nel van Dijk, MEP for GroenLinks (NL), as of today will publish on the
Internet a selection of
documents drafted by the Dutch EU presidency for the
Intergovernmental Conference (IGC).
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