ILGA Euroletter 71,
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EU COMMISSION RECOGNISES PARTNERSHIPFrom "Commission en Direct" No. 128, 20-26 May 1999 and Egalite Commission extending the notion of "family" in staff regulations. Taking the UN, the World Bank, KLM and IBM as an example: EGALITE members Peter Frei, Giovanna Bucaco and Geert Roosens would like the EU institutions to recognise all relationships, whether registered or not, straight, gay or lesbian. Homosexual couples who are officially registered in Denmark, Sweden and Holland may benefit from a Commission household allowance, pending a "special reasoned decision". Egalite, the organisation for gay and lesbian equality in the EU institutions, is fighting to extend this possibility to non-registered partnerships, whether homosexual or heterosexual. In 1998, an amendment to the EU Staff Regulations inserted a clause requiring equal treatment without reference to sexual orientation. Nevertheless a specific marital or other legal status is still required to get a household allowance from the Commission. This means that only gays and lesbians who come from the three countries where homosexuals can choose to make their union official and legally binding - Denmark, Sweden and Holland - can benefit from a Commission household allowance, though not automatically but on the basis of a "special reasoned decision". So far, very few homosexual couples have applied for it. EGALITE, the organisation for lesbian and gay equality in the European institutions, is working to extend the notion of family within the Staff Regulations. The aim is to include non-married same-sex and opposite-sex couples. "A number of private companies and public institutions recognise relationships regardless if they are registered or not, regardless of whether they are straight or gay or lesbian. They simply follow the evolution of society", says Peter Frey, member of EGALITE and freelance interpreter. Together with Geert Roosens (Translation Service), President of EGALITE, he mentions a few - KLM, IBM, United Nations and the World Bank. Commissioner Erkki Liikanen (Personnel and Administration ) announced at the March meeting of the EPintergroup on equal rights for gays and lesbians, that he would propose a modification of the Staff Regulations at the end of April. This proposition would have recognised registered and stable partners and given them rights equivalent to those of married couples. The resignation of the Commission is nevertheless a set back to these plans. As it is now, married couples can obtain a household allowance, which is automatically granted when the spouse has an income below a certain level. The allowance can also be granted by a special reasoned decision. Registered partners can apply for it on the basis of sharing a household. One of the conditions is that the official, in a legal way, assumes family responsibilities. In the Commission, household allowance has until now been granted to one gay couple. "It is a first and welcome step", says Geert Roosens, "but it is not a general solution, and it certainly does not provide for equal treatment of married and non-married couples." Danish, Swedish and Dutch homosexuals can register their partnership according to their national law, thus assuming legal responsibility towards each other. Sarah Evans, director of DG IX. B (Rights and obligations; policies and social actions) explains that it is necessary to have a legal basis in national law to grant household allowance. People have financial responsibilities towards each other when their national law says so. "It is inevitable that there is a difference of treatment where national law has to be taken into account", says Sarah Evans. Not all benefits require a registered partnership, though. Here progress has been made. Same-sex as well as opposite-sex couples who are not married or registered can benefit from 'concubinage'. It gives the partner of an official working in the Commission certain rights like, for example, participating in social groups and language courses, access to certain Commission buildings and a restaurant card. Direct financial allowance however, requires a change in the Staff Regulations. EGALITE has already proposed a modification of the Staff Regulations concerning partnerships. All homosexual and heterosexual couples should be able to benefit from the rights granted to married couples. In order to determine what it takes to form a couple, they suggest an affidavit in which couples must state, among other things, that they have been together for more than six months and that their relationship is not limited in time. EGALITE is not fighting because of financial motives. "It is a question of principle", says Geert Roosens. "The recognition of equality before the law is a fundamental principle of human rights. Since the first version of the Staff Regulations, European society has evolved. Besides traditional marriage, other forms of partnership have gained legal and social recognition. The Staff Regulations should acknowledge this reality." Even though the European institutions have the possibility to grant household allowance to registered partners on a special reasoned decision, this does not provide for equality between registered partners and married couples. In January 1999, a decision by the Court of First Instance of the European Communities showed that registered partnership does not automatically give access to household allowance and other marital rights. Swedish official Sven Englund had filed an appeal against his employer, the Council of the European Union. The Council had refused to recognise his registered partnership. On the basis of the present Staff Regulations, the Court ruled in favour of Council and thus did not grant him the rights of a married man. He has appealed to the European Court of Justice. Sweden supports his appeal. In DG IX (Personnel and Administration) they will work to include the recognition of partnership when a new Commission sets out to complete the reform of the Staff Regulations. "It is not a problem of lack of willingness", says Sarah Evans. "This issue will only be seriously clarified with a change of the Staff Regulations." ILGA-EUROPE AND THE PLANS FOR AN EU BILL OF RIGHTSBy Kurt Krickler Last year the European Commission had mandated a group of legal experts chaired by Professor Spiros Simitis to study further the issue of fundamental rights in the Union and in particular the drafting of an EU Bill of Rights. ILGA-Europe has closely followed the preparation of the Simitis Report, not at last as a member of the Platform of European Social NGOs, which, together with the European Trade Union Confederation (ETUC), had launched a joint Bill of Rights for the EU campaign at the 2nd European Social Policy Forum in Brussels in June 1998. Although the Simitis Report is completely unsatisfactory in some respects (Platform members are extremely disappointed about its weak proposal with regard to the recognition of social rights in such a Bill), it calls for the incorporation of the European Convention of Human Rights into Community law and of adding to this, among other things, "the right to equality of opportunity and treatment without any distinction such as ... sexual orientation". The Report has meanwhile been published by the Commission in several languages and was presented at the European Forum "A European Charter of Fundamental Rights - A Contribution to a Common Identity" organised by the German Presidency in Cologne on 27 April (in which a representative of ILGA-Europe participated). In this Forum, the German Presidency also announced that they would propose to the EU Cologne Summit that a Declaration be adopted by the Member States to the effect of embarking on the avenue of formulating such a Bill of Rights. The Summit, however, would not adopt any text of a Charter yet. Such a text is foreseen to be adopted under the French Presidency in the second half of the year 2000 (and could only become Community Law by a new Treaty after another intergovernmental conference). Details of these plans have also been published by Agence Europe on 17 May 1999. Besides the implementation of Article 13 and the inclusion of sexual orientation in Article 14 of the European Convention on Human Rights, the recognition of non-discrimination based on sexual orientation as a human right in a future EU Charter of Fundamental Rights is one of ILGA-Europe's highest priorities. ILGA-Europe will certainly continue to closely follow this process of codifying a Bill of Rights for the EU and to lobby accordingly. This issue will, therefore, also be subject for discussion in the meeting between representatives of ILGA-Europe and the German EU Presidency to take place in Bonn on 27 May. LESBIAN, GAY AND BISEXUAL RIGHTS TAKE CENTRE STAGE IN ELECTION OF NEW SECRETARY-GENERAL FOR THE COUNCIL OF EUROPEBy Nigel Warner On Wednesday parliamentarians from 41 countries elected a new Secretary-General for the Council of Europe. He is the right of centre Austrian, Walter Schwimmer, who gained just two more votes than his main opponent, the British left of centre candidate, Terry Davis. Traditionally, elections for the position of Secretary-General have been settled in advance by agreements between the political groupings within the Parliamentary Assembly of the Council of Europe. Back in mid-1998, when the candidates were announced, this election looked little different. The Liberal Group, which holds the balance of power in the Assembly, had a long-standing agreement with the main right of centre party, the European People's Party: they would support that party's candidate (Walter Schwimmer) in return for the European People's Party's support for their candidate five years earlier. With this agreement Walter Schwimmer was assured of victory by a comfortable margin - perhaps 50 votes. His position was made even stronger by the fact that his main opponent was a Briton. The other principal job at the Council of Europe, that of President of the Parliamentary Assembly, is held by another Briton. It would be unprecedented for the two positions to be held by one country. But then, in August 1998, lesbian and gay rights entered the equation: ILGA Europe was alerted to the fact that Walter Schwimmer had, on four occasions, voted against the fundamental rights of lesbians, gay and bisexual people in the Austrian Parliament, in breach of the human rights standards of the Council of Europe. In particular, he had voted against the repeal of laws which imposed a discriminatory age of consent, and which restricted the rights of freedom of expression and freedom of association. He had also voted against granting the right of compensation to the lesbian and gay victims of the Nazis. ILGA Europe launched a nine-month campaign to persuade the governments and members of the Parliamentary Assembly that a person with Walter Schwimmer's voting record was not suitable as Secretary-General of Europe's most important human rights organisation. Its member organisations across Europe, from the Ukraine to Portugal, from Slovenia to Ireland, lobbied their Members of Parliament and Foreign Ministries in opposition to Walter Schwimmer. As he travelled around Europe promoting his candidacy, he faced hostile questioning from parliamentarians and the media. A particular focus for ILGA-Europe's campaign was the Liberal Group in the Parliamentary Assembly. ILGA Europe argued repeatedly to its members that their responsibility lay in upholding fundamental human rights in Europe rather than in supporting a deal over jobs between political parties. One month before the election ILGA Europe asked the three candidates for a public statement of their position on discrimination against lesbian and gays. Walter Schwimmer responded with a strong statement against such discrimination, a statement which ILGA Europe welcomed in letters to all Representatives at the Parliamentary Assembly. Notwithstanding this turn of events the Liberal Group decided, on the eve of the election, to allow its members a free vote. The rest is history: a comfortable majority was turned into the slenderest of margins. "Europe's lesbian and gay community has shown that it has both the political support and the capacity to campaign effectively across some 41 countries. We have brought home to governments and parliamentarians that the continent's 50 million lesbian, gay, bisexual and transgendered people are a force to be reckoned with and will not allow their rights to be trampled on", said Nigel Warner, coordinator of the campaign for ILGA Europe. "Homophobic individuals, be they parliamentarians, judges or civil servants, who seek high office in Europe's human rights organisations, have been served a clear warning: they will face determined opposition right across Europe", said Nico Beger, ILGA-Europe Board Member and co-representative to the Council of Europe. Kurt Krickler, co-chair of ILGA Europe, and secretary-general of Austria's national lesbian and gay organisation, HOSI-Wien commented: "The Austrian government, which put forward Walter Schwimmer as candidate, has been acutely embarrassed. Never again, we believe, will a European government propose a candidate for such a position in the belief that lesbian and gay rights can safely be ignored". BACKGROUND INFORMATION ON THE COUNCIL OF EUROPEThe Council of Europe is the continent's most important human rights organisation, with some 41 member states subscribing to its human rights standards. It was set up after the Second World War with the purpose of trying to ensure that the human rights atrocities of the 1930's and 1940's were never repeated again in Europe. It "owns" the European Convention on Human Rights and is the seat of the European Court of Human Rights. It is governed by the Foreign Ministers of its member states (who together form its "Committee of Ministers") and by representatives from their parliaments (who make up its "Parliamentary Assembly"). The Secretary-Generalship is important both symbolically, and as its senior executive position. The Council of Europe has played an historic role in the promotion of lesbian, gay, bisexual and transgendered rights in Europe. In 1981 the Parliamentary Assembly passed a resolution on "discrimination against homosexuals". This was the first such resolution in support of lesbian and gay rights by any international parliamentary body. In the same year the European Court of Human Rights ruled that the ban on the gay male relationships in Northern Ireland was in breach of the European Convention. Again, this was a "first" for any international human rights tribunal. During the 1990s the Council of Europe's insistence that new members must repeal legislation banning lesbian and gay relationships has been responsible for the almost total repeal of such legislation in the European countries of the former Soviet bloc. SAME SEX IMMIGRATION IN UKLegal update by Stonewall The Home Office has now announced the outcome of its long awaited review of the 'unmarried partners' concession. The period of cohabitation required before being allowed to stay has been reduced from four years to two years. The announcement was made in the form of a response to a written question on 16 June 1999. We will be putting together a detailed briefing shortly however the main points are:The period of cohabitation has been reduced from four to two years The probationary period has been increased from one to two years People who are illegally here will also be considered under the new policy If a relationship ends through the death of one partner or proven domestic violence during the probationary period the foreign partner will still be allowed to stay We have agreed with the Home Office that pending cases should be dealt with as quickly as possible and that we would provide a list of all outstanding cases. If you know of any pending cases that fit the new criteria I would be grateful for details. Ideally we would like name, nationality date of birth and Home Office reference number. The policy takes immediate effect and successful applicants will be given permission to remain for an initial probationary period of two years (with the right to work etc). If the relationship is still subsisting after this two-year period the applicant can then apply for permanent residency in the UK. If the relationship ends during the two-year probationary period due to the death of a partner or proven domestic violence, the applicant will still be entitled to permanent residency. This is a major achievement for the group, brought about by patient lobbying and persuasive arguments. Everyone involved should be congratulated, but particular tribute is due to those couples who have, through their individual cases, survived the difficulties and contradictions of the four-year rule. BOSNIA-HERZEGOVINA DECRIMINALISED HOMOSEXUALITY IN 1998By Bjørn Skolander For some time there has been conflicting data concerning legislation dealing with homosexuality in the Federation of Bosnia-Herzegovina and Republika Srpska. According to a report from the Swedish Embassy in Sarajevo (13 March 1998) to RFSL (The Swedish gay and lesbian organisation) a new penal code for the Federation of B&H was being worked out with the assistance of international legal experts. In the new penal code homosexuality would no longer be a criminal offence. When it came to R. Srpska the work on a new penal code started in January 1998. ILGA's World Legal Survey states "...homosexuality isn't illegal any more, and the age of consent is now 16 years. The law changed last year in November." [comments apply to Bosnia, not R Srpska] (ILGA correspondent - 1 April 99)". A quite surprising statement to many of us who are following the European gay and lesbian legislation closely. As we all have Bosnia listed as a country that outlaws gay sex. I am therefore very pleased to be able to confirm that the Federation of Bosnia-Herzegovina did in fact decriminalise in 1998. According to the Swedish Embassy in Sarajevo (fax 9 June 1999) a new penal code was introduced in the Federation of Bosnia-Herzegovina on 28 November 1998. The new penal code has no reference to homosexuality, and it is accordingly no longer a criminal offence in the Federation. In Republika Srpska a new penal code is still being worked on. It is expected to be introduced later this summer. Until then, the old Yugoslavian legislation which outlaws homosexuality is still into force (the 1998 embassy report did state that homosexuality is not a criminal offence in Republika Srpska). SEXUAL OFFENCE AND AGE OF CONSENT IN LATVIABy Juris Ludvigs Lavrikovs, Homosexuality Information Centre, Riga, Latvia In Euroletter 62 information was given regarding the new Criminal Law in Latvia which was adopted by the Saeima (Latvian Parliament) in July 1998. One of the provisions of the law enacting the new Criminal Law was that the date of entry into force of the Law would be laid down in a separate law. On 15 October 1998 the corresponding law "On the Time and Order of Entry into Force of the Criminal Law" was adopted and the date of entry into force was set - 1 April 1999. In the same issue of the Euroletter it was stated that Article 161 of the Criminal Law "Sexual acts with a person who has not reached the age of 16" establishes 16 years as the minimum allowed age for all consenting sexual acts. Recent study of the Criminal Law as well as academic literature and commentaries by legal scholars, however, reveal new facts, and further explanations regarding the age of consent in Latvia are needed. Vaginal intercourse between persons of opposite sexes Article 161 "Sexual acts with a person who has not reached the age of 16" provides that "sexual acts with a person who has not reached the age of 16, where the latter is in material or other dependence on the person committing the sexual act, or where such act is committed by a person of full age,- shall be punished by imprisonment for up to 4 years". 'Sexual act' is understood solely as vaginal intercourse between man and woman. The Latvian legislator regard as 'natural' only such intercourse and therefore other forms of sexual acts such as gay and lesbian sex, or anal and oral intercourse between persons of opposite sexes do not fall under the term 'sexual act'. According to Article 11 of the Criminal Law "Age at which criminal accountability starts" only persons who have reached the age of 14 can be called to criminal accountability. Article 161 makes a sexual act a criminal offence where there is material or other dependence of a person who has not reached the age of 16 on the person committing sexual act or where the act is committed by a person of full age (in Latvia from the age of 18). Therefore the Law establishes two different minimum allowed ages (14 and 16 years depending on the situation) for vaginal intercourse between persons of opposite sexes. Accordingly, if a 14 to 17 years old person engages in consenting vaginal intercourse with 14 to 15 years old person and there is no form of dependence between them, formally there is no offence. If a person of 18 or more years engages in the same intercourse, that person is punishable under Article 161. The limit of 14 years comes from Article 159 "Rape", which provides that committing a sexual act taking advantage of a person's helpless state is equal to rape. According to Decision No 6 of the Supreme Court of the Republic of Latvia of 19 October 1992 "On Court practice in the application of laws which define criminal responsibility for sexual offences", a state of helplessness considered to exist "where a person, because of her/his physical or psychological state, could not understand the character and the meaning of the action committed with that person". As an example of such a physical or psychological state is cited the fact of a person being a minor. Article 11 of the Criminal Law defines a person younger than 14 a minor. For the same reason of 'naturalness', the legislator separate the rape of a woman by a man from all other forms of violent sexual acts. Thus Article 159 "Rape" is understood exclusively as forced vaginal intercourse between man and woman where the man is the one who exerts the force. Article 159 reads: (1) Sexual acts committed with violence, threats or taking advantage of a person's helpless state (rape),- unished by imprisonment for up to 7 years, with or without police monitoring for up to 3 years. (2) Rape committed by a person who has previously committed rape, or committed by a group of persons, or rape of a persons who has not reached full age,- punished by imprisonment for 5 to 15 years, with or without police monitoring for up to 3 years. (3) Rape which causes serious damage or rape of minor,- punished by life imprisonment or imprisonment for 10 to 20 years, with or without police monitoring for up to 3 years. Lesbian and gay sex, and non-vaginal sex between persons of opposite sexes All other sexual acts such as lesbian and gay sex, anal, oral and all other imaginable sexual acts between persons of opposite sexes (these are "actions which imitate sexual intercourse such as oral and anal sex, insertion of a hand into woman's vagina, the touching of a woman's sexual organs or other parts of her body by his penis") which are referred to by legislators as "unnatural" sexual gratification are covered, where violence is involved, by Article 160 of the Criminal Law "Violent sexual gratification". The Article reads as follow:
It was explained above that according to Latvian law a person is regarded as a minor if she/he is younger than 14. A persons is regarded as not of full age if she/he is between 14 and 18. Despite the fact that Article 160 deals primarily with the violent sexual intercourse it is possible to identify a minimum allowed age for consenting sexual acts between persons of the same sex and for non-vaginal sexual acts between persons of opposite sexes. Thus similarly to Article 159 "Rape",Article 160 punishes such sexual acts which are committed with a person taking advantage of that person's helpless state. Therefore consenting lesbian and gay sex as well as sexual acts other than vaginal intercourse between persons of opposite sexes committed with a person younger than 14 years of age constitute a punishable violent sexual gratification under Article 160. Article 160 does not contain any provision similar to those of Article 161 regarding dependence and full age on the part of the person committing the sexual act. Consequently no criminal offence is committed when two persons of the same sex or persons of opposite sexes engage in sexual act other than vaginal intercourse and one of them is 18 years of age or older and the other is 14 or 15 years old. The conclusion to be drawn regarding the minimum allowed age for consenting sexual activities is complex: consenting lesbian and gay sex as well as sex between persons of opposite sexes which does not involve vaginal intercourse is legal from the age of 14, but vaginal intercourse between persons of opposite sexes is legal from the age of either 14 or 16, depending on the age of the other person and the dependence situation between them. Other sexual offences A further Article of the Latvian Criminal Law, Article 162 "Enticement to depravity" does not distinguish between homosexuals and heterosexuals and punishes the commission of a depraved act with a person not of full age against the will of that person (162(1)) and commission of a depraved act with minor (162(2)). As some legal commentators on the Criminal Law make clear, depravity can be mental as well as physical. Mental depravity is described as "cynical conversation on sexual issues with the victims or in their presence, the showing of materials of a pornographic nature, instruction regarding unnatural sexual gratification etc.". Physical depravity is understood to be "the revealing and demonstration of sexual organs in front of the victims, the revealing or touching of the victims' sexual organs or other activities involving the touching of the victims' bodies". Other commentators give such examples of depravity as "various bodily movements, conversations, and other activities which cause sexual arousal, unhealthy interest or a perverted idea of sexual life. Accordingly depraved activity includes the performance of sexual acts in front of a person, telling stories about sexual gratification etc.". FINLAND TO ALLOW GAYS TO REGISTER MARRIAGEReuters, June 3, 1999 HELSINKI, Finland - Finnish Justice Minister Johannes Koskinen said on Thursday he backed a proposal to allow homosexual couples to register their unions in the same way as married heterosexuals, paving the way for a change in the law. If the Justice Ministry's proposal is accepted, Finland will join the other Nordic countries in having laws allowing homosexuals and lesbians to register their relationships and grant them almost the same rights as married couples. "In principle, I am for making the relationships official, but the possible legal consequences must be studied," Koskinen told Reuters. The proposal includes equal rights of inheritance, entitlement to survivors' pensions, social benefits and tax relief for couples. The Justice Ministry committee said homosexual couples should also be allowed to separate with the same legal rights as divorcing heterosexuals. But homosexual couples would not gain the right to adopt children, a restriction the Finnish Lesbian and Gay Association SETA has criticised. "We approve the other parts of the proposal, but it leaves the child's position unresolved," SETA secretary-general Rainer Hiltunen said. Koskinen said he did not expect the parliament to debate the proposal until next year. SETA said 100 to 200 Finnish homosexual couples want to register their marriages annually. SPANISH CITY COUNCIL MAY HAVE VIOLATED FUNDAMENTAL RIGHTSby César Lestón, Fundación Triángulo The city of Alcobendas, pop. 60000, in the outskirts of Madrid has been storing data wich violated the right to privacy of the citizens. Metro police -under the supervision of the city council- kept records as to the age, personal appearance, health, race and sexual life of the individuals arrested and/or identified in police controls. When this was disclosed, barely a month ago, the Triangle Foundation filed a complaint to the Protection Data Agency, a government department who provides for the privacy of the citizens to be safeguarded particularly in what regards storing in computer records. This department has now disclosed a procedure has started which might lead to the city council of Alcobendas being heavily fined for it. The Protection Data Agency has already found as many as 416 police records contaning details of sexual life and health records of individuals. While a final ruling is made, and given the very serious nature of the fault, the Protection Data Agency has warned very seriously the city council of Alcobendas against the use of such private data. Miguel Ángel Sánchez, president of the Fundación Triángulo for the Social
Equality of Gays and Lesbians, says: "We are glad of the reaction of the
government agency. Sexual life or health are private matters who should
never be kept in police records".
by Kees Waaldijk (Faculty of Law, Universiteit Leiden, NL) On 25 June 1999 (i.e. on the eve of "Roze Zaterdag", the Dutch name for the Gay and Lesbian Pride Day) the Dutch Cabinet finally approved the introduction of bills to open up marriage and adoption to same-sex partners. The bills will be formally introduced in Parliament on 29 or 30 June, and only then the texts will become public. Normally it would take both chambers of Parliament at least till the end of the year 2000 to debate and approve these bills. So the first same-sex marriages and adoptions would not take place before 2001. The Netherlands might then still be the first country in the world with full marriage rights for gays and lesbians. Same-sex adoption is already possible in Denmark, in several states in the USA and in several provinces of Canada. The Marriage Bill does not seek to do away with registered partnership (possible since January 1998, for both same-sex and different-sex couples). For at least five years marriage and registered partnership will exist alongside each other. Registered partners will get the opportunity to convert their partnership into full marriage. There will hardly be any differences between the legal consequences of a same-sex marriage and those of a traditional different-sex marriage. The only exception will be that if a child is born to a woman in a lesbian marriage, her female spouse will not be presumed to be the "father" of the child. However, through adoption she will be able to become the second legal parent of the child. The rules of adoption will also be almost identical for same-sex and different-sex couples. The only exception will be that same-sex couples will not be allowed to adopt a foreign child. For further background information see my updates on the lengthy process leading up to these bills. Once I have seen the text of the bills and the explanatory memoranda, I will circulate more detailed information. Contact to Euro-Letter:
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[ILGA Euroletter] © ILGA Europe, GLB 1999 |