13th Session / Congress Spring Session

Chamber of local authorities

Strasbourg 27 March 2007

Presentation of LGBT report by Valerio Prignachi on behalf of Veronica Sharkey - rapporteur

INTRO- BACKGROUND

• The two texts which I will present to you and which I ask you to approve this morning are about two basic rights in a democracy: freedom of expression and freedom of assembly.

• You will remember that a series of flagrant violations of these rights with regard to lesbians, gays, bisexuals and transgendered persons by local authorities led to the motion for a resolution presented to our Plenary Session in 2006.

• The motion for a resolution was approved and the Committee on Social Cohesion was subsequently mandated to do two things – firstly, to prepare a report giving an overview of the respect of the rights of freedom of expression and assembly for lesbians, gays, bisexuals and transgendered persons (LGBT) at local level, and secondly, and in the light of the results of this overview, to draft a series of recommendations in this respect.

THE REPORT

• The rights we are talking about are nothing new or revolutionary: they are enshrined, among other texts, in the Council of Europe’s Convention on Human Rights which all member states have signed.

• However, the fact is that often it is not the text of the law which is at issue, but its implementation. Upholding the rights to freedom of expression and assembly entails positive obligations on the part of regulatory authorities. In several cities, however, the authorities have failed to protect those who are peacefully exercising their rights in the face of violent opposition. Nonetheless, in many other cities, local authorities have embraced the celebration of LGBT identity, and have played an active and supportive role in promoting and managing Pride events.

• We know that local authorities are key players in the regulatory framework – public authorities must act in a progressive manner which is fully consistent with their obligations according to international and regional human rights standards.

• Our report outlines these standards as they relate to freedom of assembly and expression, explaining how they have been interpreted by their respective monitoring bodies. It also documents examples of practice (good as well as bad) in relation to the role of local authorities in regulating the exercise of these rights.

• Our overview covers a series of thematic areas of concern such as, to name just a few of them:

- The restriction of freedom of assembly and the grounds given by regulatory authorities

- The positive duty of the State to uphold peaceful assembly and the failure of police to provide adequate protection from opposition groups

- Use of inflammatory, homophobic or derogatory language by public officials

• We make extensive reference to relevant European Court of Human Rights decisions throughout the report as well as other pertinent texts such as the Council of Europe’s European Code of Police Ethics, and the commentary that accompanies that Code brings me to our recommendations, for it makes it very clear that the role of the police goes beyond recognizing such fundamental rights as freedom of thought, conscience, religion, expression, peaceful assembly and movement, and includes positively safeguarding those rights – otherwise democracy becomes an empty notion without any basis in reality.

RECOMMENDATIONS

1. This obligation is doubly true for local authorities whose paramount duty it is not only to positively protect the rights to freedom of assembly and expression in a practical and effective manner, but also to refrain from speech likely to legitimise discrimination or hatred based on intolerance; In this respect, therefore, we ask local authorities to take appropriate steps to combat hate speech on the basis of the principles laid down in Committee of Ministers Recommendation No. R(97)20 and to make certain that they and their employees set an example of tolerance, discharging their duties in a manner which is neither arbitrary nor discriminatory and that they do not impose restrictions on the basis of the content or message of an event.

2. With regard to organization of LGBT events – every effort should be made to ensure that notification procedures are as free from bureaucracy as possible, the public has adequate access to reliable information relating to forthcoming events, as well as to information on discrimination and intolerance and that the costs of cleaning up after an event are not imposed on the organiser of a non-commercial event.

3. A theoretical risk of disorder, or the mere presence of opposition, is insufficient to justify restrictions on public events. When there are legitimate fears of potential public disorder, authorities should restrict the right to peaceful assembly only as a last resort, having exhausted all other means of reaching agreement about the event, following an open, objective and transparent assessment of all available information and having offered the organizer of the proposed event an opportunity to respond to any particular concerns raised by the regulatory authority. In fact, the reasons for imposing any restrictions should be published sufficiently far in advance of the notified date of the event so as to enable the organizer to challenge the legality of the restrictions in a court of law before the event is due to take place. Furthermore, the authorities should impose only the least restrictive time, place or manner possible to achieve the stated legitimate aim. Adequate policing should be provided to ensure the safety of all involved: local authorities have an obligation to enable lawful assemblies to proceed peacefully through the provision of adequate measures to prevent attacks by violent opponents.

4. We recommend the consolidation of the relationship between local police and the community by ensuring better human rights and non-discrimination training of officers, the application of international standards of policing – in particular as regards the use of force – and the dispersal of assemblies only as a measure of last resort. Organizers should never have to hire their own security personnel as this can constitute a form of prior restriction, undermining the positive obligation of authorities to protect the exercise of these rights;

5. We feel that it is important to create a capacity for mediation of disputes between opposed groups and suggest linking up with local civil society organizations with mediation experience.

6. Lastly, we feel that trained, independent monitors would be able to provide an objective account of LGBT events, oversee policing arrangements involving counter-protesters or sensitive locations or check compliance with the terms of any mediated agreement, and local authorities may consider forging links with the OSCE/ODIHR to develop and pilot a monitoring programme in relation to LGBT events.

7. We invite the Commissioner for Human Rights to work closely with our Committee on Social Cohesion with regard to questions of discrimination against members of the LGBT community, for example in the context of co-operation with ombudspersons.

8. We ask of governments that they take a public stand against discrimination and investigate all cases of hate speech and homophobic violence with rigour. Furthermore they should keep local authorities informed of all new legislation and relevant case-law pertaining to freedom of assembly and expression and anti-discrimination measures.

CONCLUSION

• The rights of lesbian, gay, bisexual and transgendered persons to freedom of expression and assembly are essential not only for their own personal development, dignity and fulfillment as citizens, but also for the promotion and protection of equality and democracy and for the progress of society as a cohesive whole;

• Furthermore, the essence of a democracy is that all minority or dissenting views have a right to be heard. The European Court of Human Rights has often stated that freedom of expression and peaceful assembly extends to ideas that are not favourably received for, and I quote, “such are the demands of that pluralism, tolerance and broadmindedness without which there is no democratic society”.

• I ask you, therefore, to approve the recommendation and resolution you have before you for presentation to the Spring Session in 2007 for adoption.

• Thank you.



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