Essential points

· The Council of Europe upholds the fundamental human rights of lesbian, gay, bisexual and transgender persons in application of the principles of equality and non-discrimination, a key element of the protection of human and minority rights.

· The Committee of Ministers, the Parliamentary Assembly and the Congress of Local and Regional Authorities have issued several recommendations and resolutions calling upon governments and local authorities to take the requisite measures to combat incitement to homophobia. “Although homosexuality has been decriminalised throughout Europe, deeply rooted prejudices remain” said Thorbjørn Jagland, Secretary General of the Council of Europe, on International Day against Homophobia, 17 May 2010.

· In this spirit, on 31 March 2010 the Committee of Ministers of the Council of Europe adopted a recommendation to member states "on measures to combat discrimination on grounds of sexual orientation or gender identity". The text asks States to look at situations of discrimination against LGBT persons, adopt specific measures to combat discrimination, ensure respect for LGBT persons, promote tolerance towards them and ensure that victims have access to legal remedies. It is the first international legal text expressly concerning the problem of homophobia and is a progress that is welcomed by the LGBT community.

Questions and answers

What is homophobia ?

Although there is no single legal definition of homophobia per se, acts which are considered to be homophobic are prohibited in countries’ national law if they result in discrimination or violence. Homophobia therefore includes physical and verbal violence, hate crimes and hate speech, undue restrictions on freedom of expression, assembly and association, violations of the right to respect for private and family life, violations of rights to education, work and health, as well as regular stigmatisation (Resolution 1728 adopted by the PACE in 2010.).

What is the situation in the different Council of Europe member states with regard to this issue?

ILGA-Europe, an NGO whose membership comprises associations for the defence of LGBT persons in the 47 Council of Europe member states, has appraised national laws and practices relating to LGBT persons from the standpoint of human rights protection standards and has given member states marks on a scale from 1 to 10: Sweden (10), Belgium (9) and the Netherlands (9) set the example, while Ukraine (-2), Russia (-2), Turkey (-1) and Moldova (-1) have a negative score.

For further information, see the detailed table of summaries here.

What are the Council of Europe's main instruments for countering homophobia?

The principle of equality and non-discrimination is a fundamental element in the protection of human rights. It is guaranteed by the European Convention on Human Rights (Article 14) and was reinforced by Protocol No.12 to the Convention, which in a general manner, provides that no-one shall be discriminated against on any ground by any public authority.

In 1997, the Committee of Ministers of the Council of Europe adopted a Recommendation on hate speech stipulating that the term “shall be understood as covering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin”.

Hate speech with regard to LGBT persons is also a type of hate speech.

Considering that the European Sports Charter states that sport is a key factor in social integration and that participation in sport must be open to all, and in view of the complaints made by gays and lesbians that they are often excluded from sports activities, on 25 November 2003 the Parliamentary Assembly of the Council of Europe adopted a recommendation (No. 1635) on lesbians and gays in sport, calling on member states to launch active campaigns against homophobia in sport.

In 2007, the Congress of Local and Regional Authorities adopted a resolution on freedom of assembly and expression for lesbians, gays, bisexuals and transgendered persons. Referring to Articles 10 (freedom of assembly) and 14 (non discrimination) of the ECHR, the Congress called on local authorities in Council of Europe member states to take all the requisite measures to ensure that LGBT persons can fully exercise their rights to freedom of assembly and of expression in all Council of Europe member states.

In October 2007, the International Centre for the Legal Protection of Human Rights (INTERIGHTS) lodged a collective complaint against Croatia on the grounds that pupils in Croatian schools did not have the right to sexual education without discrimination, as prescribed in the preamble of the European Social Charter. In a resolution CM/ResChS(2009)7 the Committee of Ministers subsequently called on Croatia to bring the situation into conformity with the Charter.

On 31 March the Committee of Ministers of the Council of Europe adopted an unprecedented recommendation to member states "on measures to combat discrimination on grounds of sexual orientation or gender identity". The text provides a list of steps to be taken in all areas concerned by homophobia (employment, health, education, the right to life etc.) and urges states to put this recommendation into practice (see essential points).

On 29 April 2010, following a debate on discrimination on the basis of sexual orientation and gender identity, the PACE again condemned the various forms of discrimination suffered by LGBT people and called on the Committee of Ministers to ensure the implementation of its recent recommendation while taking further action to combat homophobia. In a resolution adopted on 29 April the Parliamentary Assembly also called on European States to guarantee ''legal recognition of same-sex partnerships only when national legislation envisages such recognition'' and provide for the possibility of ''joint parental responsibility'' for each partner's children ''bearing in mind the interests of children. While pointing out that the eradication of homophobia and transphobia "requires political will" in member States, the adopted text also asks that legislation and practice guarantee the right of transgender persons to "official documents that reflect their preferred gender role" and the right of access to gender reassignment treatment.

What are the landmark judgments of the European Court of Human Rights in this field?

Homophobic acts in several states point to systematic violation of the fundamental rights of lesbians, gays, bisexuals and transsexuals (LGBTs). These occurrences have also shown that in many cases such injustice is condoned and sometimes even actively supported by the very authorities whose strict duty it is to protect their citizens against all discrimination.

International Day against Homophobia is celebrated every year on 17 May with the aim of promoting specific awareness-raising and preventive actions to counter homophobia.

The Council of Europe's Court of Human Rights has been a key player in advancing gay rights through a number of landmark judgements, including the right of gay people to serve in the armed forces, challenges to consent laws, and custody rights

Karner v. Austria (24 July 2003)

Siegmund Karner complained about the Austrian courts' decision that he did not have the right to succeed to his partner’s tenancy as the statutory right of a family member to succeed to a tenancy did not apply to homosexual couples.

Violation of Article 14 (prohibition of discrimination) taken together with Article 8 (right to respect for private and family life)

Norris v. Ireland (26 October 1988)

David Norris complained about the existence in Ireland of laws which made certain

homosexual practices between consenting adult men criminal offences.

Violation of Article 8 (right to respect for private life)

Bączkowski and Others v. Poland (3 May 2007)

The applicants were the Foundation for Equality (Fundacja Równosci) and five of its members, who also belonged to non-governmental organisations campaigning on behalf of persons of homosexual orientation. They complained inter alia about the Mayor of Warsaw's refusal to allow them to march in the streets of Warsaw as part of an "Equality Days" campaign.

Violation of Article 11 (freedom of association and assembly)

Violation of Article 13 (right to an effective remedy)

Violation of Article 14 (prohibition of discrimination)

EB v. France (22 January 2008)

The application concerned the French authorities' refusal to grant the applicant's request to adopt a child, allegedly on account of her sexual orientation.

Violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 8 (right to respect for private and family life)

Smith and Grady v. United Kingdom (27 September 1999)

The applicants claimed that the investigations into their sexual orientation and their subsequent discharge from the Royal Air Force on the sole ground that they were homosexual, pursuant to the Ministry of Defence's policy against homosexuals in the British army, violated their right to respect for their private lives.
Violation of Article 8

Violation of Article 13

Salgueiro da Silva Mouta v. Portugal (21 March 2000)

The applicant complained about the Lisbon Appeal Court's decision to award his ex-wife, rather than himself, custody of their daughter, M, solely on the ground of his sexual orientation.

Violation of Article 8 of the Convention taken in conjunction with Article 14

L. and V. v. Austria (9 January 2003)

The applicant complained about the maintenance in force of Article 209 of the Criminal Code, which criminalised homosexual acts of adult men with consenting adolescents between the ages of 14 and 18, and of his conviction under that provision. He alleged that his right to respect for his private life had been violated and that the contested provision was discriminatory, as heterosexual or lesbian relations between adults and adolescents in the same age bracket were not punishable.

The Court held that there had been a violation of Article 14 taken in conjunction with Article 8 because the Government had not offered convincing and weighty reasons justifying the maintenance in force of Article 209 of the Criminal Code and, consequently, the applicants' conviction.

Kozak v. Poland (20 March 2010)

Violation of the Convention on account of the refusal to grant a homosexual the right to succeed to a tenancy after the death of his partner.

Contact:

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www.coe.int

Updated: July 2010