IGLHRC Action Alerts

Volume VII, Number 3, 1998

EMERGENCY RESPONSE NETWORK

of the International Gay and Lesbian Human Rights Commission

DATE COUNCIL OF EUROPE: TESTING TIME FOR COMMITMENT TO LESBIAN AND GAY RIGHTS

Europe's largest intergovernmental organization is at a crossroads and must enforce its own human rights standards on sexual orientation on member states.

The Council of Europe (CoE), founded in 1949, is an umbrella organization of 40 European states. Unlike the smaller European Union, which focuses on economic coordination, the CoE promotes adherence to human-rights standards among its present and prospective member States, particularly by monitoring their compliance with the European Convention on Human Rights.

The Council of Europe has committed itself in a number of ways to defending the rights of gays, lesbians, and bisexuals. Most notably, three decisions of the European Court of Human Rights have held that so-called sodomy laws violate the right to privacy under the European Convention; the most recent of these, in 1993, found against a sodomy law in the Republic of Cyprus. Since then, the Council has pressured Cyprus to eliminate that law. In a number of resolution's since 1993, the Council has also called on Romania-a member State as of that year-to repeal a similar law, Article 200 of its penal code.

Recent developments in these countries, however, have put new pressure on the CoE to back up its rhetoric and resolutions with action.

After years of debate, and after direct threats from CoE officials that further delay, might result in the country's expulsion, the Cypriot Parliament voted in May to amend its law on homosexuality. However, the new version continues to discriminate against gay men both in its language and in the punishments it imposes. Article 171 of the new code penalizes "Unnatural licentiousness among males that takes place in public" with 5 years' imprisonment-a punishment both denigratory in its phrasing, and disproportionately more severe than the minor penalties reserved for comparable heterosexual acts committed in public. Moreover, a new Article 174(a) punishes "Indecent behavior, proposition, provocation, and advertisement with the intent to -perform unnatural licentiousness" with one year's imprisonment - language which Cypriot activists point out could be used to prosecute gays for simply placing a personals advertisement.

In making cosmetic changes to the criminal code while preserving discriminatory treatment of homosexuality, Cypriot lawmakers almost certainly were guided by what had already transpired in Romania. There, in 1996, legislators similarly amended the absolute prohibition against homosexuality, to penalize homosexual acts "which cause public scandal." There too, this change was accompanied by new language restricting the rights to free speech and association-punishing "Inciting or encouraging a I person to the practice of sexual relations between persons of the same sex, as well as propaganda or association or any other act of proselytism," with 1-5 years' imprisonment.

Some CoE officials stated that this new language represented compliance on Romania's part with the requirement, imposed on her admission to the Council, to repeal Article 200. Others, rightly, disagreed. In 1997, the Council of Europe's Parliamentary Assembly voted to cease monitoring Romania's human rights record - a procedure which had been imposed on all new member states. At the same time, the Parliamentary Assembly set a one-year deadline for Romania to enact legal changes to complete its compliance with the Council's standards. These were generally understood to include further liberalization of the text of Article 200.

In early 1998, the Romanian Prime Minister promised the CoE that such legal changes - explicitly including the elimination of Article 200 - would be forthcoming directly. Accepting this promise, the Parliamentary Assembly voted in June not to resume the monitoring procedure. However, the Romanian Parliament took this as a signal that the pressure to enact legal reform was at an end. Within five days of the CoE's Parliamentary Assembly's decision, the Romanian Parliament rejected proposals to eliminate Article 200. The existing text of the law remains in place.

Both the Cypriot and Romanian situations resent a challenge to the Council of Europe. Both states gave defied the spirit and letter of the Council's requirements. In order to retain its credibility and remain faithful to its own human rights standards, the Council must act forcefully. It must acknowledge that laws which superficially protect the right to privacy while restricting free expression and association are unacceptable. It must affirm that legally embodied and enforced discrimination on the basis of sexual orientation is wrong. Please write to Council of Europe officials and ask that they pursue sanctions or other disciplinary measures against both Romania and Cyprus. Insist that they do not accept half-measures, but hold out for full repeal of discriminatory legislation in both countries.

Write to:

Mr. Daniel Tarschys

Secretary-General

Council of Europe

67505 Strasbourg Cedex

FRANCE

fax 33 388 41 27 81

33 388 41 27 82

33 388 41 27 83

Mr. Birger Hagard

Chairman, Committee on Legal

Affairs and Human Rights

Parliamentary Assembly of the

Council of Europe

67505 Strasbourg Cedex

FRANCE

fax 33 388 88 41 2702

Mr. Guido de Marco

Chairman, Committee on the

Honouring of Obligations and

Commitments by Member States

of the Council of Europe

Parliamentary Assembly of the

Council of Europe

67505 Strasbourg Cedex

FRANCE

fax 33 388 88 41 2702

You may also send copies of your letters to the delegations of Romania and Cyprus to the CoE, at:

Cyprus: fax no. 33 388 36 90 56

Romania: fax no. 33 388 37 16 70 A sample letter might read

Dear Sir or Madam

I'm writing to express may concern over the failure of Cyprus and Romania to meet their stated obligations to the Council of Europe - obligations incurred both by the Council's own resolutions and under the European Convention of Human Rights. I urge you to see that the Council takes strong action against both States, both to sustain its own credibility as a respected international organization committed to human rights, and to ensure their speedy compliance.

The two cases are similar in the first, the Republic of Cyprus was required by the European Court of Human Rights, in the 1003 case of Modinos V. Cyprus, to eliminate punishment for consensual homosexual acts from its penal code. After lengthy delay, an amendment to the law was passed by the Cypriot Parliament in May of this year. However, the law represents only it cosmetic change. The very language of the new Article 171 - penalizing "unnatural licentiousness between males" with 5 years' imprisonment when committed in public - indicates its discriminatory intent; and the punishment it imposes is far disproportionate to any cornparable penalty on heterosexual acts. Moreover, in penalizing "Indecent behavior, proposition, provocation, and advertisement with the intent to perform unnatural licentiousness" with one year's imprisonment, a new Article 174 imposes unconscionable restrictions on the rights of expression and association. The intent and effect of Cypriot legislation remain the same: to consign a

group of persons to second-class status on the basis of their sexual orientation.

This new legislation in Cyprus seems virtually to copy laws, which have been in force in Romania since 1996. At that time, the Romanian parliament passed a new version of Article 200 of the penal code; the law now punishes "homosexual acts which cause public scandal," as well as "propaganda or association or any other act of proselytism," with 1-5 years in prison. This spring, Prime Minister Radu Vasile promised the CoE's Parliamentary Assembly that this law would be repealed. Instead, in June 1998, the Romanian Parliament voted to retain the existing law. This vote took place only days after the Parliamentary Assembly had decided not to renew monitoring Romania's human-rights record.

The Council must condemn both states for their attempts to evade and defy their obligations. We urge you to press for sanctions against Cyprus, including its possible expulsion from the Council. We urge you to press for appropriate measures against Romania as well - including, at the very minimum, a renewal of' the monitoring procedure as of September. Nothing less will satisfy the dignity of the Council of' Europe, the demands of human-rights activists or the mandates of justice.