One of the most significant achievements of the Council of Europe is the European Convention on Human Rights signed in 1950. The Convention provides a set of rights for each individual and places an obligation on the countries who have signed the Convention to guarantee these rights to each individual within their jurisdiction. The following articles of the Convention are particularly relevant to lesbians, gay men and bisexuals:
Article 3 – No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Article 8 – Everyone has the right to respect for his private and family life, his home and correspondence.
Article 10 - Everyone has the right to freedom of expression. The right shall include freedom to hold opinion and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
Article 14 – The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
None of the articles refer specifically to the rights of lesbians, gay men and bisexuals since the creators of the Convention did not have these rights in mind. However, the judges of the European Court of Human Rights in their case-law regarded the Convention as a ‘living instrument’ and demonstrated that Convention rights can be interpreted widely according to the social and attitudinal developments and changes in the member states of the Council of Europe to include lesbian, gay and bisexual rights.
Until recently, lesbians, gay men and bisexuals could not use the protection of Article 14 of the Convention against the discrimination they faced. This was because the creators of the Convention designed the Article in such a way that it did not specify sexuality and could only be used in conjunction with other articles of the Convention.
This situation improved when Protocol 12 of the European Convention on Human Rights was agreed in 2000. This created an independent right not to be discriminated against and placed a duty on public authorities not to discriminate. Article 1 of Protocol 12 reads:
“1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
2. No one shall be discriminated against by any public authority on any grounds such mentioned in paragraph 1.”
Although sexual orientation is again not mentioned among the prohibited grounds of discrimination, the case-law of the European Court of Human Rights established that sexual orientation can be included in ‘other status' in the list of prohibited discrimination. Unfortunately, the UK has neither signed nor ratified this protocol and lesbians, gay men and bisexuals in the UK cannot directly rely on its provisions.
The European Court of Human Rights is a mechanism that allows individuals in Europe to use the protection of the European Convention on Human Rights in practice. If an individual feels that their rights as guaranteed in the Convention have been violated by the state, they can complain to the European Court of Human Rights, having first used all the available judicial avenues of that state.
The Court considers the application and if the issue falls within the remit of the Convention, the Court examines the case and delivers its judgement. Judgements of the Court are legally binding for the state against which a complaint was lauched.
Until a couple of years ago, there was also a European Commission of Human Rights. The Commission carried out the original sifting for the European Court of Human Rights and scanned all incoming complaints. The Commission decided which cases were forwarded to the Court for judgement and which were declared inadmissble. Now the Commission no longer exists and the Court alone considers which cases should be examined and which do not fall within the remit of the Convention.