European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association

Anti-discrimination Protocol comes into force, but many European states delay its ratification

On 1 April 2005, Protocol 12 to the European Convention on Human Rights comes into force.

Protocol 12 brings a major strengthening of the anti-discrimination provisions of the Convention and is potentially beneficial to lesbian, gay, bisexual and transgender Europeans. However, only a few European countries ratified the Protocol and therefore its implementation is being delayed. So far only 11 of 46 European countries who are signatories to the European Human Rights Convention ratified the Protocol (see the list in the notes below). Regrettably EU member states are not on the front line of this important process – only 3 EU member states ratified the Protocol.

Currently, the European Convention on Human Rights does not provide a separate right not to be discriminated against. Secondly, prohibition of discrimination applies only in respect of one of the other rights protected by the Convention. Protocol 12 creates an independent right for individuals not to be discriminated against and a positive duty for public authorities not to allow discrimination. Sexual orientation and gender identity are not listed among prohibited grounds of discrimination. Nevertheless earlier case-law of the European Court of Human Rights clearly stated that discrimination on grounds of sexual orientation and gender identity in some areas breaches the Convention rights. Additionally, the Explanatory Memorandum to the Protocol does make reference to sexual orientation discrimination.

Patricia Prendiville, Executive Director of ILGA-Europe, said: “This is a very significant legal development in European anti-discrimination legislation which has great potential for lesbian, gay, bisexual and transgender people in Europe who still experience discrimination in many areas of their lives.

We urge national parliaments and governments in European countries to sign and ratify the Protocol without delay and to demonstrate their commitment to eliminate discrimination across Europe. We call upon the current Luxembourg Presidency of the European Union to take a lead in encouraging the EU member states to do so.”

For more information please contact Juris Lavrikovs at + 32 – 2 609 54 16

Notes for editors:

  • (1) Full text of the Protocol 12 and a list of countries signed/ratified the Protocol is available at: http://conventions.coe.int/Treaty/EN/cadreprincipal.htm
  • (2) Countries that ratified the Protocol 12 – Albania, Armenia, Bosnia and Herzegovina, Croatia, Cyprus, Finland, Georgia, Netherlands, San Marino, Serbia and Montenegro, the former Yugoslav Republic of Macedonia.
  • (3) Judgements of the European Court of Human Rights when discrimination on grounds of sexual orientation or gender identity was declared in breach of the European Convention on Human Rights include: Salgueiro Da Silva Mouta v. Portugal (1999), Christine Goodwin v. the United Kingdom (2002), Karner v.