Introduction
My activism in the lesbian and gay movement started in the late 1970s. From the beginning I was involved with international work and particularly with the newly founded International Gay Association - now the International, Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA). In 2000 I became a board member of ILGA-Europe, where I took on responsibility for Council of Europe work. Our member organisations in Central and Eastern Europe were becoming increasingly visible in asserting their rights, particularly through organising Pride events. Some were facing an intensifying backlash, with both hostility and violence by extremist groups and suppression by the authorities. Several, particularly, in Poland, Russia and Moldova were turning to the European Court of Human Rights.
In my work on the Council of Europe I was particularly interested in how our member organisations could use its many institutions to put pressure on their government. I was not a lawyer, nor particularly knowledgeable about the distinctly arcane workings of the Council. So, I found myself very much an amateur, having to learn by trial and error. This helped me understand how difficult it would be for our activists, far from Strasbourg, facing huge pressures at home and having to communicate in English rather than their own language, to make best use of the Council of Europe. It made me passionate about supporting NGOs through training them on the Council of Europe’s many human rights mechanisms, and most importantly, on implementing judgments of the European Court of Human Rights.
2005 walking to the Monument to the Oppressed, with Alexei Marcicov and Sti-Ake Petersson (RFSL Sweden) and two others carrying a wreath.
Image Credit: GENDERDOC-M
Background
In 2005 the Moldovan LGBT organisation, GENDERDOC-M, planned to hold a march as part of its Pride celebrations. The director of GENDERDOC-M, Max Anmeghichean, who was a fellow ILGA-Europe board member, invited some foreign activists, including myself, to Chisinau to support the event. That experience really brought home to me the pervasive oppression they faced. By the time we arrived the Pride march had been banned, as had any form of public event. And it went beyond that. At a ceremony to honour people in the community who supported LGBTI rights there were plainclothes police officers in the audience. Every few hours GENDERDOC-M’s president, Mr Marcicov, was telephoned by the police to demand where he was and make sure they were not holding any event in public. But he was not to be outdone. I was startled when suddenly he said: “Let’s go”. We jumped into a van, and evading the police, held a symbolic wreath-laying ceremony at Chisinau’s Monument to the Oppressed. Later, at a press conference, Mr Marcicov sarcastically thanked the police for being so attentive to his organisation, but added that they didn’t need such “protection”.
GENDERDOC-M challenged the 2005 ban on their march in the Moldovan courts. In 2006, when this failed, they took a case to the European Court of Human Rights. They continued to attempt to hold public events but were always prevented. An egregious example of the tactics of the authorities came in 2008. Taking advantage of a new law which permitted demonstrations where fewer than 50 persons were involved without prior authorisation, they organised a busload of activists to demonstrate outside the Parliament. Their attempt had to be abandoned when a hostile mob forced open the bus and compelled the demonstrators, under threat of violence, to hand over their banners and withdraw. Police looked on from a distance, ignoring repeated telephone calls for help.
GENDERDOC-M finally won their case before the Court in 2012. Implementation took until 2019.
How does the execution process supports NGOs like GENDERDOC-M?
2005 after participants laid down the wreath in front of the Monument to the Oppressed.
Image Credit: GENDERDOC-M
The system itself is based on a dialogue between the authorities and the Committee of Ministers of the Council of Europe (CM). What is unusual is that NGOs can participate through written submissions at any time and as frequently as needed. These can be used to comment on the efficacy of implementation measures proposed by the authorities and provide relevant information or correct misinformation in government submissions. The latter can be particularly important. For example, in the case of GENDERDOC-M the government told the CM that they “could hold demonstrations freely”, when this was manifestly untrue.
Providing accurate, irrefutable information is a key to ensuring effective implementation. But importantly, the government has a right of reply. If it fails to exercise this right, particularly where there is a difference of view as to the facts, this can amount to a tacit admission that the NGO is correct.
The implementation of a case like that of GENDERDOC-M can take many years. In this situation the Council of Europe judgment execution process is particularly useful. It provides a rigorous, thoroughly documented system in which information is exchanged and government undertakings are made available at a publicly accessible website. It provides a valuable procedural and factual framework which helps NGOs hold their government to account. And it continues indefinitely, so long as civil society can demonstrate that full and effective implementation has not been achieved.
2005 Genderdoc Press Conference
Maxim Anmeghichean (in the centre), the first Director of Genderdoc-m, Marcicov (on the right ) the founder of Genderdoc-m, and Hans Ytterberg (on the left), who by then was the Swedish Homo-ombudsman - Sweden had created the world's first (and only) ombudsman for lesbian and gay rights.
Image Credit: GENDERDOC-M
How does the implementation of the GENDERDOC-M judgment protect those in the future who organise LGBTI demonstrations?
The original judgment of the Court established the broad principle that LGBTI people have the right to freedom of assembly. However, the immediate guarantee for future demonstrations lies in the efficacy of the detailed measures (such as legal changes, policies, police training) taken to implement the judgment. Beyond that, the authorities know that blocking demonstrations by LGBTI people will lead to further cases which they have no hope of winning; and that these will be followed by further prolonged supervision by the Council of Europe under the implementation process.
2008 Equity March: Genderdoc-M’s bus was blocked by counter-protestors
Image Credit: GENDERDOC-M
Challenges
The main implementation challenge in the GENDERDOC-M case was the resistance of the Moldovan authorities to accepting that LGBTI people should enjoy the right to freedom of assembly. This meant that GENDERDOC-M activists had to show extraordinary courage and persistence in repeatedly, year after year and often in the face of considerable danger, trying to assert their right to hold Pride marches. Within the Committee of Ministers implementation process the challenge was to effectively counter the half-truths and disinformation put forward by the authorities.
Nigel Warner’s advice to CSOs
Winning a case at the European Court of Human Rights means little if it’s not fully and effectively implemented. That means that civil society members should be involved in the implementation process, even where they were not involved in the original case. Without that the way is left open for inadequate implementation and repeat violations. And a huge tactical and strategic tool may be wasted, to say nothing of the years of effort it took to win the case in the first place.
For a detailed assessment of the impact of NGO engagement in the implementation of the GENDERDOC-M case, see here