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Human Rights Council discusses violence and discrimination based on sexual orientation and gender identity and the independence of judges and lawyers

24 June 2019

MIDDAY

GENEVA (24 June 2019) - The Human Rights Council in its midday meeting held a clustered interactive dialogue with the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, and the Special Rapporteur on the independence of judges and lawyers.

At the beginning of the meeting, the President of the Human Rights Council, Coly Seck, said that the United Nations, including the Human Rights Council, had a zero tolerance policy for any kind of harassment, including sexual harassment, and stressed that all allegations would be addressed without delay. He also noted resolutions that categorically rejected any kind of intimidation or reprisals taken against persons or groups that cooperated with the United Nations. All allegations of reprisals would be addressed.

Victor Madrigal-Borloz, Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, introducing his reports, recalled that States had created his mandate in recognition of the abuse that the lesbian, gay, bisexual, trans and gender-diverse gender community around the world continued to suffer. The mandate aimed, inter alia, to bring their lived reality to light, a reality that included daily exclusion and discrimination, and heinous acts such as torture and arbitrary killings, committed in all corners of the world. The report before the Council examined how to use data to create heightened awareness of violence and discrimination based on sexual orientation and gender identity, the risks associated with data collection, use and storage, and it highlighted key human rights safeguards in this regard. The Independent Expert also introduced the reports on his visits to Georgia and Mozambique

Georgia and Mozambique spoke as concerned countries.

Diego Garcia-Sayan, Special Rapporteur on the independence of judges and lawyers, said that his report focused on the exercise of the rights to freedom of expression, association and peaceful assembly by judges and prosecutors, both offline and online. In some cases, the interference with the exercise of judges’ and prosecutors’ fundamental freedoms could not be regarded as being necessary in a democratic society to pursue a legitimate aim but had rather been used to punish judges for the opinions expressed or actions taken in the exercise of their profession, sometimes causing a chilling effect on other members of the judiciary or public prosecution. In times of grave democratic crises, judges not only had the right but also the duty to speak up in favour of the restoration of the democratic order.

Morocco spoke as a concerned country.

Speaking in the discussion were Uruguay (on behalf of a group of countries); European union; Sweden (on behalf of the Nordic and Baltic countries); Angola (on behalf of the African group); Austria (on behalf of a group of countries); Peru (on behalf of a group of countries); United Kingdom (on behalf of a group of countries); Finland; Montenegro; Norway; Slovenia; Russian Federation; Un-women; Canada; Burkina Faso; Uruguay; Tunisia; Germany; Australia; Cuba; France; Israel; Algeria; Thailand; Spain; Liechtenstein; Venezuela; Maldives; Netherlands; Ecuador; Hungary; Malta; South Africa; Myanmar; New Zealand; Iraq; Portugal; Chile; Costa Rica; Bolivia; Switzerland; Colombia; China; Iran; Honduras; Belgium; United Kingdom; Luxembourg; Nepal; Iceland; Ukraine; Ireland; Mexico; Albania; Greece; Indonesia; Gambia; Peru; International Development Law Organization; Morocco; Spain; Burkina Faso; India; Tunisia; Australia; Malaysia; Uruguay; UNICEF; Cuba; Fiji; France; Algeria; Japan; Thailand; Malta; Montenegro; Paraguay; Venezuela; and Egypt.

Also taking the floor were the following civil society organizations: Lawyers for Lawyers; Terra de Direi (in a joint statement with Conselho Indigenista Missionário CIMI"); Federatie van Nederlandse Verenigingen tot Integratie Van Homoseksualiteit - COC Nederland; European Region of the International Lesbian and Gay Federation (in a joint statement with International Lesbian and Gay Association); Helsinki Foundation for Human Rights; International Planned Parenthood Federation; Swedish Federation of Lesbian, Gay, Bisexual and Transgender Rights (in a joint statement with International Lesbian and Gay Association); UNESCO Centre of Catalonia; Human Rights Council of Australia, Inc. (in a joint statement with Human Rights Law Centre); Colombian Commission of Jurists (in a joint statement with World Organisation Against Torture; International Commission of Jurists; British Humanist Association; Human Rights Now; Asociacion HazteOir.org; and Iraqi Development Organization.

This afternoon, the Council will next hold a clustered interactive dialogue with the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, and the Special Rapporteur on the elimination of discrimination against persons affected by leprosy and their family members.

Documentation

The Council has before it the Report of the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity (A/HRC/41/45).

The Council has before an addendum to the Report of the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity – visit to Georgia (A/HRC/41/45/Add.1).

The Council has before it the Report of the Special Rapporteur on the independence of judges and lawyers (A/HRC/41/48).

Interactive Dialogue with the Independent Expert on Protection against Violence and Discrimination Based on Sexual Orientation and Gender Identity, and the Special Rapporteur on the Independence of Judges and Lawyers

Remarks by the President of the Human Rights Council

COLY SECK, President of the Human Rights Council, said that the United Nations, including the Human Rights Council, had a zero tolerance policy for any kind of harassment, including sexual harassment. All allegations would be addressed without delay. He also noted resolutions that categorically rejected any kind of intimidation or reprisals taken against persons or groups that cooperated with the United Nations, and asked all States to guarantee the protection afforded to these groups. All allegations of reprisals would be addressed.

Presentation of Reports

VICTOR MADRIGAL-BORLOZ, Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, introducing his report, underlined that 60 per cent of bisexual women were victims of rape, physical violence and/or stalking by an intimate partner in their lives and recalled that States had created his mandate in recognition of the abuse that the lesbian, gay, bisexual, trans and gender diverse community around the world continued to suffer. He said trans persons had an average life expectancy of 35 years, which meant that at 29 years old a trans woman was entering old age, asking if that induced States to action? The Independent Expert underlined that his mandate aimed, inter alia, to bring the lived reality of lesbian, gay, bisexual, trans and gender diverse people around the world to light. Within those realities there was daily exclusion and discrimination and heinous acts, including torture and arbitrary killings, committed in all corners of the world, with victims presumed to be in the millions. The report before the Council examined how to use data to create heightened awareness of violence and discrimination based on sexual orientation and gender identity, the risks associated with data collection, use and storage, and it highlighted key human rights safeguards in this regard. In his report, the Independent Expert found that barriers created by criminalization, pathologization, demonization, and stigmatization hindered accurate estimates regarding the world population affected by violence and discrimination based on sexual orientation and gender identity. Maintaining such a level of ignorance without seeking appropriate evidence was tantamount to criminal negligence, stressed Mr. Madrigal-Borloz and insisted that gathering data on its demographic, economic, social, and cultural characteristics, literacy rates, unemployment rates, voting patterns, exposure to hate speech, hate crimes, and discriminate acts was a key element in the State obligation to prevent, prosecute, and punish violations of human rights. It was also a duty, under the Sustainable Development Goals, if States were to know who was left behind.

The Independent Expert also presented the report from his visit to Georgia, which must be commended for the impressive progress in setting up the legal, policy, and institutional framework to tackle violence and discrimination based on sexual orientation and gender identity, as well as the report from his visit to Mozambique where the culture of tolerance fully owned and cherished by the people constituted an extraordinary capital to protect lesbian, gay, bisexual, trans and gender diverse people from levels of violence to which they were subjected in other parts of the world. Mr. Madrigal-Borloz commended the decisions of Angola, Botswana and India to remove colonial era laws criminalizing consensual same-sex relations, and urged the 69 remaining countries that still made criminals of their siblings because of who they were or who they loved or desired, to see those processes of decriminalization as motivation to examine their own legal frameworks and to bring themselves into full compliance with this human rights imperative.

DIEGO GARCIA-SAYAN, Special Rapporteur on the independence of judges and lawyers, said his visit to Guatemala had been postponed to a later date at the request of the national authorities and his visit to Morocco had not materialized due to a disagreement with the State authorities. This year’s report focused on the exercise of the rights to freedom of expression, association and peaceful assembly by judges and prosecutors, both offline and online. In some cases, the interference with the exercise of judges’ and prosecutors’ fundamental freedoms could not be regarded as being necessary in a democratic society to pursue a legitimate aim but had rather been used to punish judges for the opinions expressed or actions taken in the exercise of their profession, sometimes causing a chilling effect on other members of the judiciary or public prosecution. Judges and prosecutors should not in principle be involved in public controversies. When they considered it a moral duty to speak, it was generally permissible for them to participate in peaceful demonstrations. In times of grave democratic crises, judges not only had the right but also the duty to speak up in favour of the restoration of the democratic order. Judges and prosecutors should show circumspection in their relations with the press. They should always refrain from comments on the cases they were dealing with, and avoid any unjustified observations that may call their impartiality into question. They should also be cautious when using social media.

Turing to political rights, Mr. Garcia-Sayan stated that judges and prosecutors were allowed to exercise their political rights on an equal basis with other citizens. Their direct participation in political activities posed, however, some dilemmas. It was widely accepted that judges should show restraint in the exercises of public political activity to preserve public confidence in the judicial system. This did not mean that judges and prosecutors should refrain from expressing their views on any issue that may have political implications. With regards to direct involvement in politics, there was no general international consensus on whether they should be free to participate in politics or not. It was necessary, however, for judges and prosecutors to refrain from any political activity that might compromise their independence or jeopardize the appearance of their impartiality. Acts of global and transnational corruption were major threats which assigned judges and prosecutors, in the United Nations Convention against Corruption, a crucial responsibility in combatting corruption. The international community would next year celebrate the thirty-fifth anniversary of the Basic Principles of the Independence of the Judiciary, and the thirtieth anniversary of the Basic Principles on the Role of Lawyers. These instruments had contributed to upholding the independence of the judiciary and the legal profession against various forms of interference. Mr. Gracia-Sayan said he would devote his forthcoming report to the General Assembly to a critical assessment of the Basic Principles on the Independence of the Judiciary, with the hope that it could contribute to their enrichment.

Statements by Concerned Countries

Georgia, speaking as a concerned country, reiterated Georgia’s commitment to the principle of a standing invitation to all human rights mechanisms, which was instrumental in advancing democratic values and the rule of law, and recalled that it had been only 25 years since Georgia had regained its independence. The Independent Expert in his report had identified the progress achieved in legal and institutional reforms on matters of gender, violence and discrimination, which included the amendment of 30 normative acts to align domestic law with the ratified Istanbul Convention and the adoption of the Action Plan 2018-2020. It was regrettable that the Independent Expert had not been able to assess the situation in the occupied Abkhazia and Tskhinvali regions due to the refusal by the occupying power. Georgia had embarked on the ambitious journey towards enhancing its institutional, legal, and policy framework; those reforms were significant milestones in the special efforts to implement sensitive approaches in parallel with providing effective response to violence and discrimination towards lesbian, gay, bisexual, trans and gender diverse community. It would be difficult to solve the challenges overnight, but the Government was doing its utmost to do so.

Mozambique, speaking as a concerned country, reiterated that no law in the country was ever meant to criminalize anyone based on their sexual orientation, and that there was no policy or legal framework in Mozambique which encouraged or allowed discrimination, stigmatization or exclusion of any segment of people. Turning to the recommendations contained in the Independent Expert’s report, Mozambique said that it would consider acceding to the International Covenant on Economic, Social and Cultural Rights when it deemed timely and appropriate, and also said that it did not see the merit of amending article 35 of the Constitution and the Penal Code to explicitly refer to the rights of lesbian, gay, bisexual, trans and gender diverse people. Accepting the need for awareness campaigns for the acceptance of lesbian, gay, bisexual, trans and gender diverse people as human beings like others, Mozambique stressed that a paradigm shift in moral and social norms in a society deeply rooted on heterosexuality would represent a challenge. This group of people, like any other segment of the society, would not be left behind in the achievement of the 17 Sustainable Development Goals, Mozambique stressed.

Morocco, speaking as a concerned country, stressed that the Special Rapporteur on the independence of judges and lawyers had decided on his own initiative to postpone his visit to Morocco. The arguments put forward by the Special Rapporteur were excessive. Mr. García-Sayán should read the reports of his counterparts who had spoken about their complete freedom and the cooperation of the Moroccan authorities during their visits to the country. Morocco also contested the use by the mandate holder of a press conference to explain the reasons for the postponement of his visit.

Interactive Discussion

Several delegations expressed support for the mandate of the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, stressing its relevance. They pledged to vote in favour of its renewal this session and urged others to do so. While noting encouraging developments, including in Botswana and Bhutan, some delegates pointed out that still today more than 30 countries continued to criminalize lesbian, gay, bisexual and transgender people. The fundamental principle of equality enshrined in the Universal Declaration of Human Rights was applicable to all individuals and all forms of violence against individuals based on sexual orientation and gender identity must be condemned. Criminalization, stigmatization and negation increased the risk of violence against lesbian, gay, bisexual and transgender persons. According to some speakers, it was crucial to ensure access to universal healthcare to promote and defend the rights of these groups. Others stressed that accurate data was the basis to prevent and address such violence, as research continued to form the basis for the development of targeted and effective policies. In that regard, there was an urgent need for the collection and analysis of disaggregated data, lest some persons and groups within the lesbian, gay, bisexual and transgender communities be left behind. The collection and dissemination of such data would be a step on the road to address the problem. It was important to prevent the misuse of such data. Delegates asked what steps could States take to use data collection and research to combat violence based on sexual orientation and gender identity. What were examples and practices of data collection in smaller States? Other delegates asked how Member States could prevent the misuse of collected data, notably health-related information. In that regard, did the Independent Expert have any specific concerns related to cyber-security? What could States do to address them?

On the independence of judges and lawyers, some speakers expressed attachment to the separation of powers, saying the specificity of judges and prosecutors’ duties and responsibilities warranted specific restrictions on freedom of expression, belief, association and assembly. Some remarked that such restrictions should be established through legislation and be commensurate. Others stressed the need to continuously provide training on ethical principles relating to the fundamental freedom of judges. Maintaining the dignity of their office as well as the independence and impartiality of the judiciary could require that judges and prosecutors take a stand to defend fundamental liberties. The establishment of guidelines on the use of social media was deemed necessary by some to avoid excess on the part of both civil servants and the State. In that regard, delegates asked for the Special Rapporteur’s guidance and advice. How could social media and new technologies be used to bolster the independence and dignity of the judiciary? Could they be of use in the fight against corruption? Delegates also enquired about the Special Rapporteur’s opinion on priority areas to further safeguard judicial independence.

Interim Remarks by the Independent Expert and the Special Rapporteur

VICTOR MADRIGAL-BORLOZ, Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, in response to questions and remarks by the delegations, stressed that data had a role in ensuring prevention, prosecution and remedy for human rights violations. A point of departure was to build an evidence base for the best way to change the minds by obtaining evidence of the lived realities of people all around the world. The report conveyed only a fraction of the many examples of good practices from a great number of States, he said, and stressed that first and foremost, it was imperative to dismantle the criminalizing legislation and to build a conducive legal framework. Secondly, the Independent Expert stressed the principle of “nothing about us without us” and emphasized the imperative of the participation of lesbian, gay, bisexual, trans and diverse gender individuals. Thirdly, there was a need to involve those who were operating and handling the data, considering that due to technological progress and developments, data moved in contexts that literally changed at the speed of light. In short, when it came to data collection and analysis in this domain, the applicable principles that represented the basis of a human rights based approach were do no harm, self-determination, privacy, and lawful use authorization. On safe spaces, the Independent Expert provided the example of a non-governmental organization which had to burn 20 years’ worth of data because the State had passed a law that criminalized the possession of data on sexual orientation and gender identity of individuals.

DIEGO GARCIA-SAYAN, Special Rapporteur on the independence of judges and lawyers, said that from now on the use of social media should be seen as a fact, and that the isolation of judges from the social media sphere was not a positive thing. In parallel to what was being done in the human rights sector, the United Nations Office on Drugs and Crime was trying to build standards for the use of social media. All countries were encouraged to work on the development of guidelines, and in that context, establishing a dialogue with national and international organizations representing judges and members of the judiciary was particularly important. Mr. Garcia-Sayan underscored the need to update the Basic Principles to better address new challenges faced by judges and prosecutors. In this context, it would be illogical to maintain Basic Principles that had no reference to the major challenges posed by corruption. It was also important to include integrity in the Basic Principles. Mr. Garcia-Sayan thanked all for the contributions made today, which contributed to strengthening his mandate.

Interactive Dialogue

Some speakers said populist claims to the effect that promoting the rights of the lesbian, gay, bisexual and transgender persons was counter-cultural or anti-social amounted to hate speech. Race multiplied the effect of discrimination. When individuals from the lesbian, gay, bisexual and transgender community sought protection from the violence they faced, they could be subjected to harassment, humiliation, abuse or arrest. Every individual had the right to be protected against all forms of violence and discrimination, without any form of distinction. No country was immune to challenges in that regard. Dialogue on mutual tolerance and respect could help eliminate violence based on gender identity and sexual orientation. The de-criminalization of lesbian, gay, bisexual and transgender relationships in Botswana was welcomed. The crucial role played by civil society in collecting information about violence and discrimination against members of the lesbian, gay, bisexual and transgender community deserved praise. On data collection, what were the best practices encountered by the Independent Expert? What lessons could be learned from instances of misuse of data? Delegations asked how better data collection could help further the Independent Expert’s agenda and what steps could be taken by the international community to further facilitate the efforts of civil society organizations in promoting and protecting the human rights of lesbian, gay, bisexual and transgender persons.

With regard to the independence of judges and lawyers, speakers said that the use of social media by members of the judiciary generated new ethical problems and issues relating to the nature of the content posted and unwitting displays of partiality, inter alia, which called for the establishment of guidelines. Some countries underscored that the independence and transparency of the judiciary were the pillars of the rule of law, which itself cemented the promotion and protection of human rights. Excessive limitations on the judges and prosecutors’ liberties could undermine confidence in the system and jeopardize impartiality, some said. Others stressed that these limitations should not go beyond what was permitted by the law. It was important to strike a balance between the rights of members of the judiciary and the State’s interest in maintaining an independent judiciary. What was the Special Rapporteur’s views on the international community criticizing and pressuring a developing country’s judicial system by demanding the release of certain persons? A speaker stressed the need to avoid that due to political correctness imposed by the “lesbian, gay, bisexual and transgender ideology”, limitations of freedom of speech were not imposed on those expressing contrary opinions.

Concluding Remarks

VICTOR MADRIGAL-BORLOZ, Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, stressed in his concluding remarks the connectivity between and within different levels - national, regional, and global, and with and between sectors. The fundamental areas of work included connectivity with the Sustainable Development Goals thinking, thus the report to the General Assembly in October would address the issue of social inclusion. He would continue to remain seized with the issue of conversion therapy. He thanked the States of Iceland, Ukraine and Sri Lanka for their invitations. The Independent Expert also underlined the role of judges in protecting fundamental rights and freedoms.

DIEGO GARCIA-SAYAN, Special Rapporteur on the independence of judges and lawyers, in his concluding remarks, said that some examples of good practices were the Basic Principles adopted in 1985 and the general comments issued by the Human Rights Committee in 2007, which presented detailed guidance on key concepts, such as the stability of tenure and freedom from political influence. Tackling nepotism and the separation of powers were also good practices. Mr. Garcia-Sayan also underlined the role of the judiciary in addressing corruption, stressing that this phenomenon was no longer left unpunished and there was an end to impunity. The Special Rapporteur thanked Albania for the invitation to visit. Reacting to the comments made by Morocco concerning the cancellation of the trip to that country this year, he stressed that when a visit was proposed, it was within his purview to establish the itinerary in order to ensure his independence. It was unacceptable that the host country should try to impose a visit or a certain region on the Special Rapporteur.

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Human Rights Council discusses violence and discrimination based on sexual orientation and gender identity and the independence of judges and lawyers

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