What does 2019 EU Enlargement Package say on LGBTI rights?

Each year the European Commission adopts its "Enlargement package" - a set of documents explaining its policy on EU enlargement. Most importantly, this package includes a Communication on enlargement which sets out the way forward and takes stock of the situation in the candidate countries and potential candidates. In addition to this communication, the package contains the Reports in which the Commission services present their detailed assessment of the state of play in each candidate country and potential candidate, what has been achieved over the last year, and set out guidelines on reform priorities.

Six countries in the Western Balkans (Albania, Bosnia and Herzegovina, Kosovo, Montenegro, North Macedonia, Serbia) and Turkey are currently involved in the EU accession process and are covered under this "Enlargement package". While some of these countries show constant level of progress towards the EU, others are still expected to take more concrete steps or to overcome current political developments negatively affecting the process.

Rights of LGBTI persons are being analyzed in every country which is part of the EU accession process. Here is what the EU highlighted in its 2019 Country Reports:

Albania

Albania has continued to implement the Stabilisation and Association Agreement (SAA). In April 2018, the Commission recommended that the Council decides that accession negotiations be opened with Albania, at the same time encouraging Albania to maintain and deepen the current reform momentum, in particular in the key field of the rule of law. In June 2018, the Council set out the path towards opening accession negotiations in June 2019.

Despite the fact that the Constitution does not include references to sexual orientation and gender identity, Albania's anti-discrimination legislation prohibits discrimination against lesbian, gay, bisexual, transgender and intersex (LGBTI) persons. However, more efforts are needed to protect LGBTI persons from discrimination when it comes to access to health care, education, justice, employment and housing. In 2018, 10 members of the transgender community sought asylum abroad due to severe discrimination. The national action plan for LGBTI persons (2016-2020) lacks a budget and is yet to produce visible results. An interministerial team responsible for monitoring the action plan in Albania is operational and held its last meeting in January 2019 to take stock of implementation. Police officers, prosecutors and gender ‘focal points’ in line ministries have been given training on preventing discrimination on the basis of sexual orientation and gender identity. The donor-funded shelter for LGBTI persons has continued to provide care, support and advocacy to homeless LGBTI individuals. During the reporting period, there were no court rulings in cases related to sexual orientation and gender identity. In addition, public awareness and acceptance of LGBTI persons remain low, particularly in rural areas. Hate speech and discriminatory language continue to be a problem in the media, especially online media. In March 2018, a hate-speech campaign against the LGBTI community developed on social media, with the active participation of members of the Parliament and a former minister. Despite strong statements from the international community, the response of equality bodies and state institutions was limited compared with the gravity of the campaign.

Bosnia and Herzegovina

The Stabilisation and Association Agreement between Bosnia and Herzegovina and the EU was signed on 16 June 2008. The SAA entered into force in 2015. Bosnia and Herzegovina presented its application for membership of the European Union on 15 February 2016. The country faces some important obstacles in further EU accession, such as lack of implementation on the compliance with the 2009 decision of the European Court of Human Rights (ECtHR) in the Sejdić-Finci case.

On the rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) persons, the four criminal codes are harmonised to include hate crimes on grounds of sexual orientation and gender identity. Sexual orientation, gender identity and sex characteristics are also explicitly prohibited grounds for discrimination since the 2016 amendments to the law on anti-discrimination. The Sarajevo Canton appointed a prosecutor as contact person for hate crimes on grounds of sexual orientation and gender identity, which is a good practice. However, the number of court cases on these grounds is negligible. Same-sex couples are continuously discriminated against, as the legal system fails to recognise their social and economic rights, including the right to family life. The social inclusion of intersex and especially transgender persons, who are particularly marginalised, also needs to be improved. The prosecution of hate crimes and hate speech against LGBTI persons is insufficient. Physical assaults have not led to indictments so far. However, law enforcement officials and members of the judiciary have started to receive training on LGBTI issues. Events to raise public awareness on LGBTI issues take place regularly. In 2018 the Constitutional Court recognised that the authorities had violated the right to freedom of assembly of LGBTI persons and the prohibition of torture or inhuman or degrading treatment by failing to ensure the safety of the participants at the 2014 Merlinka Queer Film Festival as well as failing to conduct a thorough investigation and sanction the perpetrators of violence. The festival has taken place regularly since 2014 with adequate public safety. LGBTI associations report growing difficulties in obtaining permits for public events; in May 2017 an LGBT march could not taking place because the public authorities failed to deliver the due permits on time.

Kosovo

The EU-Kosovo Stabilisation and Association Agreement (SAA) has been in force since April 2016. In July 2018, the Commission confirmed that Kosovo has fulfilled all visa liberalisation benchmarks endorsed by the Council. In March 2019, the European Parliament supported the Commission’s proposal for visa liberalisation in its first reading. The proposal is pending in the Council and should be treated as a matter of urgency.

On the rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) persons, the Constitution protects against discrimination based on sexual orientation. In addition, the 2015 Law on anti-discrimination covers both sexual orientation and gender identity. The new Criminal Code broadens the legal protection of LGBTI persons including incorporating gender identity as a new aggravation of punishments and sexual orientation and gender identity as new basis for committing incitement to discord and intolerance. Further efforts are necessary to ensure the adequate implementation of the legislation, including through the LGBTI action plan. In October 2018, the second official LGBTI Pride parade was organised in Pristina and was more widely attended than in 2017. Although the population and public figures are becoming increasingly conscious of LGBTI rights, studies show that public awareness and acceptance of those rights remain low. A rise in hate speech was reported during the Pride Week. More efforts are needed to counter intolerance towards LGBTI persons, as many remain at risk of discrimination and violence. In addition, there are no shelters for LGBTI victims of violence. Cases of hate crime against LGBTI persons are still not always properly investigated and brought to court. A legal framework for legal gender recognition should be developed.

Montenegro

Accession negotiations with Montenegro were opened in June 2012. To date, 32 negotiating chapters have been opened, of which three have been provisionally closed. Montenegro continued to broadly implement the Stabilisation and Association Agreement (SAA) and the meetings of the joint bodies under the agreement took place at regular intervals. Progress towards meeting the interim benchmarks set in the rule of law chapters 23 and 24 will be key for further progress in the negotiations overall.

On the rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) persons, cooperation between civil society, the government and police remains constructive. The Law on civil partnership is currently awaiting adoption in Parliament. The national LGBTI strategy (2013-2018) expired, but a significant portion of the planned activities were not completed. A new national LGBTI strategy is under preparation; its implementation will require adequate budgetary allocations, ownership and genuine and constructive consultations with CSOs. In November 2018, the national pride parade took place in Podgorica without incidents and in an overall peaceful atmosphere. Despite existing legislation providing for protection on grounds of sexual orientation and gender identity, the number of reported cases of hate crime and hate speech towards LGBTI persons is increasing and prosecution of these crimes remain insufficient. Overall, acceptance of sexual diversity is advancing at a slow pace. Continued and proactive efforts are necessary to ensure full and effective implementation of the existing legal and policy framework. Montenegro adopted the 2018 action plan to implement the strategy on improving the quality of life of the LGBTI population, yet no official reports on implementation are available. Treatment of LGBTI persons by social services and the authorities remains inadequate. A pride march was again organised successfully in November 2018 by civil society activists and supported by some local and state institutions. Access to healthcare services needs to be ensured and made available for all vulnerable groups, including LGBTI people.

North Macedonia

The Stabilisation and Association Agreement (SAA) between the Republic of North Macedonia and the EU entered into force in April 2004. Since 2009, the Commission has recommended to the Council to open accession negotiations with North Macedonia, a candidate country since 2005. In light of the progress achieved in previous years, in April 2018 the Commission repeated its unconditional recommendation to open accession negotiations. In June 2018, the Council set out the path towards opening accession negotiations in June 2019.

The rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) persons are better protected following amendments to the Criminal Code and adoption of the new Law on Prevention and Protection from Discrimination. Sexual orientation and gender identity are grounds for protection in both. The positive attitude from the political leadership and advocacy by the LGBTI inter-party group of 13 MPs continued. However, societal prejudice, hate speech, discrimination and widespread intolerance are prevalent against LGBTI persons. Incitement to homophobic/transphobic hatred and violence needs to be more effectively prevented and prosecuted. No final convictions have been issued for the 2012, 2013 and 2014 attacks on the LGBTI support centre. Further efforts are needed on tackling and collecting data on hate crimes and hate speech based on sexual orientation and gender identity. The legal framework does not allow for the official recognition of same-sex couples. Transgender persons’ access to healthcare remains limited. Preparations to establish legally regulated gender recognition procedures were initiated in November 2018. In January 2019, the ECtHR found the country to be in violation of the Article 8 of the Convention related to the right to private and family life following a case related to the absence of legal gender recognition procedures.

Serbia

The European Council granted Serbia the status of candidate country in 2012. The Stabilisation and Association Agreement (SAA) between Serbia and the EU entered into force in September 2013. Serbia continued to implement the SAA, although a number of compliance issues remain. Since the opening of Serbia’s accession negotiations in January 2014, 16 out of 35 chapters have been opened, two of which were provisionally closed.

As regards the rights of LGBTI persons, two pride parades, in June and September 2018, took place without any incidents, the latter attended by the Prime Minister and several highlevel officials. There was a noticeably smaller police presence than in previous years. The first LGBTI community centre in Serbia was opened in Novi Sad in April 2018, primarily targeting LGBTI youth and their families. There was also some progress made in education, as six out of eight textbooks with discriminatory content were changed. Amendments to the law on birth registry now enable the entering of data on gender change into the registry. However, the overall situation in Serbia remains broadly the same as in previous years, with low implementation of activities under the expired anti-discrimination strategy. Implementation of the hate crime legislation, including on grounds of sexual orientation, remains inadequate. While centralised official data on hate crimes is still lacking, civil society organisations reported a slight increase in violence and attacks on LGBTI persons, including from within their families. In November 2018, six years after the introduction of the concept of hate crime in the Criminal Code, the first hate crime decision was delivered in a case of domestic violence, motivated by the fact that the victim was an LGBTI person. Transgender persons are particularly vulnerable to violence, abuse and discrimination. Intersex persons remain invisible both socially and legally. Serbia needs to step up measures to protect the rights of persons facing discrimination, including LGBTI persons, actively pursue investigation and convictions for hate-motivated crimes and adopt a new anti-discrimination strategy. Human rights defenders, together with LGBTI persons, often face hate speech, threats and violence. These abuses should be promptly and properly investigated and penalised. Access to healthcare services needs to be improved for LGBTI people.

Turkey

Turkey remains a key partner for the European Union. The European Council granted the status of candidate country to Turkey in December 1999 and accession negotiations were opened in October 2005. Within the framework of accession negotiations, 16 chapters have been opened so far and one of these was provisionally closed. The General Affairs Council conclusions of June 2018 stated that under the currently prevailing circumstances, Turkey’s accession negotiations have effectively come to a standstill, no further chapters can be considered for opening or closing.

Many human rights defenders, civil society activists, media, academics, politicians, doctors, lawyers, judges and lesbian, gay, bisexual, transgender and intersex (LGBTI) people, are still detained – sometimes without indictment, and are facing smear campaigns by the media and senior politicians. The space for civil society organisations working on fundamental rights and freedoms has further shrunk, notably exemplified by the introduction of further administrative obstacles. The rights-based organisations closed down under the state of emergency have not been offered any legal remedy in respect to confiscations. Since October 2018, following the amendment of the Parliament's rules of procedure, civil society organisations are excluded from the legislative consultation process at parliamentary committees. Inclusive mechanisms for consulting across society as widely as possible are not present. 

There are serious concerns on the protection of the fundamental rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) persons. Turkey should urgently adopt a law on combating discrimination in line with the ECHR, including sexual orientation and gender identity. Turkey should also ratify Protocol 12 of the Convention, which provides for the general prohibition of discrimination, and implement the recommendations of the Council of Europe’s European Commission against Racism and Intolerance. No changes have been introduced to the military disciplinary system or to medical regulations which define homosexuality as a ‘psychosexual disorder/illness’. A new law of January 2018 on disciplinary provisions for the security forces stated that ‘abnormal/pervert’ actions were grounds for dismissal for all security personnel. Activists have been sued for ‘participating in an unauthorised demonstration’. LGBTI activities and Pride parades have been banned or stopped by police in several provinces, among them Ankara, Adana and Istanbul. LGBTI activities can only be carried out informally in closed spaces. In 2018, the Court of Cassation changed its 2015 positive jurisprudence on hate speech by stating that calling LGBTI persons ‘perverts’ is freedom of expression. Hate speech by government officials and media against the LGBTI community continued during the reporting period. Intimidation and violence against the LGBTI community continues to be a major problem, and hate speech against LGBTI persons is not effectively prosecuted, as it is mostly considered to fall within the boundaries of freedom of speech. There is no specific legislation to address these crimes. Hate crime legislation is not in line with international standards, and does not cover hate offences based on sexual orientation. There is limited protection of LGBTI organisations which have received threats. Discrimination towards the LGBTI community is still widespread. Genderbased violence, discrimination, hate speech against minorities, hate crime and violations of human rights of LGBTI persons are still a matter of serious concern. The Ankara Governorate ban on all LGBTI activities imposed in November 2017, which has undermined the visibility of LGBTI communities and their ability to exercise the right to peaceful assembly, ended in April 2019. An administrative court in Ankara decided to lift the ban while an appeal had previously been rejected in November 2018. An increased number of penalties for participants in unauthorised events acted as another constraint on the right to freedom of assembly and association.