Call for Urgent Action to Address Human Rights Violations in Lithuania in Relation to Sexual Orientation

Call for Urgent Action to Address Human Rights Violations in Lithuania in Relation to Sexual Orientation

Special Procedures Division
c/o Office of the United Nations High Commissioner for Human Rights
Office of the United Nations in Geneva
8-14, Avenue de la Paix
1211 Geneva 10
Switzerland

To the attention of:
Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression;
Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health;
Independent Expert on minority issues

Geneva, 20 July 2009

Re: Call for Urgent Action to Address Human Rights Violations in Lithuania in Relation to Sexual Orientation

Distinguished Experts,

As you may be aware, on 14 July 2009, Lithuania’s Parliament (Seimas) voted to enact the Law on the Protection of Minors against the Detrimental Effect of Public Information (the Law), thus overturning the veto of then President Valdas Adamkus on 26 June 2009. Seimas members voted 87 to 6 to overrule the presidential veto. The law will enter into effect in March 2010.

The Law imposes restrictions on “public information that causes detrimental effect on mental health, physical, intellectual or moral development of minors.” Article 4(14) defines such information to include information “that agitates for homosexual, bisexual and polygamous relations.” Article 2(3) defines minors as anyone under 18 years of age. Other such information categorized as “detrimental” includes information related to killing, mutilation and torture, information which displays a dead or cruelly mutilated body, information which arouses fear or horror, and information that views criminal activity in a favorable light (Art. 4(1), (3), (5), and (9) of the Law). Under Article 7(1) it is prohibited to “directly disseminate to minors, offer to them, transfer or otherwise permit personal use” of such information. The Law does not specify the penalties for violations.

The ICJ is concerned that the Law infringes the right to freedom of expression, in particular the freedom to seek, receive and impart information. It could be used to suppress any public discussion of sexual orientation or gender identity. People under the age of 18 will be prevented from accessing information that directly relates to their health and physical, mental and social development. Furthermore, by prohibiting discussion of homosexuality and bisexuality and by associating such information with categories that include information about torture, mutilation, and criminality, the Law both directly discriminates and encourages social stigmatization and prejudice on the basis of sexual orientation in violation of the right to equality.

The ICJ believes that the Law violates several of Lithuania’s obligations under international law and specifically the rights to freedom of expression, equality and protection against discrimination. Article 19 of the Universal Declaration of Human Rights and Article 19 of the International Covenant on Civil and Political Rights (ICCPR), to which Lithuania is a party, provide that everyone shall have the right to freedom of opinion and expression. Article 19 of the ICCPR stipulates that this right “shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”

It cannot be claimed that this restriction on freedom of expression is necessary for the protection of public health or morals. For example, the Human Rights Committee in Toonen v. Australia rejected state arguments that a law criminalizing homosexuality could be defended on public health or morals grounds, reasoning that criminalization of conduct impeded public health programs and that morals were not exclusively a matter of domestic concern. Clearly a restriction on speech should be perceived as unlawful and impeding human rights.

Both under Articles 2 and 7 of the Universal Declaration of Human Rights and Articles 2 para. 1 and 26 of the ICCPR, Lithuania is bound to respect and to ensure to all individuals (within its territory and subject to its jurisdiction) the rights recognized in the Declaration and the ICCPR without distinction of any kind and to “guarantee to all persons equal and effective protection against discrimination” on any one of the enumerated grounds. Also in Toonen v. Australia, the Human Rights Committee held that the reference to “sex” in Article 26 of the ICCPR “is to be taken as including sexual orientation.”

Similarly, Article 2 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR), to which Lithuania is a party, guarantees the rights stipulated in the ICESCR to everyone “without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” In General Comment No. 20, the Committee on Economic, Social and Cultural Rights held that “other status” includes sexual orientation. “States parties should ensure that a person’s sexual orientation is not a barrier to realising Covenant rights.”

The ICJ recalls that the Special Procedures have often expressed concern at the enactment or application of laws that criminalize homosexuality or otherwise violate human rights on the grounds of sexual orientation. In his last annual report, the Special Rapporteur on the right to freedom of opinion and expression stated that any “limitations on freedom of expression should be clearly defined and provided by law. Limitations should not threaten the exercise of the right itself. In addition, they ought to be necessary and proportionate to the objective they propound to achieve, and should include the least intrusive means insofar as freedom of expression is concerned, to prevent a chilling effect.” In his report on the visit to Colombia, the Special Rapporteur wrote that “all citizens, regardless of, inter alia, their sexual orientation, have the right to express themselves, and to seek, receive and impart information. […] Gay and lesbian groups and individuals’ right to freedom of opinion and expression is hindered by the opposition they find in the media where sexual issues, especially homosexuality, are treated in a prudish and traditional way and never broadcast on prime time.”

The obligation of States to ensure the right of all persons, regardless of sexual orientation and gender identity, to freedom of expression and opinion is also enshrined in Principle 19 of the Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity. The Principles were drafted and adopted by a group of human rights experts that included judges, academics, members of the Special Procedures and treaty bodies of the United Nations, and former UN High Commissioner for Human Rights Mary Robinson. Most recently, they have been cited by the Committee on Economic, Cultural and Social Rights in General Comment No. 20 and the High Court of Delhi (India) in a decision striking down the criminalization of same sex conduct.

In light of the above, the ICJ requests that you consider taking the following action:

 Send an urgent appeal to the Government of Lithuania expressing concern about a threat of human rights violations in relation to sexual orientation and urging that the relevant parts of the legislation be revoked or amended before its entry into effect;
 Issue a public statement reminding the Government of Lithuania of the related human rights obligations, including under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights;
 Seek a commitment from the Government of Lithuania that it prevent human rights violations in relation to sexual orientation and will not discriminate on the grounds of sexual orientation and gender identity;
 Further contribute to addressing those issues, including during the interactive dialogues and negotiations of the relevant resolutions at the subsequent sessions of the UN Human Rights Council.

Should you wish to discuss this matter further, please do not hesitate to contact my colleagues Jan Borgen or Lukas Machon at the ICJ.

I look forward to hearing from you.

Yours sincerely,

Federico Andreu Guzman
General Counsel