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San Marino Legal E Study on Homophobia, Transphobia and Discrimination on Grounds of Sexual Orientation and Gender Identity Legal Report: San Marino 1 Disclaimer: This report was drafted by independent experts and is published for information purposes only. Any views or opinions expressed in the report are those of the author and do not represent or engage the Council of Europe or the Office of the Commissioner for Human Rights. 1 This report is based on Dr Maria Gabriella Francioni, The legal and social situation concerning homophobia and discrimination on the grounds of sexual orientation in the Republic of San Marino , University of the Republic of San Marino, Juridical Studies Department, 2010. The latter report is attached to this report. Table of Contents A. EXECUTIVE SUMMARY 3 B. FINDINGS 3 B.1. Overall legal framework 3 B.2. Freedom of Assembly, Association and Expression 10 B.3. Hate crime - hate speech 10 B.4. Family issues 13 B.5. Asylum and subsidiary protection 16 B.6. Education 17 B.7. Employment 18 B.8. Health 20 B.9. Housing and Access to goods and services 21 B.10. Media 22 B.11. Transgender issues 23 Annex 1: List of relevant national laws 27 Annex 2: Report of Dr Maria Gabriella Francioni, The legal and social situation concerning homophobia and discrimination on the grounds of sexual orientation in the Republic of San Marino, University of the Republic of San Marino, Juridical Studies Department, 2010 31 A. Executive Summary 1. The Statutes "Leges Statuae Reipublicae Sancti Marini" that came into force in 1600 and the Laws that reform such Statutes represented the written source for excellence of the Sammarinese legal system. 2. The Republic of San Marino has a few relevant national laws that mention sexual orientation as one of the grounds of discrimination. There are nevertheless many situations not currently covered by national legislation in which citizens might not be legally protected against discrimination on the grounds of sexual orientation and gender identity. This was also recently picked up by a review carried out by the United Nations, which made a recommendation to the Government of San Marino to explicitly state sexual orientation and gender identity in its statute. 3. Same-sex relations, as well as same-sex partnerships, remain invisible both in the public domain and to state regulation. In fact, San Marino has not levelled up the same-sex couples to cohabitants more uxorio, nor to married couples. Same-sex couples do not have access to adoption, although San Marino will allow a single individual to adopt. This latter provision is also used by the government of San Marino to justify the lack of need to recognise same-sex couples the same right to a family. 4. As late as in 2004 Art. 274 of Sammarinese Criminal Code considered as «acts of lust» the facts committed in a public place among same-sex persons was abrogated. 5. Official datum testify the absence of facts on discrimination for sexual orientation and gender identity reasons in San Marino. In this sense, the “Bollettino statistica” (statistics report) published quarterly by the Office of Economic Programming Centre on Elaboration of Datum and Statistics of the Republic of San Marino, does not report Case Laws on the discrimination on the grounds of sexual orientation or gender identity, nor pending suits before the court for this issue. Equally, the Sammarinese Criminal Jurisprudence, containing sentences from 1964 to 1990, does not mention any case of discrimination on the grounds of sexual orientation. 6. Interviews with the Gendarmerie and stakeholders of Sammarinese Commission for the Equal Opportunities confirm the absence of cases of intolerance up to the present day besides from one case brought forward by the president of the national LGBT NGO. The same sources attest no verification of these blameworthy facts of harassment and bullying at school. As regards the labour environment, the Labour Confederations of San Marino has not reported formal cases of dismissal of LGBT persons being forced to leave their work concealing justification of sexual orientation. 7. These quantitative data are extremely concise in giving evidence of the lack, in the San Marino legal system, of discrimination on the grounds of sexual orientation or gender identity against LGBT persons, homophobia, transphobia, and bullying at school. They show the entity of phenomenon but they are not able to explain if and in which measure the rules guaranteeing the equality defend the diversity, the uniqueness and the validity of each experience, included those of LGBT persons. B. Findings B.1. Overall legal framework 8. The Republic of San Marino has peculiar features, that are proper of a strongly homogeneous community tied to its past political-constitutional traditions. 3 9. The legal system of the Republic of San Marino is marked for not possessing a formal constitution; it has documents and laws of a materially constitutional nature. San Marino is a system in which the consuetude, the tardy-Medieval Statute and the laws promulgated by the Great and General Council (Parliament) are in force together with the Common Law (subsidiary and integrative source). The solemn Declaration of the Rights (Law no. 59/1974, as amended by the Law no. 36/2002) has particular relief and, in the system of sources of rights, it hierarchically covers the super-ordered position to the ordinary law proper of strict constitutions. 10. Art. 1 of the Sammarinese Declaration of the Rights establishes that "The Republic of San Marino recognises, as an integral part of its own system, the norms of International law generally recognised and conforms to them its acts and conduct. It complies with the norms contained in the International declarations on human rights and fundamental freedoms (co.1). It reconfirms the right of political asylum. It repudiates war as an instrument to resolve conflicts between States and it conforms, in International action, to the principles ratified in the United Nations Charter (co. 2). Sammarinese law recognises guarantees and enforces the rights and fundamental freedoms enunciated by the European Convention for the Protection of Human Rights and Fundamental Freedoms (co. 3). International agreements protecting the human rights and freedoms officially agreed to and executed, prevail in cases of conflict with internal laws (co. 4)." 11. Essentially, the deeds on which the relations among States on matters of the protection of human rights are based and on which the various States, San Marino also, must address their domestic political and social activity are the following: • two Covenants of the United Nations: the «International Covenant on civil and political Rights» and the «International Covenant on economic, social and cultural Rights», adopted in New York by the General Assembly of the UN on 16 December 1966, in conformity to the Universal Declaration of Human Rights; both documents have been ratified by San Marino with Decree no. 109/1985; • The "European Convention for the Protection of Human Rights and Fundamental Freedoms" elaborated by the Council of Europe that entered into force on 3 September 1953, ratified by San Marino with Decree no. 22/1989. 12. Article 1 of the Declaration of the Rights is commonly defined like that right formed spontaneously on the grounds of consuetudinary rules practised, with time, by the Community of States in their relations. 1 As it happens in the domestic legal system the rules of International law must be identified in concrete terms in those requirements and needs that are widespread in the international conscience. 2 The rules of international rights generally recognised and the international declarations on the matter of human rights and individual freedoms are engaged automatically by the legal system of San Marino. 3 13. The co. 2 of the aforesaid Art. 1 recognises the institute of asylum as an instrument of the protection of human rights. 14. The International declarations and Conventions on the matter of human rights and freedoms mentioned by co. 1 and 3 of Art. 1 of the Declaration of the Rights constitute over-ordered rule to 1Lonfernini,L.2006 Diritto Costituzionale Sammarinese, Università degli Studi della Repubblica di San Marino, Dipartimento di Studi Giuridici, Scuola di Perfezionamento in Diritto Sammarinese, edito dalla Banca Agricola Commerciale della Repubblica di San Marino, Guardagli Editore S.r.l., Rep. San Marino, p. 250. 2 Ibid., pp. 250-251. 3 Ibid., p. 253. The adjustment is a fact that can be pointed and applied to concrete case by Judge; by the Great and General Council that, with law, must conform the domestic rule to the International one, or, in case of doubt or uncertainty, by the College Guarantor opportunely made active. 4 the legal system of San Marino, i.e. they become not a programmatic obligation but a behaviour kept with the automatic adjustment of domestic rules. 4 15. Unlike the principles and norms generally recognised of international rights and of the fundamental rights and freedoms enunciated by the European Convention for the Protection of Human Rights and Fundamental Freedoms, for which it provides the automatic adaptation, the international agreements on the matter of protection of human freedoms and rights (Art. 1, co. 4) become binding if the State has approved them by adhesion to the convention. In this case mentioned by co. 4 of Art. 1 of the Declaration of the Rights, the adhesion is a faculty, not a duty. It means that contents of each international agreement officially agreed to and executed by San Marino has direct legal force in the national legal system: it is the source of inspiration in domestic Case Law for the Internal Authorities in the practical implementation and promotion of rights and it makes for interpretation in an evaluative sense of the National juridical values, based on a community of values.
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