Monday, 20 October 2014

Recently communicated complaints concerning alleged defamation of a Portuguese TV presenter and mistreatment by Bulgarian police

The European Court of Human Rights has recently communicated the following two complaints:

Sousa Goucha v Portugal 

The applicant is a well-known male television presenter in Portugal. Since 2008, it has been publicly known that he is gay.

On 28 December 2009 one of the channels of the national television service (RTP2) broadcast a live talk-show. In the course of the programme, during a quiz, the following question was asked to the guests: 'Who is the best Portuguese female TV presenter?' The possible answers to the question included the name of three female TV presenters and the applicant’s (which was designated as the correct one).

The applicant was unsuccessful in the domestic courts with regard to his complaint that he was the victim of defamation and insults. 

In his complaint to the European Court of Human Rights, the applicant relies on Article 14 of the Convention, taken with Article 8, to complain that he has been discriminated against by the domestic courts on the grounds of his homosexuality.

Kostadinov v Bulgaria

The applicant, along with more than 80 other people, was arrested during the first Gay Pride event in Sofia in 2008. 

The arrests were made in the context of a heavy police presence at the event as a result of threats of violence against gay men and lesbians from far-right groups. 

The applicant claims he showed no sign of aggression towards the participants of Gay Pride and had no intention to be violent towards them. 

In his complaint to the European Court of Human Rights, the applicant submits that the circumstances of his arrest - in particuar the fact that he was forced to remain for 30 minutes on the ground before the eyes of many passers-by and journalists, the unwarranted use of force against him, his transport to the police station and detention for more than nine hours in undignified conditions - amount to inhuman and degrading treatment contrary to Article 3 of the Convention. 

Under Article 3 of the Convention he also complains that the authorities have failed in their obligation to conduct an effective investigation into his allegations of abuse.







Saturday, 11 October 2014

59th anniversary of the first complaint to Strasbourg about sexual orientation discrimination

This week marks the 59th anniversary of the first complaint to the former European Commission of Human Rights about discrimination based on sexual orientation.

The complaint was lodged on 10 October 1955 by a male applicant, Mr. W.B., who was serving a fifteen month term of imprisonment in Hagen. It was registered by the Commission on 12 October 1955.

Mr. W.B. had been convicted for 'two cases of homosexuality' (contrary to article 175 of the German Criminal Code) and 'attempted serious homosexuality' (contrary to article 175a of the German Criminal Code).

In 1954, at the time of his conviction, the German Criminal Code imposed a total prohibition on male homosexual acts. The extensive regulation of sexual relationships between men was the result of an amendment to the criminal law by the National Socialist German Workers' (Nazi) Party.

Mr. W.B.'s complaint to the Commission

Mr. W.B. complained that his conviction for homosexual acts violated his rights under the following articles of the European Convention on Human Rights:

Article 2 - Right to life
Article 8 - Right to respect for private and family life
Article 14 - Prohibition of discrimination 
Article 17 - Prohibition of abuse of rights
Article 18 - Limitation on use of restrictions on rights

Specifically, Mr. W.B. complained that the existence of law that criminalised male homosexual acts infringed the right to respect for private life (Article 8) and, because it was limited to acts between men, infringed the principle of 'sexual non-discrimination' (Articles 8 and 14 combined).

The Commission's decision

The Commission declared the complaint inadmissible. 

In doing so, it held that:

The Convention 'permits a High Contracting Party to legislate to make homosexuality a punishable offence' and, in respect of Article 8, that 'private and family life may be the subject of interference' by laws 'dealing with the protection of health or morals'.

Furthermore, Article 14 of the Convention 'does not exclude the possibility of a High Contracting Party differentiating between the sexes in the measures it takes with regard to homosexuality for the protection of health or morals'. 

The result of the decision in W.B.

The Commission's terse response (as Robert Wintemute describes it) to Mr. W.B.'s complaint remains astonishing.

The applicant was convicted under laws that had been shaped by German National Socialism - the politics of which the ECHR was developed to respond to.

The Commission's decision established that any regulation of private and consensual homosexual acts between men, including their total prohibition, did not violate any aspect of the ECHR. As such, the Commission implicitly sent the message to gay men: you have no human rights. 

It took 26 years for the Strasbourg organs to change their mind. It was not until 1981 that they finally recognised that the total prohibition of male homosexual acts amounted to a violation of the right to respect for private life.

Remembering Mr. W.B.

Next year, on the 60th anniversary of Mr. W.B.'s complaint to the Commission, I will hold a seminar at the University of York with the provisional title '60 years of complaining: what's left to achieve?'.

Please email me, if you would like to attend! 






  


Friday, 26 September 2014

Alekseyev v Russia - further decisions from the Committee of Ministers

The Committee of Ministers of the Council of Europe have published further decisions in respect of their supervision of the execution of the judgment in Alekseyev v Russia

At their 1208th "DH" meeting on 25 September 2014, the Deputies 'expressed serious concern' that the majority of requests made to hold gay pride events in Moscow, St Petersburg, Kostroma and Arkhangelsk between 1 July 2013 and 1 May 2014 have been refused in light of the law prohibiting “propaganda of non-traditional sexual relations”. 

The Deputies further noted 'with great regret' that, in light of the extremely low number of events authorised, that the 'exercise of the important right to assembly is not sufficiently recognised and protected by the Russian authorities'.

What is deeply worrying about the Deputies' decisions is that they appear to have shelved further consideration of the non-compliance with the Alekseyev judgment to June 2015. Between now and June 2015 the Deputies urge the Russian authorities to take action to ensure that gay and lesbian public events are not hindered by the 'propaganda' law, including by way of 'awareness-raising'. 

By June 2015 the Alekseyev judgment will be nearly five years old. In that time, Russia has enacted Federal law that effectively increases the ability of public authorities to restrict the public expression and assembly of sexual minorities. And the European Court of Human Rights has failed to consider and deliver judgment in respect of pending applications that complain that the propaganda laws violate Convention rights. 

Sexual minorities in Russia might justifiably look to the Council of Europe, its Court of Human Rights, and its Committee of Ministers and ask: what are you doing to address the ongoing and systematic violation of human rights and fundamental freedoms of persons solely on the grounds of their sexual orientation?

The Decisions can be read in full here:

https://wcd.coe.int/ViewDoc.jsp?Ref=CM/Del/OJ/DH(2014)1208/16&Language=lanFrench&Ver=original&Site=CM&BackColorInternet=DBDCF2&BackColorIntranet=FDC864&BackColorLogged=FDC864



Russia's Constitutional Court upholds 'homosexual propoganda' law

The Constitutional Court of the Russian Federation has held that Article 6.21 of the Code of Administrative Offences, which prohibits ‘propaganda of non-traditional sexual relationships among minors’, is constitutionally compliant. 

In a judgment dated 23 September 2014, the Court held that the propaganda law does not contravene the Constitution of the Russian Federation because:

  • it is aimed at the protection of constitutionally significant values ​​such as family and childhood;
  • it is designed to prevent harm to the health of minors, including their moral and spiritual development; 
  • it does not interfere in the sphere of individual autonomy or self-determination, including in respect of sexual identity;
  • it is not intended to prohibit or censure 'unconventional' sexual relationships;
  • it does not prevent an impartial public debate on the legal status of sexual minorities, including the organisation of public events to achieve this.

The judgment will no doubt form a significant element in forthcoming considerations of the propaganda law by both the Committee of Ministers in their supervision of the execution of Alekseyev v Russia and by the European Court of Human Rights in future complaints. 

The judgment is available here:

File: 24-П/2014




Friday, 19 September 2014

Same-sex couples and marriage: a short guide to Article 12 of the ECHR

I have produced a 'short guide' to marriage, same-sex couples, and Article 12 of the European Convention on Human Rights.

The short guide can be downloaded here:

https://drive.google.com/file/d/0ByFm9fY-KH05ZjBvVVBndk5lOGs/edit?usp=sharing


My thanks to Damian Gonzalez-Salzberg (University of Sheffield), Loveday Hodson (University of Leicester), and Robert Vanderbeck (University of Leeds) for reading and commenting on the draft of this guide.

Saturday, 13 September 2014

E.B. v Austria - complaint about alleged sexual orientation discrimination by an applicant convicted of child sex offences declared inadmissible

The European Court of Human Rights has declared the complaint in E.B. v Austria inadmissible. This follows a previous inadmissibility decision and judgment in respect of complaints by the same applicant. 

I have written a short article about the decision for the European Courts website, which can be found here:

http://europeancourts.blogspot.nl/2014/09/eb-v-austria-no-conditional-prison.html