Thursday, 12 February 2015

Can the Court's jurisprudence on 'de facto marriage' provide a basis to encourage it to recognize the right of same-sex couples to marry?

The International Journal of Law, Policy and the Family have published my article 'Marriage, Heteronormativity, and the European Court of Human Rights: A Reappraisal'.

The premise of this article is that the European Court of Human Rights' jurisprudence relating to 'de facto marriage' provides a useful basis for rethinking the Court's approach to same-sex marriage.

Currently, the Court maintains a clear view that same-sex couples have no right to marry under Article 12 of the European Convention on Human Rights. Because of this, Contracting States are given unlimited discretion (margin of appreciation) to limit access to marriage, and the rights and benefits that flow from it, to different-sex couples.

However, in judgments issued over the last decade, the Court has found in favour of applicants who complained about laws that gave rights and benefits to couples living 'like that of a marriage' or in 'de facto marital cohabitation' but restricted these to opposite-sex couples. In light of this, I reappraise the prevailing view that, in respect of issues relating to same-sex couples, the Court will not 'go near' marriage.

 

Wednesday, 11 February 2015

A.T. v Sweden - newly communicated complaint

The European Court of Human Rights have communicated the complaint in A.T. v Sweden

The applicant is an Iranian national who applied for asylum and a residence permit in Sweden. He primarily claimed that he was homosexual and thus would risk persecution upon return to his home country. His application was rejected.

The applicant complains under Articles 2 and 3 of the Convention that his expulsion from Sweden to Iran would expose him to a real risk of being sentenced to death or subjected to torture or ill-treatment because of his sexual orientation.

The Court has communicated this complaint with unusual swiftness. The application was lodged on 30 December 2014 and communicated on 22 January 2015. The speedy communication of this complaint is likely related to M.E. v Sweden - which concerns a Libyan man who, although married to a man who is a permanent resident in Sweden, was required to return to Libya in order to apply for family reunion - which has been referred to and is pending before the Grand Chamber. 

We can expect a significant judgment from the Grand Chamber later this year in respect of what margin of appreciation is available to Contracting States who wish to return applicants for asylum to jurisdictions that criminalise homosexual acts. 

Friday, 6 February 2015

Supreme Court of Bermuda says denying same-sex couples the opportunity to jointly adopt a child is discrimination and that the ECtHR is wrong to not recognise this

The Supreme Court of Bermuda, in A & B v Director of Child and Family Services & Attorney General, has found in favour of a same-sex couple who complained that their inability to jointly adopt a child, who they have been raising together, constituted unlawful discrimination.

Under Bermuda law, the couple could not jointly adopt the child because joint adoption was available only to married couples. The relevant legislation is section 28(1) of the Adoption Act 2006 which states:

no application shall be made for the adoption of a child by more than one person except in the case of a joint application by a married couple.

Same-sex couples cannot marry in Bermuda, so the couple could not make a joint application to adopt their child.

Hellman J held that denying the couple the opportunity to make a joint application amounted to direct discrimination against unmarried couples because of their marital status, and indirect discrimination against same-sex couples because of their sexual orientation.

Relevance to the ECHR

In considering whether denying same-sex couples the opportunity to jointly adopt a child was justifiable, Hellman J assessed the jurisprudence of the European Court of Human Rights (ECtHR) and, in particular, its judgment in Gas and Dubois v France

In Gas and Dubois the ECtHR held that denying a person in a same-sex relationship the opportunity to adopt their partner’s biological child, because such ‘step parent’ adoption was only available to married couples in France (and, at that point, same-sex couples in France could not marry), did not amount to discrimination under the European Convention on Human Rights (ECHR). 

In respect of the ECtHR's judgment in Gas and Dubois, Hellman J stated:

The [ECtHR] noted […] that for an issue to arise under art 14 [of the ECHR – prohibition on discrimination] there must be a difference in the treatment of persons in “relevantly similar situations”. They held […] that married couples and unmarried couples were not in a relevantly similar situation as marriage conferred a “special status” on those who enter it which gives rise to social, personal and legal consequences. I do not understand how that is supposed to provide a rational basis for prohibiting same-sex couples from adopting, and the majority did not find it necessary to explain the point any further. As Paul Johnson stated in a trenchant criticism of the decision in The Modern Law Review, “the Court’s approach to the question of ‘analogous situation’ in this case will strike many people as perverse or obtuse” (§34-35).

In essence, the Supreme Court of Bermuda has criticised the view of the ECtHR, which is: if a Contracting State provides married couples with rights and benefits that are denied to unmarried couples, and also prevents same-sex couples from marrying, that this does not amount to discrimination (either direct or indirect) because unmarried same-sex couples are not comparable with opposite-sex married couples. The Supreme Court of Bermuda says that approach is not 'rational'. 

The outcome of the judgment

As a result of the judgment, a joint application to adopt a child may now be made by an unmarried couple, whether same-sex or different-sex.

This judgment is very significant, not only for same-sex couples in Bermuda but also because it goes some way to rebut the approach adopted by the ECtHR when considering complaints about discrimination created by laws that reserve rights and benefits for opposite-sex married couples.

Bermuda, as a British Overseas Territory, is within the ECHR system and the voice of its Supreme Court is, in this respect, very important.



Monday, 19 January 2015

A queer reading of the European Court of Human Rights

Damian Gonzalez-Salzberg, lecturer in law at the University of Sheffield, has published a major new article on the European Court of Human Rights' jurisprudence relating to homosexuality. 

The article, which utilises 'queer theory' to interrogate the Court's jurisprudence, provides a highly original, rigorous and meticulous study of a wide range of decisions and judgments. 

The article, 'The making of the Court’s homosexual: a queer reading of the European Court of Human Rights’ case law on same-sex sexuality', is published in Northern Ireland Legal Quarterly (65(4): 371–86). 




 

Wednesday, 31 December 2014

ECHR and sexual orientation - 2014 in review

As 2014 draws to a close, I thought it worthwhile to review the decisions and judgments of the European Court of Human Rights over the last 12 months in respect of complaints regarding sexual orientation discrimination, as well as to detail those complaints which were communicated and are pending consideration. 

May I take this opportunity to thank all readers of this blog for their interest. May I especially thank all those who have made a contribution to the blog or who have written to me about it. 

I wish you all a very happy new year!


Judgments 2014

In April, the Court issued an interesting and important judgment, in Mladina d.d. Ljubljana v Slovenia, which upholds the right, under Article 10 of the Convention, to express criticism of homophobia. The Court was considering a complaint brought by the private company, Mladina d.d. Ljubljana, who is the publisher of the weekly magazine 'Mladina'. I wrote that the Court's judgment is important because it establishes an effective right to robustly contest homophobic speech and gestures in public. 

In June, the Court continued its long-standing approach of rejecting complaints from homosexual applicants who face expulsion to countries that criminalise homosexual sexual acts. In M.E. v Sweden, a Libyan national currently living in Sweden complained to the Court about his threatened expulsion from Sweden to Libya where, he alleged, he would be at risk of persecution and ill-treatment because he is a homosexual. I outlined the judgment and, in particular, the Dissenting Opinion of Judge Power-Forde (Ireland). I also considered here why Judge De Gaetano feels it necessary to use scare quotes when writing about the marriage of a same-sex couple. In November, the Court announced that the complaint will be referred to the Grand Chamber for consideration at the applicant's request.

In July, the Court gave perhaps its most important judgment of the year in respect of sexual orientation discrimination. In Hämäläinen v Finland, the Grand Chamber, confirming an earlier Chamber judgment, held that Finland, in requiring a transexual person to transform an opposite-sex marriage into a same-sex civil partnership in order to obtain full recognition of their gender, did not violate any aspect of the Convention. The Court rejected the applicant’s complaint under Article 8 and, like the Chamber before it, did not consider the Article 12 complaint. It further rejected an Article 14 complaint. In doing so, the Court again asserted the view that the Convention does not impose an obligation on States to grant marriage rights to same-sex couples. I wrote about the judgment here, specifically about the Grand Chamber’s interpretation of Article 12 here, and about the issues of sexual orientation and religion here. The applicant’s lawyer, Constantin Cojocariu, provided a ‘preview’ of the judgment for the blog here. And Silvia Falcetta, of the University of Milan, wrote a guest post on the judgment for the blog here.

Decisions 2014

In April, the Court deemed the complaints in F.J. and E.B. v Austria inadmissible. I wrote that the decision was extremely problematic because it conflated the issue of discrimination based on sexual orientation arising from an unequal 'age of consent' with the treatment of persons suspected of having committed child sex offences.

In July, the Court struck H.Ç. v Turkey from its list. The complaint concerned the existence of law which had the effect of criminalising certain male homosexual acts between consenting adults in the Turkish Republic of Northern Cyprus (TRNC). After the complaint was lodged with the Court, the TRNC government announced that they planned to amend the law and these changes came into effect on 7 February 2014. As a result, the applicant in H.Ç. v Turkey withdrew his complaint and the Court decided to strike the application out of its list of cases. With the resolution of this case comes the end of nearly six decades of litigation in the Court relating to the blanket criminalisation of certain same-sex sexual acts in European states. None of the 47 Council of Europe states contracted to the Convention now operate a prohibition on same-sex sexual acts between consenting adults. 

In September, the Court declared the complaint in E.B. v Austria inadmissible. This follows the decision in F.J. and E.B. v Austria, detailed above, which involved the same applicant. I wrote about the case for the European Courts website here, arguing that the decision was appropriate but problematically reasoned. 


Cases communicated in 2014

Right at the end of last year the Court communicated two complaints against Italy which concern same-sex marriage. In Orlandi and Others v Italy the applicants, six same-sex couples who were all married whilst abroad (in Canada, the United States, and the Netherlands), complain about the refusal of the Italian domestic authorities to recognise their marriage. In Oliari and Others v Italy three same-sex couples complain that their inability to marry or enter into a recognized civil union constitutes discrimination on the grounds of sexual orientation. Italy does not provide any recognition of same-sex relationships, either by way of civil partnership or marriage.

Also at the end of last year the Court communicated the complaint in Aghdgomelashvili and Japaridze v Georgia in which the applicants, who work for the organization 'Inclusive Foundation', complain about homophobic treatment by police officers. The complaint focuses on a raid by the police of the office of 'Inclusive Foundation' in Tbilisi, in which the police used homophobic language (such as calling the applicants 'sick persons' and 'perverts') and subjected the applicants to humiliating treatment (such as strip searching them).

In January, the Court communicated the complaint in Sabalić v CroatiaThe complaint concerns the lack of an appropriate procedural response by domestic authorities following an act of violence by a private party motivated by antipathy towards homosexuality. The applicant suffered an attack in a bar by a man to whom she had disclosed her (homo)sexual orientation. She was hit and kicked all over her head and body causing her multiple contusions on the head and forehead, face, lips, neck, chest, palms of her hands and her knees. During the attack, the man shouted that all lesbians should be killed.  The attacker of the applicant was prosecuted for a minor offence and subject to a fine of 40 Euros.

In June, the Court communicated the complaint in Đorđević and Others v Serbia. The applicants complain that interference in the organization of, and refusals to permit, ‘gay pride’ events constitute a violation of Articles 10 and 11 of the Convention and, because this is based on sexual orientation, Article 14.

In September, the Court communicated the complaint in 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 Court, 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.

In October, the Court communicated the complaint in 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 Court, 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.



Tuesday, 2 December 2014

Court of Justice of the European Union judgment on 'gay asylum seekers' will have implication for the European Court of Human Rights

The Grand Chamber of the Court of Justice of the European Union has today issued its judgment in A, B, C v Staatssecretaris van Veiligheid en Justitie. The case concerns whether EU law imposes any limits on the methods by which a state seeks to verify the sexual orientation of applicants applying for asylum.

The judgment of the Court of Justice begins by stating that any declaration by an applicant for asylum about sexual orientation is merely the starting point in the process of assessment of the application and may require confirmation. However, it goes on to say that the methods used and the evidence submitted in support of applications for asylum must be consistent with EU law and, in particular, the fundamental rights guaranteed by the Charter of Fundamental Rights of the European Union, such as the right to respect for human dignity and the right to respect for private and family life.

In this respect, the Court of Justice sets out four key principles that should be observed by national authorities when assessing asylum claims:

  1. The inability of the applicant for asylum to answer questions about 'stereotyped notions associated with homosexuals' is not in itself a sufficient reason for concluding that the applicant lacks credibility.
  2. Questioning an applicant about sexual practices is contrary to fundamental rights and, in particular, to the right to respect of private and family life.
  3. Submitting applicants to possible ‘tests’ in order to demonstrate their homosexuality, or even the production by those applicants of evidence such as films of their intimate acts, would of its nature infringe human dignity.
  4. Having regard to the sensitive nature of questions relating to a person’s personal identity and, in particular, their sexuality, it cannot be concluded that a declared sexuality lacks credibility simply because, due to reticence in revealing an intimate aspects of life, the person did not declare his or her homosexuality at the outset

The relevance to the European Court of Human Rights

The fourth principle established by the Court of Justice, about the inappropriateness of drawing conclusions from a person's reticence in revealing details about their homosexuality, is highly relevant to recent jurisprudence in the European Court of Human Rights on asylum and sexual orientation.

Readers of this blog will remember that in June 2013 I wrote about the judgment in M.K.N. v Sweden in which the applicant, a native of Mosul in Northern Iraq, complained about a refusal for asylum by the Swedish Migration Board and Migration Court.

The applicant, a married man whose wife and two children were living in Syria, had claimed asylum in Sweden. The application was rejected and, on appeal, the applicant gave the following additional information to the authorities: 
'after his departure from Iraq, the Mujahedin had found out that he had had a homosexual relationship and that, as a consequence, his partner had been stoned to death. The Mujahedin had also been looking for the applicant in 2009 due to this relationship. He had not revealed this information earlier as he had not been aware that homosexual relationships were accepted in Sweden. Despite this relationship, his intention was to continue living with his wife'. 
The Swedish Migration Court rejected the applicant's appeal and, in respect of the information about the homosexual relationship, it stated that 'he had not given a reasonable explanation for his having made this claim so late in the proceedings'. 

The European Court of Human Rights rejected the applicant's complaint under Article 3 of the Convention, stating in respect of the homosexual relationship:
'the applicant did not make this claim until he appealed against the Migration Board’s negative decision on his asylum application, more than one year after his arrival in Sweden. Moreover, no mention of the relationship in question was made in the present proceedings before he replied to the Government’s observations, almost a year and a half after lodging the application to the Court. In this connection, it is noteworthy that, in that application, he stated that there were threats against him emanating from Al-Tawahid and Al-Jihad, but did not even mention the Mujahedin'.
The Court stated that it agreed with the Migration Court that the applicant did not give a reasonable explanation for the delay in making this claim in the domestic proceedings. 

The Court concluded: 
'Having regard to all the circumstances, including the similar delay in the present proceedings, the Court considers that the applicant’s claim concerning the homosexual relationship is not credible'.
In my original post on M.K.N. v Sweden, I expressed astonishment that the Court would so easily accept that the applicant's failure to disclose a homosexual relationship at the outset of his asylum application meant that he was fabricating a claim based on sexual orientation in order to persuade the Swedish authorities to grant him asylum.  

It seemed to me then, as it does now, that it is very easy to understand why a man from a country where there is well documented violence and persecution of homosexuals did not reveal a previous homosexual relationship to the authorities. 

Furthermore, given the social and cultural construction of (homo)sexuality in Europe as well as the Middle East, it seemed highly credible that a man married to a woman would attempt to keep a homosexual relationship secret from his wife with whom he wished to continue a relationship. 

I remain dismayed that the Swedish authorities and the Court were unable to accept that it is socially normative for many individuals in heterosexual relationships to also engage in homosexual sexual relationships and, furthermore, that it is socially normative for men and women to not want to disclose information about homosexual relationships for fear of persecution. 

I remain of the view that the Court's central failure in 
M.K.N. v Sweden was its inability to grasp the reality for many people who engage in homosexual sexual relationships - whether in the Middle East or elsewhere - which is that they are unable to publicly acknowledge this aspect of their lives.

The implications of the judgment of the Court of Justice of the European Union for the European Court of Human Rights


Today's judgment by the Court of Justice will be much discussed by those with a much better knowledge of EU law than me. 

However, from an ECHR point of view the judgment is highly significant and useful because it adopts a much more progressive view than that promulgated by the European Court of Human Rights.

Specifically, in respect of the fourth principle discussed above, the Court of Justice judgment implicitly contests the approach of the European Court of Human Rights in M.K.N. v Sweden. It rejects the idea that the failure to provide an account of, or evidence relating to, homosexuality at the outset of an asylum claim can be taken as evidence of falsehood.

If such a principle had been applied in M.K.N. v Sweden it could have underpinned a judgment that recognised why it is highly understandable that a man who had engaged in homosexual acts in a country where those engaging in such acts are persecuted and who subsequently wished to continue his marriage with his wife would be reluctant to disclose information regarding a previous homosexual relationship. 

In other words, if 
such a principle had been applied the Court would not have legitimated, as it did, the idea that the existence of a key 'symptom' of homophobia - the desire to conceal homosexual relationships or sexual acts - is a valid basis for rejecting an asylum claim.

In light of the judgment of the Court of Justice, the European Court of Human Rights should review its ideas about sexual orientation and sexual identity and, specifically, consider: 

  1. That many people who engage in a homosexual sexual relationship do not feel or wish to express a personal identity corresponding to that sexual relationship;
  2. The absence of a self-expressed homosexual identity may be the outcome of a number of factors that include, at least, an individual's subjective understanding of their sexuality not being in accord with the contemporary 'Western' conceptual framework governing sexual behaviours and identities and/or an individual's conscious rejection of a personal identity based on this framework;
  3. That the absence, adoption or rejection of a homosexual personal identity is significantly shaped by the broader cultural, legal and social relations in which individuals are situated and through which they become understandable to themselves and by others.

If the European Court of Human Rights begins to grapple with these points, it may be able to grasp the fact that there are no more 'real' homosexuals than there are 'fakes'. Rather, there are just individuals who sometimes have sexual relationships with other individuals of the same sex and, because such individuals are living in countries where these sexual relationships may result in persecution and death, they often attempt to maintain discretion and secrecy for reasons of personal safety and security. 

Saturday, 29 November 2014

New paper on 'The Role of the European Court of Human Rights in Adjudicating LGBT Claims'


Susan Gluck Mezey, of the Department of Political Science at Loyola University (Chicago), has made available the paper 'The Role of the European Court of Human Rights in Adjudicating LGBT Claims' which can be downloaded here:

http://paperroom.ipsa.org/papers/paper_30324.pdf