Thursday, 17 April 2014

Freedom to express criticism of homophobia - Mladina d.d. Ljubljana v Slovenia

The European Court of Human Rights has today 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'.

The facts

In June 2005, Mladina published an article about the behaviour of certain deputies of the Slovenian National Party during a parliamentary debate on legislation to permit the registration of same-sex partnerships. 

In the article, Mladina paid attention to one deputy, B.Z, who it stated 'spouted forth all the same stupidities as at the previous reading [of the legislation] [...] and touched on the objections against his use of words such as "faggots" and "lesbians"'. 

Mladina also described the behaviour of S.P. who made statements such as 'none of us would want to have a son or a daughter who would opt for this kind of marriage’ and made 'a coffeehouse imitation which was probably supposed to clearly illustrate some orthodox understanding of a stereotypically effeminate and mannered faggot'. Mladina stated this behaviour was 'the typical attitude of a cerebral bankrupt who is lucky to be living in a country with such a limited pool of human resources that a person of his characteristics can even end up in Parliament, when in a normal country worthy of any respect he could not even be a janitor in the average urban primary school'.

The Slovenian domestic courts

In response to the article, S.P. successfully took legal action against the publisher of Mladina in the domestic courts. 

S.P. argued that inter alia he had 'suffered severe mental distress due to the offensiveness of the article'.

The Ljubljana District Court, in partially upholding S.P.’s claim, stated that:

  • the use of the term 'cerebral bankrupt' had referred to S.P.'s 'personal characteristics and was therefore objectively offensive' and, as such, 'did not simply serve the purpose of imparting information to the public'; 
  • the gestures he had used to mimic the behaviour of a homosexual man were 'simply reminiscent of gestures made by actors to convey the idea of homosexuality', that this was not 'offensive to homosexuals', and was not 'aimed at promoting prejudice and intolerance against them'. 

The District Court ordered the publisher to pay damages.

Further domestic proceedings ensued, culminating in an unsuccessful complaint by the publisher to the Constitutional Court.

The European Court of Human Rights

The publisher complained that the decisions of the domestic courts had violated its right to the freedom of expression as provided in Article 10 of the Convention.

The Court decided that the decisions of the domestic courts amounted to an interference with the applicant's right to freedom of expression (this was not disputed by the applicant and the Government) and that the interference was prescribed by law.

In considering whether the interference was 'necessary in a democratic society', the Court applied its long-standing framework for determining whether the reasons adduced by the national authorities to justify the interference were 'relevant and sufficient' and whether the measure taken was 'proportionate to the legitimate aims pursued'.

The key issue for the Court was whether the reasons adduced by the domestic authorities were 'sufficient' for the purposes of satisfying the 'necessary in a democratic society' test. 

The Court held that the reasons given by the domestic courts could not be regarded as a sufficient justification for the interference with the applicant's right to freedom of expression for the following reasons:

  • describing S.P.’s conduct as that of a 'cerebral bankrupt' was extreme and could legitimately be considered offensive but the remark was a value judgment and had the character of a metaphor which, in the context of an intense debate in which opinions were expressed with little restraint, was an expression of strong disagreement, even contempt for S.P.’s position, rather than a factual assessment of his intellectual abilities; 
  • S.P., following the line of other members of his party, portrayed homosexuals as a generally undesirable sector of the population and, in order to reinforce his point, he imitated a homosexual man through the use of specific gestures which may be regarded as ridicule promoting negative stereotypes to which the publisher's remarks provided a counterpoint; 
  • the impugned statement, and the style used in the article, did not amount to a gratuitous personal attack on S.P. and, moreover, political invective often spills over into the personal sphere. 

The Court concluded that the domestic courts had not convincingly established that there was any pressing social need for placing the protection of S.P.’s reputation above the applicant's right to freedom of expression and the general interest in promoting freedom of expression where issues of public interest are concerned. 

Since the interference complained of was not 'necessary in a democratic society', the Court held that there had been a violation of Article 10 of the Convention.

Importance of the judgment

The Court's judgment is important because it establishes an effective right to robustly contest homophobic speech and gestures through public expression. 

Given that the type of homophobia addressed in the judgment is endemic in the political discourse of many Council of Europe states, it is vital that individuals and private companies are protected under Article 10 when they seek to publicly contest it. 

The judgment evolves Article 10 rights in respect of sexual orientation in a significant way by making clear that strongly formulated counter-remarks made to homophobic persons fall inside the protection offered by Article 10.

Whilst the Court's Article 10 jurisprudence relating to sexual orientation is very under-developed, this judgment can be read in relation to Vejdeland v Sweden, in which the Court placed homophobic hate speech outside the protection of Article 10. 

It remains for the Court to uphold an Article 10 complaint brought by a homosexual applicant in respect of interference with freedom of expression on the grounds of sexual orientation, but today's judgment is certainly a step in the right direction for protecting human rights and fundamental freedoms relating to sexual orientation.

Tuesday, 15 April 2014

Book launch and talk: Law, Religion and Homosexuality

I'm delighted that Terry Sanderson, President of the National Secular Society and long-time advocate of lesbian and gay legal equality, will join me and Robert Vanderbeck to launch our new book Law, Religion and Homosexuality.

The event is on Wednesday June 18th, at the Conway Hall in London, and everyone is welcome. 

Free wine and lots of discussion/debate:

Tuesday, 25 March 2014

New article on 'homosexual propaganda' laws in the Russian Federation

Maria Issaeva and Maria Kiskachi, both of Threefold Legal Advisors LLC (based in Moscow), have published the piece 'Immoral Truth vs. Untruthful Morals? Attempts to Render Rights and Freedoms Conditional Upon Sexual Orientation in Light of Russia's International Obligations'.

The authors state:

...this article must inevitably conclude that a strong case can be made that Russia’s prohibition on the ‘propaganda of non-traditional sexual relationships’ is incompatible with international law and that amendments concerning adoptive parents are potentially discriminatory in character....

...the legislative approach currently under adoption in Russia is [...] clearly aimed at the degradation of existing international standards in this respect – pluralism, broadmindedness and tolerance being among them.

The article can be downloaded here:

http://russianlawjournal.org/data/documents/Issaeva-LRG_1_2014.pdf


 

Friday, 14 March 2014

'Homosexuality and the European Court of Human Rights' published in paperback

I'm pleased to say that my book, Homosexuality and the European Court of Human Rights, has now been issued by Routledge in a revised and updated paperback edition.

The paperback differs from the previous hardback in two key ways:

First, it includes a new preface which gives an overview of the Court's jurisprudence relating to sexual orientation between early 2012 (when the book originally went to press) and January 2014.

Second, the chronological table of cases at the end of the book has been updated to January 2014 and, furthermore, I have revised its approach.

Details available here:

http://www.routledge.com/books/details/9780415632638/

Thursday, 13 March 2014

New 'sexual orientation' fact sheet published by the Court

The European Court of Human Rights has updated its sexual orientation fact sheet

Notable pending cases listed in the fact sheet are:

Article 3 focused complaints 

Aghdgomelashvili and Japaridize v Georgia (ill treatment by police)

Identoba and Others v Georgia (failure of authorities to protect individuals from ill-treatment)

M.E. v Sweden (deportation of married homosexual man to Libya)

Article 12 focused complaints 

Oliari and Others v Italy (same-sex couples unable to marry or access any other partnership recognition)

Orlandi and Others v Italy (same-sex couples unable to marry)

Article 14 focused complaints 

Bonnaud and Lecoq v France (refusal to grant parental authority to same-sex partner)

Hallier and Lucas v France (refusal to give same-sex partner of parent paternity leave)

Taddeucci and McCall v Italy (refusal of family permit to same-sex partner resulting in lack of right to residence)

Article 10 focused complaint

Bayev and Others v Russia (impact of 'homosexual propaganda' laws)


Article 11 focused complaint

Zhdanov and Rainbow House v Russia (refusal to register an organisation)


Monday, 24 February 2014

Sexual Orientation and the European Convention on Human Rights: Voices and Perspectives - full programme

The full programme for the "Sexual Orientation and the European Convention on Human Rights: Voices and Perspectives" event at the University of York, on Friday 16th May, is now available here:

https://drive.google.com/file/d/0ByFm9fY-KH05dUlEb194MkpPWFk/edit?usp=sharing

There are a small number of places remaining for this event so, if you would like to attend, please email me.





Saturday, 15 February 2014

Is the European Court of Human Rights behaving irresponsibly in relation to gay and lesbian human rights in Russia?

At a time of increased media attention on laws in the Russian Federation that ban either 'homosexual propaganda' (at a regional level) or propaganda of 'non-traditional sexual relations' (at a national level) to minors, it is worth pausing to consider what action the European Court of Human Rights has taken in respect of these legislative developments.

Although the Court recently communicated the complaint in Bayev v Russia, which contains linked complaints under Article 10 of the Convention about the existence of regional laws regulating 'homosexual propaganda', there has been no judgment in respect of this or any other related complaint. This is despite the application in Bayev being lodged with the Court four years ago, in 2009. 

Of course, all complaints to Strasbourg take a considerable time from application to judgment, but in the absence of the Court having ever issued a positive Article 10 judgment in respect of sexual orientation discrimination, and the increasingly hostile environment for sexual minorities in Russia and other European states, the Strasbourg organs could have ensured that a definitive judgment on this issue was given by now.

This is not to say the Council of Europe have not been dealing with the question of anti-gay law in Russia. The Council of Ministers, in their supervision of the execution of the judgment in Alekseyev v Russia, have made repeated statements about the laws. The Venice Commission issued a strongly worded opinion on the subject back in June 2013, the substance of which was supported in a Resolution by the Parliamentary Assembly of the Council of Europe. Secretary General Jagland has also expressed his concern about homosexual propaganda laws.

Whilst these activities at the Council of Europe are welcome, they are no substitute for a direct judgment from the Court which, if it found that the propaganda laws were in violation of Article 10 of the Convention, would bind the Russian government to undertake measures to address this. If the Court concluded that the mere existence of such laws violated the Convention right to freedom of expression, it would effectively require the Russian Federation to significantly modify if not repeal these laws. 

However, the judgment in Bayev v Russia could be years in the coming. Worse still, no complaint has been communicated about the federal law prohibiting propaganda of 'non-traditional sexual relations' and, because the Court does not make public a list of complaints that have been lodged, it is difficult to know if any complaint has been made. 

As the world looks on to the plight of LGBT people in Russia, and claims about a rising tide of violence are increasingly made, it seems essential that the Court, the highest authority on human rights in Europe, provides a definitive judgment at the earliest time on this central question: do laws that regulate forms of public expression about homosexuality violate the human right to freedom of expression?