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:


Tuesday, 18 November 2014

Grand Chamber to reconsider complaint by gay asylum seeker about threatened expulsion to Libya

The European Court of Human Rights has announced that the complaint in M.E. v Sweden will be referred to the Grand Chamber for consideration at the applicant's request.
The complaint, which I previously covered in detail here, concerns a Libyan national currently living in Sweden who alleges that his expulsion from Sweden to Libya would put him at risk of persecution and ill-treatment because he is a homosexual.

The applicant argues that expelling him to Libya would violate his rights under Article 3 of the Convention because as a homosexual he would be at risk of ill-treatment. He further argues that returning him to Libya and separating him from his (male) spouse would violate his right to respect for family life under Article 8 of the Convention.

The complaint was previously dealt with by a Chamber of the Fifth Section of the Court who unanimously declared the Article 8 complaint inadmissible and held by six votes to one that the expulsion of the applicant to Libya would not give rise to a violation of Article 3 of the Convention.

At its meeting on Monday 17 November 2014, the Grand Chamber panel of five judges decided to refer the complaint to the Grand Chamber and a future hearing will be scheduled.

Thursday, 13 November 2014

Announcement by Rechtskomitee LAMBDA (Austria's LGBT-rights organization) of future litigation in Strasbourg

Rechtskomitee LAMBDA (RKL), Austria´s LGBT-rights organization, have today announded that they will make a complaint to the European Court of Human Rights about the distinction created between opposite-sex married couples and same-sex couples in registered partnerships in respect of surnames.

The text of the announcement is as follows:

Second Name vs Family Name
Registered Partnership: Pink Triangle of Austria´s Law of Names Goes to Strasbourg

The Austrian Supreme Administrative Court just has decided not (!) to end the labelling of same-gender couples by a special category of names. Rechtskomitee LAMBDA (RKL), Austria´s LGBT-rights organization, now takes the case to the European Court of Human Rights.

2010 Austria introduced registered partnership but combined this progress for same-gender couples with extraordinary maliciousness. Who enters registered partnership, the Registered Partnership Bill established, loses his family name and receives a second name instead. “Second names” (“Nachname”) are a new name category. It has been introduced solely for persons in a registered, thus same-gender, partnership. A second name therefore labels a person as homosexual. Second names thus work as the Pink Triangle of Austria´s law of names.

The last time before when a particular social group had been labelled with a special category of names was by the "Second Decree on the Implementation of the Act on the Change of Family Names and First Names" of the year 1939. This decree had ordered the labelling of Jews by the obligatory first names Israel and Sara …

Constitutional Court not interested

Christina Bauer had registered her partnership with Daniela Bauer in Germany. Daniela Bauer, as a German citizen still has a family name, as her name is determined by German law. Christina Bauer is an Austrian citizen and therefore applied to the civil registry office to establish that she still has a family name. The office rejected her application and she turned to the high courts.

The Constitutional Court declined to hear the case (VfGH 23.06.2010, B 582/10).

And the Administrative Supreme Court declared the application inadmissible on the ground that she should have used another remedy (to get a decision on whether she still has a family name), namely to ask the civil registry to issue a partnership-certificate displaying her name as a family name instead of a second name (VwGH 29.11.2010, 2010/17/0080).

Christina Bauer did as the Administrative Supreme Court told her and applied to the City of Vienna to issue such a partnership-certificate. The magistrate refused on the basis that she already had a German partnership-certificate. The Vienna governor dismissed the appeal, stressed that Miss Bauer had lost her family name due to the registration of her partnership and denied that this violated her human rights.

Supreme Administrative Court fools the applicant

Christina Bauer again turned to the high courts. The Constitutional Court again declined to hear the case (VfGH 26.11.2012, B 1253/11). And the Administrative Supreme Court – despite its prior judgment (see above) – now ruled that Miss Bauer cannot claim an Austrian partnership-certificate (VwGH 23.09.2014, 2012/01/0005). Its judgment of 2010 to the opposite the court declared irrelevant. The court stressed that it changed its mind …

„This is clear denial of justice. Same-gender couples not just get labelled by a special name category but the courts even refuse to issue a decision on the lawfulness of this labelling“, says RKL-president and counsel of applicant Dr. Helmut Graupner, „But the fight is not over yet. We are taking the case to the European Court of Human Rights“.

Wednesday, 5 November 2014

Turning the European Court of Human Rights into a folk devil: the UK Conservative Party and human rights

I have written a piece for the periodical Discover Society which I hope makes a modest contribution to the on-going debate in the UK about the value of the European Convention on Human Rights and the European Court of Human Rights.


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!