Friday, 27 May 2016

European Court of Human Rights communicates complaint about inability of same-sex couples to marry in Russia

The European Court of Human Rights has communicated the case of Fedotova and Shipitko v Russia, which concerns complaints by three same-sex couples about their inability to marry in the Russian Federation.

All three couples had declared their intention to marry and applied on several occasions to local departments of the Register Office to have their marriage registered. The Register Office examined their requests and dismissed them with reference to Article 1 of the Russian Family Code, which states that the regulation of family relationships is based on “the principle of a voluntary marital union between a man and a woman”. In other words, because the couples did not consist of “a man and a woman”, their marriage applications could not be processed. All of the applicants unsuccessfully challenged the Register Office’s decisions in the domestic courts.

The Court has communicated the following questions to the parties:
1.Has there been a violation of the applicants’ right to respect for their private and family life, contrary to Article 8 of the Convention? 
In particular, were the applicants able to have access to a specific legal framework capable of providing them with official recognition of their unions comparable to that guaranteed by the State to different-sex couples? If that is not the case, in what specific ways are the applicants disadvantaged by the lack of any legal recognition of their relationship?

Should the applicants be afforded a possibility to have their relationship recognised by law? If not, what are the reasons preventing such recognition? Was the issue of legal recognition of same-sex couples widely debated in society? Would legal recognition of same-sex unions in any form impose an excessive burden on the State? The Government are asked to support their submissions by authoritative studies and statistics, if applicable.

2. Have the applicants suffered discrimination in the enjoyment of their Convention rights on the ground of their sexual orientation, contrary to Article 14 of the Convention read in conjunction with Article 8 of the Convention, in respect of their inability to enter into any type of civil union recognised by the State?
Some issues arising from the communication

No Article 12

It is interesting to note that the Court has not communicated the case under Article 12 of the Convention (right to marry). This is striking given that the applicants' complaints concern their inability to marry. It is unclear whether the omission of Article 12 from the communication is the choice of the applicants or the Court. Certainly, Ms. Fedotova and Ms. Shipitko invoked Article 12 in the domestic courts in their appeal against the decision to refuse their application to marry. However, in the Court's communication it states:
The applicants in substance complained under Article 8 of the Convention alone and under Article 14 of the Convention taken in conjunction with Article 8 of the Convention that they had been discriminated against on the grounds of their sexual orientation because they had no means of securing a legal basis for their relationship as it was impossible for them to enter into marriage. They also had no other possibility to gain legal recognition for their relationship.
It is unclear, therefore, whether the Court has omitted Article 12 from the complaint when determining its "substance", or whether the applicants themselves decided not to raise an Article 12 point. If it was the Court's decision then I would see this as further evidence that the Court regards Article 12, for all practical purposes, as inapplicable to same-sex couples (see a previous post for a broader discussion of this).

Article 8

The questions raised under Article 8 focus on whether the applicants should be given access to a "legal framework" that would provide "official recognition" of their unions "comparable" to that given to opposite-sex couples. The Court appears, therefore, to be asking whether the Russian Federation should provide same-sex couples with access to some form of "civil partnership" rather than whether they should be given access to marriage. This may seem politically sensible, given the apparent hostility in Russia toward both homosexuality and the European Court of Human Rights. However, the substance of the applicants' complaints concerns the Russian authorities' refusal to register their marriage. It is open to question, therefore, whether the Court should seemingly exclude a direct question about marriage and focus solely on the issue of a "comparable" legal framework.

The case law 
most relevant to the questions raised under Article 8 can be found in the Court's judgment in Oliari and Others v Italy. In Oliari the Court held that the Italian government had "failed to fulfil their positive obligation to ensure that the applicants [same-sex couples] have available a specific legal framework providing for the recognition and protection of their same-sex unions" (§ 185). The crucial question arising from this judgment is whether the Court will impose this positive obligation on the Russian Federation. The answer is not straightforward because the judgment in Oliari was crafted in such a way, as Judges Mahoney, Tsotsoria and Vehabović pointed out, to "limit [the] finding of the existence of a positive obligation to Italy and to ground [this in] a combination of factors not necessarily found in other Contracting States". It remains to be seen whether, as those three judges pointed out, the "limitation of a positive obligation under the Convention to local conditions is conceptually possible". If such a limitation is deemed not to be possible, then the same positive obligation found in Oliari will be imposed on the Russian Federation. The result will be that the State is under an obligation to provide same-sex couples with access to a legal framework (not marriage) that gives legal recognition to their relationships. 

Article 14

The question regarding discrimination would appear to be central to this complaint. However, in Oliari the Court would not consider the applicants' complaints under Article 14 taken in conjunction with Article 8. Arguably, if the Court had found a violation of Article 14 in Oliari this would have more definitively established that Contracting States that do not provide same-sex couples with access to any legal recognition of their relationships are discriminating against them on the grounds of sexual orientation. Had this been the case, the current complaint against the Russian Federation would have almost certainly succeeded. However, because the Court avoided addressing the Article 14 complaints in Oliari, it remains to be seen whether it will consider the lack of legal recognition of same-sex relationships in the Russian Federation to constitute "discrimination" within the terms of the Convention.

General importance of the case

There is no question that should the Court eventually uphold the complaints in this case, that this would be a watershed moment for the Convention system. A judgment in favour of the applicants would no doubt be widely condemned in Russia and would have little chance of being executed (particularly in light of legal changes relating to the status of the Court's judgments). If the Court effectively required Russia to provide same-sex couples with access to civil unions then this would probably rank alongside the most contentious judgments issued by the Court, such as the "prisoner voting" judgment against the UK. However, the Court remains uniquely placed to deliver a judgment recognising that in Russia "same-sex couples are just as capable as different-sex couples of entering into stable, committed relationships, and that they are in a relevantly similar situation to a different-sex couple as regards their need for legal recognition and protection of their relationship" (Oliari, § 165). Leaving aside the issue of compliance, such a judgement would send the significant and important message to same-sex couples in the Russian Federation that legal protection of their intimate relationships is their human right.



Friday, 13 May 2016

PhD thesis: "Relational Subjects: Family relations, law and gender in the European Court of Human Rights"

I am very pleased to today be acting as the "opponent" of Linda Hart's PhD thesis "Relational Subjects: Family relations, law and gender in the European Court of Human Rights" at the University of Helsinki.

The thesis is now available online and here is the abstract:
This study is a sociological analysis of the establishment and recognition of family relations in the case law of the European Court of Human Rights. How are close personal relations between adult couples and children and their parents recognised in the case law of the European Convention on Human Rights (ECHR)? What kinds of combinations of biological, legal, social and gendered personal relations are regarded as family life in legal disputes between individual applicants and Member States of the Council of Europe? Following Nicola Lacey, the analysis develops a notion of relational subjects framed by perspectives from feminist legal theory, relational sociology and contemporary debates on the law and politics of family formation. It also offers a sociological reading of relevant ECHR case law. Relevant judgements from 1979-2014 act as primary data, supported by relevant inadmissibility decisions and reports from 1960 onwards (90 cases in total). 
In the data, a historical shift from emphasising status (married/unmarried, male/female) towards identity (sexual orientation, gender identity, genetic origins, genealogy) in recent case law may be identified. The notion of individual rights holders is examined from a relational perspective inspired by sociological and anthropological theory and gender studies in law, emphasising the importance of life-sustaining relations of care and dependency in the spirit of feminist relational (legal and political) theory that do not always follow preconceived structures of kinship recognition. Furthermore, it is enquired whether relations between legal subjects are more fruitfully viewed as transactional or transcendental from the point of view of two differing academic schools in the field of relational sociology, one among many other general theories on the constitution of society. 
It is argued that a process of divergence between alliance (marriage, civil unions, cohabitation) and filiation (legally recognised parent-child relations) has been intensified with the emergence of same-sex marriage and civil unions in the European legal arena in recent years. Politically and legally, alliance is simpler to transform into a gender-neutral legal relation than filiation. Both gender and physical sex, as social and biologico-legal dimensions of the dichotomy of masculine/feminine, provide critical perspectives to the establishment of relations of filiation. It is argued that from a human rights perspective, a gender-sensitive approach is required in relation to questions of corporeal maternity and paternity, as complex issues such as access to knowledge of one's genetic origins and the inalienability of the human body in processes of assisted reproduction crop up in many contexts of which ECHR case law is just one arena.

Thursday, 12 May 2016

European Court of Human Rights once again rejects a complaint by a gay asylum seeker

The European Court of Human Rights has declared the complaint in A.N. v France inadmissible. This continues the Court's established approach of rejecting complaints by gay men and lesbians about Council of Europe states that seek to return them to states outside of Europe that criminalise homosexual acts. 

The applicant, A.N., is a Senegalese citizen born in 1983 who claimed asylum in France after he fled Senegal because of persecution based on his (homo)sexual orientation. He provided the French domestic authorities with evidence that he had been the subject of violence (consisting of, inter alia, a medical certificate that attested to the presence of several scars on his body, and the account of two witnesses confirming that these had resulted from an assault because of his sexual orientation). 

When the French authorities rejected the applicant's asylum application - which the French government stated was based on unverifiable, contradictory and implausible claims - the applicant complained to the Court that if returned to Senegal he would be subjected to ill-treatment in violation of Article 3. Homosexual acts are illegal in Senegal. 

The International Commission of Jurists submitted a very strong third party intervention to the Court last June, urging the Court 
to find that the existence of laws criminalizing consensual same-sex sexual conduct discloses evidence of a real risk of Article 3 prohibited treatment, thus triggering non-refoulement obligations under that provision of the Convention. In the alternative, at the very least, the Court should find that there is a high presumption that such laws engender such risk and thereby impose the burden on the State to rebut that presumption by proving conclusively the absence of such risk.
The Court's response, in summary, was that, although homosexual acts are prohibited by criminal law in Senegal, this law is not systematically enforced and, furthermore, the applicant had not adduced sufficient credible evidence to show that he would be at risk of treatment contrary to Article 3 of the Convention if returned to Senegal. 

The Court therefore declared the application inadmissible (manifestly ill founded). 

A.N. v France can now be added to the list of cases - which I detailed here - in which a gay asylum seeker has failed to gain any protection under the European Convention on Human Rights.

Friday, 29 April 2016

And once again... The European Court of Human rights communicates a complaint against Russia

Further to the two cases that the European Court of Human Rights communicated in January, a further case has been communicated against the Russian Federation concerning sexual orientation discrimination. 

The communicated case, Nikolay Alekseyev and Movement for Marriage Equality v Russia and Nikolay Alekseyev and Others v Russia, concerns two applications and sets of complaints. Both relate to the refusal of Russian authorities to register LGBT organisations.

The first complaint

The first complaint concerns the refusal of the Moscow department of the Federal Registration Service of the Ministry of Justice to register the nonprofit organisation "Movement for Marriage Equality" which was founded to pursue the aims of "defending human rights in the sphere of marriage relations, of combatting discrimination on the grounds of sexual orientation and gender identity and of promoting equality for gays, lesbians, bisexuals and transsexuals, in particular through legalisation for same-sex marriage". 

The reason given for the refusal was that the aims of the organisation were "incompatible with Russian law". The Gagarinskiy District Court concurred, stating that the organisation pursued aims that were:
incompatible with basic morality as it aims to promote legalisation of same-sex marriage and to increase the number of citizens belonging to sexual minorities, thereby undermining the conceptions of good and evil, of sin and virtue established in society. If these aims are attained it may trigger a public reaction and result in a decrease in the birth rate.
The applicants, Mr. Alekseyev and the Movement for Marriage Equality, complain under Articles 10 and 11 of the Convention, taken alone and in conjunction with Article 14 of the Convention, about the refusal to register the Movement for Marriage Equality and of discrimination on grounds of sexual orientation. They argue, in particular, that the refusal to register the organisation was based on the Russian authorities’ conviction that "homosexuality was immoral and a sin and that associations defending the rights of homosexuals should not be therefore allowed to exist".

The second complaint

The second complaint concerns the refusal of the Krasnodar department of the Federal Registration Service of the Ministry of Justice to register the "Sochi Pride House" which was created with the aims of "developing sport activities for gays, lesbians, bisexuals and transsexuals, of combating homophobia in professional sports, of creating positive attitudes towards LGBT sportspeople, and of providing a forum for the latter during the Sochi Olympic Games". 

The reason for the refusal was that the aims of the Pride House were "incompatible with Russian law". The Pervomayskiy District concurred, stating that:
The aims of combating homophobia and creating positive attitudes towards LGBT sportspeople are incompatible with basic morality as they may lead to increasing the number of citizens belonging to sexual minorities, thereby undermining the conceptions of good and evil, of sin and virtue established in society ... 
The court does not see any reason to order that the [Sochi Pride House be registered] because its constitutional documents do not comply with the requirements of Russian law and its aims are incompatible with basic morality and the State policy of protecting the family, motherhood and childhood. Its activities amount to propaganda of a non-traditional sexual orientation, which may undermine national security, cause social and religious hatred and enmity and undermine the sovereignty and territorial integrity of the Russian Federation by decreasing its population. They are therefore extremist in nature.
An appeal to that court was deemed to have been submitted out of time and was rejected. An appeal against this decision was rejected by the Krasnodar Regional Court.

The applicants, Mr. Alekseyev, Mr. Naumchik, Mr. Nepomnyashchiy, and the Sochi Pride House, complain under Article 11 of the Convention, taken alone and in conjunction with Article 14 of the Convention, about the refusal to register the Sochi Pride House and of discrimination on grounds of sexual orientation. They argue, in particular, that the refusal to register the Sochi Pride House was based on the Russian authorities’ conviction that homosexuality was immoral and a sin and that associations defending the rights of homosexuals should not be therefore allowed to exist. The applicants also complain, under Article 6 of the Convention, that a refusal to examine their appeal on the merits breached their right of access to a court.

Questions to the Parties

The Court has asked the Parties the following questions:
  1. Did the refusals to register the applicant organisations interfere with the applicants’ rights under Article 11 of the Convention? Was the interference prescribed by law? Was it “necessary in a democratic society” within the meaning of Article 11 § 2 of the Convention?
  2. Can the applicant organisations claim to be victims of the alleged discrimination on account of sexual orientation, contrary to Article 14 of the Convention, taken together with Article 11?
  3. Did the applicants suffer discrimination on account of sexual orientation, contrary to Article 14 of the Convention read in conjunction with Article 11?
  4. As regards the second application, given that the applicants’ appeal against the judgment of 20 February 2012 was not examined on the merits, has the applicants’ “right of access to a court” guaranteed by Article 6 § 1 been respected?


Monday, 25 April 2016

Tuesday, 19 April 2016

Failure of police to take into account discriminatory motives when investigating a homophobic attack amounts to a violation of ECHR - M.C. and A.C. v Romania

The Fourth Section of the European Court of Human Rights has issued its judgment in M.C. and A.C. v Romania. The judgment is significant in consolidating the Court's recently developed jurisprudence under Article 3 of the European Convention on Human Rights in respect of hate crimes committed against individuals because of sexual orientation (for a discussion see my earlier post on Identoba and Others v Georgia).

The facts

In June 2006 two people, M.C. and A.C., participated in the annual gay march in Bucharest, Romania. At the end of the march, they and four other participants left the area using the routes and means of transport recommended by the authorities. As also recommended, they wore no distinctive clothing or badges that would identify them as having participated in the march. After boarding a metro train, they were attacked by a group of six young men and a woman wearing hooded sweatshirts. The attackers approached them and started punching them and kicking their heads and faces. They also swung from the metal bars above their heads, kicking their victims. During the attack they kept on shouting: “You poofs go to the Netherlands!” They were pushed into a corner of the carriage. One of them tried to protect the others with his body, but A.C. remained exposed and suffered several blows. The attack lasted for about two minutes. On their way out of the carriage, the attackers punched M.C. again in the face.

The victims went to a Bucharest police station and filed a criminal complaint against the attackers and stated that the assault was based on their sexual orientation. Due to a reorganisation within the police force, the case file was moved from one police station to another, and on 4 April 2007 it was registered at the Metro Police Station. On 10 June 2011 the police stated their view that the investigation should come to an end and asked the prosecutor’s office not to institute criminal proceedings in the case. In response to a request from M.C. and A.C. for information, the Metro Police informed them that their intention was to not institute a criminal prosecution as the alleged crimes had become statute-barred. The police explained that the investigation had been rendered more difficult by the fact that the file had not arrived at the Metro Police office until a year after the events. Moreover, all the actions undertaken by police in order to identify the alleged culprits had failed. The prosecutor’s office endorsed the police proposal and decided to terminate the investigation. The prosecutor-in-chief dismissed an objection to this by M.C. and A.C. The District Court also dismissed their complaint. 

The complaint to the ECtHR

M.C. and A.C. complained under Articles 3, 6, 8 and 14 of the Convention and under Article 1 of Protocol No. 12 to the Convention about the failure to investigate adequately their criminal complaints concerning acts of violence motivated by hatred against homosexuals, and more generally about the lack of adequate legislative and other measures to combat hate crimes directed against the LGBTI minority. They further complained that, when conducting the investigation, the authorities did not take into account the fact that the offences against them were motivated by their sexual orientation. They complained, therefore, that the authorities failed to meet the procedural obligations enshrined in the Articles of the Convention that they relied on.

The Court's judgment states that "when communicating these complaints, it considered that they would be more appropriately examined under Articles 3, 8 and 14 of the Convention and 1 of Protocol No. 12 to the Convention (which Protocol became applicable as regards Romania on 1 November 2006)". I find this confusing as when the Court communicated the complaint - which I wrote about back in 2013 - it issued questions to the parties that addressed Articles 3, 8, 11 and 13 of the Convention (taken alone and in conjunction with Article 14 of the Convention) and Article 1 of Protocol No. 12 to the Convention. 

Articles 3 + 14

The focus of the judgment is on the complaints raised under Article 3 taken in conjunction with Article 14. The Court concluded that the treatment to which M.C. and A.C. were subjected, which it said was "directed at their identity" (§ 119), must have aroused in them feelings of fear, anguish and insecurity that was not compatible with respect for their human dignity and reached the requisite threshold of severity to fall within the ambit of Article 3 taken in conjunction with Article 14 of the Convention.

In examining the way the domestic authorities had responded to the treatment of M.C. and A.C. the Court concluded that the investigations into the allegations of ill-treatment were ineffective as they lasted too long, were marred by serious shortcomings, and failed to take into account possible discriminatory motives. The Court was unanimous that there had been a violation of Article 3 (procedural limb) of the Convention read together with Article 14 of the Convention.

In reaching that decision, the Court stated:
the authorities did not take reasonable steps with the aim of examining the role played by possible homophobic motives behind the attack. The necessity of conducting a meaningful inquiry into the possibility of discrimination motivating the attack was indispensable given the hostility against the LGBTI community in the respondent State [...] and in the light of the applicants’ submissions that hate speech, that was clearly homophobic, had been uttered by the assailants during the incident. The authorities should have done so ‒ despite the fact that incitement to hate speech was not punishable at the time when the incidents occurred [...] ‒ as the crimes could have been assigned a legal classification that would have allowed the proper administration of justice. The Court considers that without such a rigorous approach from the law‑enforcement authorities, prejudice-motivated crimes would inevitably be treated on an equal footing with cases involving no such overtones, and the resultant indifference would be tantamount to official acquiescence to, or even connivance with, hate crimes [...] Moreover, without a meaningful investigation, it would be difficult for the respondent State to implement measures aimed at improving the policing of similar peaceful demonstrations in the future, thus undermining public confidence in the State’s anti-discrimination policy [...] (§ 124).
This is very significant because it amounts to saying that law enforcement officials, even in jurisdictions where there is an absence of legislation explicitly criminalising hatred on the grounds of sexual orientation, have a duty to investigate the homophobic motivation of any attack upon a person because to not do so is to connive with the attackers. 

Other complaints 


Having reached the conclusion that there had been a procedural violation of Article 3, the Court further concluded that it need not examine the remainder of the complaint raised under Articles 3 and 14 - namely that the police intentionally protracted the investigations for homophobic motives - and the allegations made under Articles 8 and 1 of Protocol No. 12. Moreover, the Court concluded that complaints under Articles 11, 13 and 14 were admissible but that it had examined the main legal questions and that there was no need to give a separate ruling on the merits of the complaints under these other Articles. 

Judge Kūris (Lithuania) dissented from this view, stating:
I regret to observe that overly laconic reasons for the rejection of “remainders of complaints” have become a long‑standing practice of the Court, not only in cases where the need for such rejection is self-evident but also in cases where it would merit more explicit consideration. I believe that the present case clearly belongs to the latter category.
I agree with Judge Kūris in principle, although I am not sure what examining the merits under the other Articles would have added to existing jurisprudence. The most important other Articles in this case are, to my mind, Articles 8 and 11 taken in conjunction with Article 14 and the Court has a well established body of jurisprudence relating to sexual orientation discrimination under those Articles. In principle, had the Court found a violation of Article 11 + 14 this would have added to its jurisprudence relating to sexual minorities'  freedom of assembly but, in my view, the finding of a violation of Article 3 + 14 is more important in sending the clear message to Contracting States that if they do not adequately address violence based on sexual orientation this will amount to a violation of an individual's absolute right not to be subject to inhuman or degrading treatment. As such, I find it difficult to complain that the Court concentrated on the procedural aspect of Article 3 which was, after all, the essence of M.C. and A.C.'s complaint (although, as Judge Kūris notes, if other violations had been found this would have had a bearing on the amount of compensation for non-pecuniary damage awarded to M.C. and A.C.).

Sunday, 3 April 2016

Sousa Goucha v Portugal - a homophobic joke does not violate the ECHR

Imagine you are a well-known male television host and currently host of a morning talk show. Imagine you have worked in broadcast media for almost forty years. Imagine that, eight years ago, you publicly declared you were gay and approximately one year after that, on a late night television talk show, there was a satirical quiz question which asked "who is the best female TV host?" and the correct answer was your name. Imagine you decided to lodge a criminal complaint for defamation and insult against the State-owned television company that broadcast that show, the production company, the television presenter and the directors of programming and content. Imagine that your complaint was that the show had damaged your reputation and dignity by including your name in the list of possible answers to the question "who is the best female TV host?" Imagine if the domestic courts dismissed your complaint on the grounds that you are a public figure and so must be used to having your characteristics captured by comedians in order to promote humour and it was public knowledge that your characteristics reflect behaviour that is attributed to the female gender, such as the way you express yourself by wearing colourful clothes. Imagine that you appealed on the grounds that you were only included in the joke because of your sexual orientation but, again, the domestic courts stated that the joke was in a playful and irreverent context and in the normal style previously adopted by the television show and, even though people might consider it as being in bad taste, it did not reach the threshold required by law for the protection of honour and reputation. Imagine that you then went to the European Court of Human Rights to complain that you have been discriminated against by the domestic courts because of your sexual orientation...

This was the situation facing the Court in Sousa Goucha v Portugal, which I first wrote about back in 2014 when the case was communicated. The judgment by the Fourth Section of the Court, which was issued on 22 March 2016, is interesting for a number of reasons.

First, in considering whether Article 8 of the Convention was applicable in the context of the complaint, the Court "reiterates that sexual orientation is a profound part of a person’s identity and that gender and sexual orientation are two distinctive and intimate characteristics" (§ 27). This is one of those statements by the Court that, although seeming to "reiterate" previous case law, actually amounts to a usefully new conceptualisation of sexual orientation as a "profound" aspect of "identity". However, the statement that gender and sexual orientation are "distinctive" can be regarded as somewhat sociologically naive given the decades of debate about them being entirely interdependent. 

Second, and relatedly, the Court stated that "[a]ny confusion between the two [sexual orientation and gender identity] will therefore constitute an attack on one’s reputation capable of attaining a sufficient level of seriousness for touching upon such an intimate characteristic of a person" (§ 27). This is an astonishingly far-reaching statement. The idea that "any confusion" can be seen to "constitute an attack" seems an amazing statement in the context of European societies where expressions of "confusion" over the interrelationship between gender identity and sexual orientation - especially when these take non-normative forms - appears to be endemic. In this respect, the Court might worry about its own "confusion" in this area. For instance, in Hämäläinen v Finland three dissenting judges criticised the majority for failing to adequately distinguish between same-sex transgender partners and homosexual partners. Could this confusion constitute an attack? 

Third, in rejecting the applicant's complaint under Article 8, the Court advanced a classic "Handyside" argument, stating that:
the domestic courts did convincingly establish the need for placing the protection of the defendants’ freedom of expression above the applicant’s right to protection of reputation ... in particular, ... they took into account the defendants’ lack of intent to attack the applicant’s reputation and assessed the way in which a reasonable spectator of the comedy show in question would have perceived the impugned joke – rather than just considering what the applicant felt or thought towards the joke. A limitation on freedom of expression for the sake of the applicant’s reputation would therefore have been disproportionate under Article 10 of the Convention (§ 55).
In other words, the Court deferred to the expertise of the domestic authorities to strike a fair balance and stated that there was "no reason to substitute its view for that of the domestic courts" (§ 56). This seems reasonable enough since the essence of the complaint concerned the entire social context in which the programme was produced and broadcast. However, the Court could have added its own consideration of the social context in question in order to underpin its argument that there was "no reason" to substitute the domestic court's view with its own. As dissenting members of the European Commission of Human Rights said in the Handyside case: domestic courts provide only one interpretation of the relations of a society and, therefore, the Convention organs cannot rely entirely on their interpretation. 

Fourth, in dismissing the applicant's complaint under Article 14 taken in conjunction with Article 8 the Court stated that 
there is nothing to suggest that the Portuguese authorities would have arrived at different decisions had the applicant not been homosexual ... The reason for refusing to prosecute seems rather to have been the weight given to freedom of expression in the circumstances of the case and the lack of intention to attack the applicant’s honour. Consequently, in the absence of any firm evidence, it is not possible to speculate whether the applicant’s sexual orientation had any bearing on the domestic courts’ decisions (§ 65).
Again, that seems reasonable on the whole but what appears to be very unconvincing is the Court's side-stepping of the fact that the domestic courts did refer to the applicant's sexual orientation in a particular way: they had noted that the applicant dressed in a “colourful way” and hosted television shows which were generally watched by women. The Court was persuaded by the Government’s argument that these statements were “debatable” and “could have been avoided”, but did not have discriminatory intent (§ 66). The Court could have explained why the statements of the domestic courts did not amount to discrimination under the Convention. 

Hugh Tomlinson describes the judgment in Sousa Goucha v Portugal as "an unsurprising result by an unsatisfactory route". I agree. It is difficult to see how a (very bad) homophobic joke, in the context it was made, could amount to a violation of any aspect of the Convention. But given the broader contexts of the European societies in which such jokes are made - where they will often be the manifestations of the "drip drip drip" of everyday homophobia - the Court should have been more careful in its analysis and reasoning. It should not, in my view, have simply defaulted to the reasoning of the domestic authorities but should have offered its own reasoning as to why this joke - but perhaps not other forms of speech - did not violate the Convention.