Friday, 3 July 2015

No progress made again by the Committee of Ministers in Alekseyev v Russia

The Committee of Ministers of the Council of Europe have again considered the state of execution of the European Court of Human Rights' judgment in Alekseyev v Russia. The judgment concerns the repeated refusal by Moscow authorities to allow the applicant to hold a Gay Pride march/event.

The Committee of Ministers have considered the judgment many times before, each time in the context of a worsening situation for LGBT people in the Russian Federation. Indeed, in advance of this latest meeting, GayRussia wrote to the Committee of Ministers to inform them that Pride organisers had been imprisoned. 

The Committee of Ministers has overwhelming evidence that, as ILGA-Europe and Coming Out put it, 'not only has there been no serious attempt to implement the Alekseyev judgment, but violations similar to those condemned in the Alekseyev judgment continue unabated'. In sum 'the refusal by the competent authorities in the Russian Federation to authorise public events in support of the rights of LGBT persons has continued uninterrupted for the 10 years since the rejection of the first application to hold a pride march in Moscow in 2005'.

Meanwhile, the Committee of Ministers continues to take a very 'light touch' approach to the issue. Although the Deputies:
expressed serious concern [...] that the local authorities in the Russian Federation continue to reject most of the requests made to hold public events similar to those in the present judgment, including on the basis of the Federal Law prohibiting “propaganda of non-traditional sexual relations”, and therefore urged the authorities to take concrete measures to ensure that such requests are accepted unless there are well-grounded reasons justifying their rejection in compliance with Convention standards;
and 
invited the Russian authorities to provide further information on measures taken to sufficiently recognise and defend the exercise of the important right to assembly, in particular, to ensure that the mentioned Federal Law does not hinder the effective exercise of this right,
the language of the Committee of Ministers does not inspire confidence that they fully grasp, or are willing to tackle, what has been described as a 'state orchestrated campaign of stigmatisation' of LGBT people.  

The Russian authorities, in their latest communications to the Committee of Ministers, have continued to assert that '[a]ll citizens are equal before the law and the courts' and '[t]here are no laws in Russia that are against [...] LGBT persons'. The Russian authorities now repeatedly claim, as I argued in my article in the Russian Law Journal, that legislation designed to regulate 'propaganda of non-traditional sexual relations' does not target persons on the basis of their sexual orientation. 

Meanwhile, the Court has still not issued a judgment in Bayev and Others v Russia in which it has the opportunity to clearly articulate that the regulation of public expression on the grounds of sexual orientation is a violation of Article 10 of the Convention. 
 

Thursday, 25 June 2015

Isle of Man reforms its criminal law relating to homosexuality, but more reform still needed

I have previously written two articles about the existence of discriminatory sexual offences law in the Isle of Man, which continues to subject sexual acts committed between men to greater regulation than sexual acts committed between women or between men and women. I published the first article in Jurist in 2012, and the second was published on this blog in 2013. 

In both articles, I pointed out that Manx law maintained a total prohibition of buggery and gross indecency aboard merchant ships when these acts were committed between men. S.10(3) of the Sexual Offences Act 1992 stated that the provisions that partially decriminalized buggery and gross indecency 'in private' did not apply to acts 'committed on a Manx merchant ship by a man who is a member of the crew of that ship with a man who is a member of the crew of that ship or of another Manx merchant ship' ('merchant ship' means any ship registered on the Isle of Man that is habitually used for the purposes of carrying passengers or goods). Therefore, any consensual sexual act committed between adult men serving as crew on a Manx merchant would have constituted a criminal offence.

In light of the existence of ECHR jurisprudence, I argued that the Isle of Man needed to revise its sexual offences provision urgently. I pointed out that it needed to address "the rather ridiculous legislative situation that permits a same-sex couple to register a civil partnership but continues to subject male homosexual sex to heightened forms of regulation". 

The ban on male homosexual acts on merchant ships is repealed

It is very gratifying to see that the Isle of Man has finally repealed the provision relating to homosexual acts on merchant ships from the Sexual Offences Act 1992. During debate of the Bill that became the Terrorism and Other Crime (Financial Restrictions) Act 2014the Legislative Council of Tynwald (the Parliament of the Isle of Man) adopted an amendment that made provision to repeal the relevant sections in the 1992 Act. The House of Keys accepted the amendment and, in doing so, Hon. J P Watterson stated:
"When homosexual activity was decriminalised a number of years ago [1992], a regrettable oversight occurred when making consequential amendments, with the result that we have suffered and continue to suffer some reputational damage. The acceptance of this new clause will mean that homosexual activity on Manx merchant vessels is decriminalised". 
The claim that the blanket ban on male homosexual acts on merchant ships was a legislative "oversight" is interesting. When I spoke to officials on the Isle of Man in 2012 about the existence of this provision, they were certainly surprised. And members of the Legislative Council and House of Keys overwhelmingly supported the removal of the provisions during debates of the 2014 Act. However, Hansard shows that when the House of Keys debated this aspect of the Sexual Offences Bill on 31 March 1992 the proposal to continue the blanket ban on male homosexual acts onboard merchant ships was clear. Indeed, one member, Mr. Quinn, entered a reservation about the 'position in regard to people on merchant ships' and argued that, 'according to the legal advice' available, this position was 'contrary to the European Convention on Human Rights'. 

More law reform needed 

The reform relating to merchant ships is certainly good news. However, the Isle of Man still needs to take one more step to fully reform its criminal law. It needs to address the existence of S.9 Sexual Offences Act 1992 by virtue of which the 'unnatural offences' of 'buggery' and 'gross indecency' continue to be criminalised - offences which have been repealed in England and Wales, Scotland and Northern Ireland. 

S.9(1) of the 1992 Act which criminalises buggery is written in gender-neutral terms, but S.9(4) which criminalises gross indecency relates only to acts committed between a man with another man. Both buggery and gross indecency remain criminalized if they take place 'elsewhere than in private'. S.10(1) of the 1992 Act specifies that buggery and gross indecency shall not be treated as being in private if 'more than 2 persons are present' or are done in 'any place to which the public have or are permitted to have access, whether on payment or otherwise'.

Manx law therefore continues to single out particular sexual acts between consenting adults, and specifically male homosexual acts, for heightened legal regulation based on restrictions around 'privacy'. The European Court of Human Rights has held that subjecting homosexual acts to greater privacy restrictions is a violation of Convention rights. In A.D.T. v the United Kingdom, the Court upheld a complaint about the existence of a law similar to that found in the Isle of Man that criminalized male homosexual acts when more than two persons are present.  

If the Isle of Man wants to avoid further 'reputational damage' it should follow the lead of the UK and repeal the archaic offences of 'buggery' and 'gross indecency'. If it does not, it risks a complaint against it in the European Court of Human Rights - a complaint that would undoubtedly be successful and, therefore, embarrassing.  


Tuesday, 16 June 2015

Separate and unequal? Same-sex couples in Austria challenge "sexual apartheid"

The European Court of Human Rights has communicated the complaints in Hörmann and Moser v Austria and Dietz and Suttasom v Austria. The applicants are two same-sex couples who wish to formalise their relationships. According to Austrian law, the applicants are entitled to enter into a registered partnership but not entitle to marry.

The applicants wish to marry, but the basis of their complaint to the Court does not focus on this issue. Rather, their complaint relates to the fact that the current law in force in Austria requires marriage to be contracted by the Office for Matters of Personal Status, whereas a registered partnership must be contracted by the District Administrative Authority. The applicants argue that "in their view it amounted to sexual apartheid that registered partnerships could not be concluded before the same authority as civil marriages are".

The applicants complain under Article 14 read in conjunction with Article 8 of the Convention that they are discriminated on grounds of their sexual orientation, because registered partnerships are concluded before the District Administrative Authorities, while civil marriage is contracted before the Office for Matters of Personal Status.

The Court has communicated the following two questions to the parties:

1. Have the applicants suffered discrimination on the ground of their sexual orientation, contrary to Article 14 of the Convention read in conjunction with Article 8, because registered partnerships are concluded before the District Administrative Authorities, while civil marriage is contracted before the Office for Matters of Personal Status?

2. Have the applicants in the meantime concluded a registered partnership? If so, when and where?



Saturday, 13 June 2015

"Going to Strasbourg" oral history research project

I have made a website available for a new research project that I will be carrying out over the next year. The research project, "Going to Strasbourg", aims to collect oral history accounts of individuals in the UK who have taken complaints about sexual orientation discrimination to the European Court (and former Commission) of Human Rights.

The website can be found here:

http://goingtostrasbourg.com


Tuesday, 9 June 2015

The European Court of Human Rights says 'you' have the right to marry, but this clearly doesn't extend to same-sex couples

If you are someone who would like to marry a person of the same legal sex as yourself, and live in a Council of Europe state that does not permit this, you will be delighted to learn that the European Court of Human Rights has now said that 'You have the right to marry and to have a family'. This statement was made by the Court on a poster, displayed in its Press Room last Friday (which was photographed by Jens Theilen and Annelie Siemsen - for which, many thanks).

However, those who know the Court's jurisprudence on same-sex marriage may be surprised that it has issued this poster. This is because, the Court has been consistently clear that the 'right to marry' enshrined in Article 12 of the European Convention on Human Rights (which guarantees this right to 'men and women') does not extend to same-sex couples.  

Given the Court's clear position on same-sex marriage what, therefore, is the explanation for this poster? My first reaction to it - which was one of incredulity - was to think about who the author of the poster considered to be its audience: that is, who the author imagined to be the 'you' that the poster is addressing. I wondered whether the author had in mind only opposite-sex couples when formulating the text, since clearly the use of 'you' would be correct in this context? If so, sociologists would call this a 'heteronormative' poster, insofar as it presupposes that those standing in front of it are heterosexual. 

I shared this poster with a few colleagues and, given that they are a light-hearted bunch, they reacted by suggesting that the Court might issue a revised version with different wording, such as:

"Some of you have the right to marry..."

or

"You might have the right to marry..."

Whilst this is amusing, I must confess to being quite disturbed by the Court issuing a poster that contains this text. For the millions of people in Council of Europe states who passionately believe that same-sex couples should have the human right to marry, and who respectfully try to engage with the Court's on-going jurisprudence in this area, this poster is something of a 'kick in the teeth'. Reading the Court's judgments year after year which exclude same-sex couples from the right to marry is one thing, but trite posters which fail to even recognise the issue is another thing.

There are millions of people across Europe who are living in countries where they remain persecuted for desiring the basic human right to love. That right, crystallised in 1950 in the Convention's right to marry, is currently denied to them. The Court is currently not on their side. As such, the Court should not add insult to injury by issuing posters like this. 


Tuesday, 26 May 2015

Gay asylum complaint in A.T. v Sweden - AIRE Centre and others' submission to the European Court of Human Rights

The Aire Centre, along with the ICJ, Amnesty International, UKLGIG and ILGA-Europe, have published their joint intervention to the European Court of Human Rights in the case of A.T. v Sweden

The applicant in A.T. v Sweden 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.

One of the key arguments made by the interveners is that the Court should establish that 'the existence of laws criminalizing consensual same-sex sexual conduct discloses evidence of a real risk of Article 3 prohibited treatment' or, alternatively, establish 'that there is a high presumption that such laws engender such risk' (§ 18).

The Court has never held that the existence of laws criminalising homosexual acts amounts to a violation of Article 3. It has, of course, held several times that the existence of such laws violates Article 8, but this is of limited value to an asylum seeker contesting deportation from a Contracting State. This is because, as the Court has stated, if a person lived 'under a ban against homosexual adult consensual relations [this] would in Contracting States disclose a violation of Article 8' but '[o]n a purely pragmatic basis, it cannot be required that an expelling Contracting State only return an alien to a country which is in full and effective enforcement of all the rights and freedoms [such as Article 8] set out in the Convention' (F. v the United Kingdom).

However, Article 3 place stronger obligations on Contracting States. Unlike under Article 8, States have no margin of appreciation available to them, or scope for derogation, in terms of their obligation not to return an individual to a jurisdiction where they would be at real risk of ill-treatment amounting to a violation of Article 3. And, as the Grand Chamber held in Saadi v Italy, in cases such as this, 'the Court is [...] called upon to assess the situation in the receiving country in the light of the requirements of Article 3' and '[i]n so far as any liability under the Convention is or may be incurred, it is liability incurred by the Contracting State, by reason of its having taken action which has as a direct consequence the exposure of an individual to the risk of proscribed ill-treatment' (§ 126).

If the Court followed the interveners' recommendation and established that the existence of laws criminalizing consensual same-sex sexual conduct disclosed evidence of a real risk of Article 3 prohibited treatment, then a Contracting State would never be able to return a gay man or lesbian to a country that criminalised (at least in a blanket way) homosexual acts. This would be a major change in the Court's jurisprudence, given that it has never upheld a complaint by a homosexual asylum seeker alleging that deportation would result in discrimination based on sexual orientation. 

Some might argue that the interveners' recommended course of action is exactly what the Court should do because the mere existence of laws criminalising homosexual acts puts a gay man or lesbian at the constant risk of, depending on the context, "torture" or "inhuman" or "degrading" treatment (and/or punishment). 

However, the implications of the Court taking this step would be so significant - in terms of its impact on the immigration policies of Contracting States - that many will regard it as unlikely. 

One decisive factor, in this respect, could be the fact that the Court never held the existence of laws that criminalised consensual homosexual acts between adults in a Council of Europe state to be in violation of Article 3. It could be argued that, in light of the universal repeal and repudiation of such laws in all 47 Contracting States, the Court now has a total consensus on which to establish that the existence of such laws is in violation of Article 3. On the other hand, it could be said that if the Court never held that the existence of such laws in a Contracting States was in violation of Article 3, it is untenable that it should change its approach in respect of jurisdictions outside of the Council of Europe. 










Friday, 22 May 2015

‘Homosexual Propaganda’ Laws in the Russian Federation: Are They in Violation of the European Convention on Human Rights?

The Russian Law Journal has published my article "'Homosexual Propaganda' Laws in the Russian Federation: Are They in Violation of the European Convention on Human Rights?".

The issue also contains an interesting editorial by Chief Editor, Professor Dmitry Maleshin, about the challenges faced by discussing Russian law outside of its national jurisdiction.

Here is the abstract for my article:

This article examines recently enacted legislation in the Russian Federation designed  to regulate so-called ‘homosexual propaganda.’ Through an analysis of the extant jurisprudence of the European Court of Human Rights (Eur. Ct. H.R.) in respect of discrimination on the grounds of sexual orientation, the article considers the extent to which the existence and enforcement of ‘ homosexual propaganda’ laws can be said to violate rights and freedoms guaranteed by the European Convention on Human Rights (ECHR). The article demonstrates weaknesses in current Eur. Ct. H.R.’s jurisprudence – specifically in relation to Arts. 10, 11 and 14 of the ECHR – and argues that it requires significant evolution to better protect sexual minorities in Russia and elsewhere.

It can be found here: