Tuesday, 30 April 2013

H. v Finland - Grand Chamber referral accepted

The European Court of Human Rights has today announced that the applicant's request for referral to the Grand Chamber in H. v Finland has been accepted. 

This is significant, since the case concerns an issue relevant to both transgender and sexual orientation rights in respect of marriage. 

The applicant, who underwent male-to-female gender reassignment surgery in 2009, complained about the existence of Finnish law that required her to transform her marriage into a civil partnership in order to obtain a new identity number that would indicate her female gender in her official documents. 

In its Chamber judgment, the Fourth Section of the Court held that the requirement that the applicant effectively divorce her wife did not constitute a violation of Article 8 of the Convention, nor a violation of Article 14 taken in conjunction with Article 8, and decided that there was no need to examine the case under Article 12.

If the Grand Chamber reversed the Chamber judgment and found a violation of either Articles 8 or 12 (with or without Article 14) this would be the most significant judgment it has reached so far in respect of same-sex marriage. 

Although the applicant in H. v Finland has been clear to distance the complaint from issues relating to homosexuality and same-sex marriage (a line of argument which will undoubtedly be a source of contention among LGBT human rights activists if it is again pursued in the Grand Chamber hearing) any favourable judgment would have wide implication for same-sex couples. 

The Court, like some contracting states that allow transgender individuals to contract opposite-sex civil marriage, has so far attempted to hold apart the issues of transgender and same-sex marriage rights. In Schalk and Kopf v Austria the Court stated that the principles established in Christine Goodwin v the United Kingdom - which concerns the rights of transgender individuals to enter into opposite sex marriage - did not impose any obligation on contracting states to grant same-sex couples access to marriage because Christine Goodwin was concerned with marriage of partners who are of different genders, even if gender is not defined by purely biological criteria. 

The position adopted by the Court in Schalk and Kopf is not sustainable if it decides to find in favour of the applicant in H. v Finland because the applicant wishes to remain married to a person of the same gender. 

Two observations can be made at this early stage:

1. Because of the position adopted by the Court in Schalk and Kopf it seems unlikely that the Grand Chamber will find in favour of the applicant in H. v Finland.

2. However, if the Grand Chamber does find in favour of the applicant in H. v Finland the Court is going to have to produce a completely new set of reasons for why those who have undergone gender reassignment surgery in order to acquire the opposite gender should be able to contract marriage with someone of the same sex, whereas those who have acquired their gender without surgery should not. 



My original analysis of H. v Finland can be found at Jurist here:

http://jurist.org/hotline/2012/11/paul-johnson-h-finland.php




Monday, 29 April 2013

Applicants in Eweida and Others v the United Kingdom request referral to Grand Chamber

Several sources report that three of the four applicants in Eweida and Others v the United Kingdom, whose complaints were recently rejected by the European Court of Human Rights, have submitted a request for referral to the Grand Chamber. 

Two of the applicants' complaints (Ladele and McFarlane) relate to claims of discrimination in and dismissal from employment because of their refusal to provide services to homosexuals.

The Daily Telegraph describe this as 'a final attempt to overturn rulings they [the applicants] say have restricted religious freedom for Christians and effectively persecuted those wanting to publicly practise their religion'.

The Christian Institute (who have financially backed Ladele) have stated that 'What this case shows is that Christians with traditional beliefs about marriage are at risk of being left out in the cold'.

Terry Sanderson, writing for the National Secular Society, gives 'full marks for sheer bloody-mindedness' to 'the paranoid Christian activists obsessed with the idea that they are being persecuted in the workplace'.

My article on the Ladele and McFarlane aspects of Eweida and Others v the United Kingdom can be found on the ECHR Blog here:






Friday, 26 April 2013

Blood bans based on sexual orientation: do they violate Convention rights?

Many countries around the world continue to operate a total or partial prohibition on blood donation from men who have engaged in homosexual sexual acts. A significant amount of Council of Europe states impose a complete restriction on any man who has had sex with another man, while a small amount of states operate time limited restrictions (such as the United Kingdom which has a one year rule).

The question of blood donation and homosexuality remains peripheral to debates about human rights and sexual orientation. Whilst some continue to argue that singling out male homosexual sex as a basis for blanket exclusion of donors has no credible scientific basis and is purely discriminatory, others argue that it is a necessary and proportionate measure to maximise the safe collection of blood.

The European Court of Human Rights has never considered this issue. The closest it has got is the complaint in Tosto v Italy, which concerned the then blanket ban in Italy on homosexual donors. The Court struck the complaint from its list because, shortly after the application was submitted, Italy adopted a new policy on screening blood donors. Like some other Council of Europe states (for example, Spain and Poland) screening of potential donors in Italy is done by assessing sexual health risks without reference to sexual orientation.

The question of whether differentiating between potential donors on the grounds of sexual orientation constitutes discrimination contrary to Article 14 of the Convention has, therefore, never been determined by the Court.

In an interesting essay published in the Student Journal of Law, Jon Bardsley argues that bans based on sexual orientation do constitute discrimination under the Convention.

This was certainly the conclusion reached by the applicant in Tosto v Italy, who argued that excluding him from donating blood because he was a homosexual interfered with his Article 8 rights because it affected his personal dignity and prevented him from developing his personality as a donor and being socially useful ('Le requérant fait enfin observer que l’exclusion du don du sang l’a atteint dans sa dignité personnelle, l’a empêché de développer sa personnalité en tant que donateur et de se rendre socialement utile').

It would be interesting to know if there are any developments in Council of Europe states regarding possible complaints to the Court in respect of this issue. If readers have any observations or information please contact me directly or make a comment on this post.
 

Wednesday, 24 April 2013

H v Finland - consideration of the applicant's request for referral to the Grand Chamber

The European Court of Human Rights has today announced that it will consider on the 29th April 2013 the applicant's request for referral to the Grand Chamber in the case of H. v Finland.

My previous comment on this case can be found on Jurist at:

http://jurist.org/hotline/2012/11/paul-johnson-h-finland.php

A previous Guest Post on this blog by Constantin Cojocariu, a lawyer working for Interights, can be found here:

http://echrso.blogspot.co.uk/2013/03/h-v-finland.html
 

Tuesday, 23 April 2013

Judge Bratza cites 'gay marriage' to justify the prohibition on 'political' advertising in UK broadcast media

The Grand Chamber of the European Court of Human Rights yesterday issued its judgment in Animal Defenders International v the United Kingdom, in which it held by the narrowest majority (9-8) that the prohibition on 'political' advertising in UK broadcast media did not violate the applicant's right to freedom of expression guaranteed by Article 10 of the European Convention on Human Rights.  

In a concurring opinion, Judge Bratza comments on the wider issues raised by the complaint and provides a lengthy justification for the prohibition on political content in UK radio and television. 

Such prohibition is created by the Communications Act 2003section 321(2) of which states that 'an advertisement contravenes the prohibition on political advertising if it is':

(a) an advertisement which is inserted by or on behalf of a body whose objects are wholly or mainly of a political nature;

(b) an advertisement which is directed towards a political end; or

(c) an advertisement which has a connection with an industrial dispute.

What counts as 'political' has very wide scope and includes actions aimed at 'influencing the outcome of elections or referendums' and 'bringing about changes of the law' to 'influencing public opinion on a matter which, in the United Kingdom, is a matter of public controversy'. 

In the case in question, the applicant was contesting the refusal by UK authorities to permit the showing of a 20 second television advertisement about cruelty towards primates. 

In his concurring opinion, Judge Bratza concentrates on the 'purpose of the general prohibition in the legislation' and states that '[a]lthough the situation of an individual applicant cannot be ignored, it is the justification for the law in general which should in my view be at the heart of the Court’s examination'. 

The justification for the prohibition on political advertising in broadcast media is, in Judge Bratza's view, that it avoids 'leaving to individual judgment questions such as the wealth or influence of the individual, political party or association or the worthiness or morality of the political cause in question, with the attendant risks of discriminatory treatment'. 

Judge Bratza expands on the 'attendant risks of discriminatory treatment' in the following terms:

'As pointed out by the national courts, while the protection of animals from commercial exploitation might be a relatively uncontroversial subject, there are other areas where this would be very far from the case and where the risks of distortion would be particularly high – abortion, immigration, gay marriage and climate change are obvious examples'.

The inclusion of 'gay marriage' in this list of areas where discrimination might result from 'distortion' created by political advertising in broadcast media is interesting. It is difficult to tell from Judge Bratza's comments exactly what kind of advertising about same-sex marriage he fears would create a high risk of distortion - would it be adverts in favour of same-sex marriage, against it, or a mix of both? However, if Judge Bratza is defending a prohibition on broadcast advertisements by those opposed to same-sex marriage on the basis that it risks perpetuating or increasing the discrimination of sexual minorities, then that is (at the very least) an interesting and noteworthy interpretation of Article 10 of the Convention.   

Monday, 22 April 2013

Annual Report on the Execution of Judgments

The Committee of Ministers of the Council of Europe has published its 6th Annual Report 'Supervision of the execution of judgments and decisions of the European Court of Human Rights'. 

The Report contains an extensive overview of the Committee of Minister's supervision of the Court's judgments during the last 12 months. It outlines developments in processes designed to increase the effectiveness of the Court's judgments and includes a wide range of statistics showing where future reform is most needed. 

The Chairs of the human rights meetings (the quarterly 'DH meetings') state in the Report that: 'All in all, 2012 has been a rich year full of contrast. It has clearly been a rewarding year as progress has been achieved on many fronts and the positive dynamics between all involved strengthened. Still, statistics and actual cases before the Committee of Ministers demonstrate that considerable challenges lay ahead'.

The Report contains an overview of the most important events of 2012 (Appendix 2) and this contains a discussion of the ongoing supervision in Alekseyev v Russia

Alekseyev v Russia is the only case relating to sexual orientation that is mentioned in the Report, and is only 1 of 11 cases listed under the subject heading 'discrimination'. 

The high-profile status accorded to Alekseyev v Russia by the Committee of Ministers reassuringly suggests that it regards the human rights issues involved - both the continuing restriction of 'gay rights' marches across the Russian Federation, as well as the enactment of laws designed to criminalize 'homosexual propaganda' - to be of the highest importance.




Thursday, 18 April 2013

Alekseyev v Russia - Russian NGOs defend 'homosexual propaganda' laws

In a Communication to the Committee of Ministers of the Council of Europe two NGOs based in the Russian Federation - the Family and Demography Foundation, and the Interregional Public Organization 'For Family Rights' - have provided an extensive defence of recently enacted 'homosexual propaganda' laws in Russia. 

The Communication relates to the Committee of Minister's ongoing supervision of Alekseyev v Russia which I have detailed in a number of earlier posts.

The principle argument of the NGO's Communication is that 'there is no incompatibility between ECtHR's judgment on Alekseyev v Russia and Russian regional laws prohibiting propaganda of homosexuality to minors'. 

To substantiate this claim (as I imagined in my recently published Working Paper) these NGO's have cited the Court's reasoning from §86 of the Alekseyev judgment ('There is no scientific evidence or sociological data at the Court's disposal suggesting that the mere mention of homosexuality, or open public debate about sexual minorities' social status, would adversely affect children or “vulnerable adults”') to argue that:

'The Court, therefore, completely overlooks the issue of purposeful propaganda of homosexualism targeted at children, which clearly exceeds mere mention of homosexuality, or open public debate about sexual minorities' social status'.

The NGO's provide extensive detail about why 'purposeful propaganda of homosexualism targeted at children' can not be considered protectable as freedom of expression under Article 10(1) of the Convention and can justifiably be regulated under the restrictions contained in Article 10(2). 

In summary, an interference with the freedom of expression of homosexuals is argued to be justified because:
  1. Homosexual propaganda laws protect the 'health of children'. The NGO's argue that: 'Extensive scientific data reliably links homosexual lifestyle to increased risks to one's physical and mental health'. In light of this, they argue, any claim of discrimination under Article 14 is also negated because the 'objective data linking homosexual behaviour to heightened physical and mental health risks' means that protecting children from exposure to homosexuality has 'entirely objective and reasonable justifications'. 
  2. Homosexual propaganda laws protect 'the family'. The NGO's argue that the heterosexual family is foundational to the 'public order' outlined in Article 10(2) which allows for an interference with freedom of expression. 
  3. Homosexual propaganda laws protect 'public morals'. The NGO's argue that Russia should enjoy a wide margin of appreciation to determine the restrictions on freedom of expression that are necessary to protect its domestic moral standards.
These points are fairly easy to contest using the Court's recent case law insofar as they relate to public assemblies such as 'gay pride' events. Perhaps because they recognize this, later in the Communication the NGO's state that they feel 'compelled to raise a number of issues with ECtHR's judgments on Alekseyev v Russia, as well as a number of other cases'. They note that 'these judgments contain serious flaws, which cause grave concerns' and that should the 'Court's case-law continue to include such flaws, this might significantly undermine its legitimacy and the authority of its decisions'. The key 'flaws' identified are:
  1. A 'disregard for the need to protect minors'. The NGO's accuse the Court of failing to recognize the key reasons why a regulation of homosexuality in the public sphere is necessary to protect minors in Russia. 
  2. A 'disregard for the interests of the child'. The NGO's accuse the Court of failing to 'properly take into account the interests of the child in some of its judgements, particularly on cases dealing with the issue of the upbringing and adoption of children in relation to the rights of so-called "sexual minorities"'. The Court, they argue, has 'thrown away' internationally recognized norms relating to heterosexual parenting and child rearing and 'totally ignored the interests of the child'. In place of a concern with children the Court is said to have substituted 'artificially contrived legal concepts'.
  3. A disregard for 'international consensus'. The NGO's accuse the Court of substituting international consensus with 'trends', a practice they describe as 'extremely dangerous'.
  4. 'Deciding on the basis of ideology'. The NGO's argue that the 'ECtHR in its judgments at times finds itself depending on controversial ideological principles'. 
  5. Reaching 'untenable' judgments that threaten the Court's legitimacy.
These criticisms are not novel (and are the subject of wider debate about the Court) but their use does reveal an implicit recognition that the Court's existing case-law is not in favour of this NGO's arguments. 

Nevertheless, insofar as the NGO's arguments relate to a wide range of different forms of public expression (and not just gay pride events), they demonstrate that the Court will be required to significantly evolve its jurisprudence in respect of Article 10 if it is to recognize that homosexual propaganda laws are a violation of the ECHR. 

My Working Paper available on SSRN shows where such evolution is needed:


The Committee of Ministers will consider this Communication at a forthcoming quarterly DH meeting. 


[If after reading this post you feel in need of something more cheerful or uplifting, perhaps yesterday's song in the New Zealand Parliament, just after the Marriage (Definition of Marriage) Amendment Bill was successfully read for a third time, will suffice.]
 


   

Monday, 15 April 2013

New Working Paper on 'Homosexual Propaganda' Laws in the Russian Federation

I have made available a working paper: 

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

This is available via the Social Science Research Network (SSRN):

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2251005



Friday, 12 April 2013

H.Ç. v Turkey - update and recent development

The newspaper Cyprus Today has reported that legislation is being drafted in the Turkish Republic of Northern Cyprus (TRNC) by the Prime Minister's EU Co-ordination Office that, if enacted, would repeal those articles of the Penal Code that continue to criminalise male homosexual acts committed between consenting adults.

This move comes soon after the communication of the complaint in H.Ç. v Turkey by the European Court of Human Rights to the TRNC government which I reported on 4th March.

Öncel Polili, a Turkish Cypriot lawyer who, with the Human Dignity Trust, is part of the team responsible for bringing the complaint in H.Ç. v Turkey regards the proposed legislative change as a direct result of the communication of the complaint by the Court:

“It is unlikely to be a coincidence that the TRNC Parliament drafted a bill in order to repeal the relevant articles of the criminal code immediately after it was communicated to them that the HDT lodged a case to the European Court of Human Rights.”

The news has been welcomed by Marina Yannakoudakis, a UK Conservative MEP, who in 2011 received assurances from the President of TRNC, Derviş Eroğlu, that he was willing to sign a repeal of the ban on homosexuality into law.

The legislative proposals are obviously very welcome and demonstrate the importance of the Court communicating complaints to contracting states. As in previous complaints relating to sexual orientation discrimination, a communication from the Court can result in a friendly settlement prior to a review of the merits.

In many ways, the proposed legislative changes in TRNC are unsurprising. It would have been near impossible for the TRNC government to successfully defend the blanket criminalisation of male homosexual acts in the Court.

A friendly settlement in H.Ç. v Turkey does mean, however, that there is no potential for the type of evolution in ECHR jurisprudence on sexual orientation that I discussed on 6th March. This is unfortunate, because an Article 3 ruling from the Court on the criminalization of male homosexual acts between consenting adults in private would have been extremely important in the wider global context.

There is further coverage of this case on the website 76 Crimes by Colin Stewart.








Thursday, 11 April 2013

X. v Turkey - round-up

The latest issue of European Human Rights Law Review (2013, 1: 95-99) contains a case comment on X. v Turkey

A previous detailed and informative commentary was provided by the Human Rights Law Centre

Further commentary has been provided by Strasbourg Observers, The Equal Rights Trust, Shout Out UK, ECHR Blog, and ILGA Europe.

My original commentary was published in Jurist on the day of the Court's judgment. 

Monday, 8 April 2013

Speculating on an individual's sexual orientation - violation of private life or freedom of expression?

In my post of 28th March I detailed the case of Paulina Rubio Dosamantes v Spain which concerns the complaint that media speculations about the applicant's sexual orientation - specifically that she is bisexual or homosexual - constitute an infringement of her right to respect for private life under Article 8 of the Convention. The applicant is a well known singer in Spain. Her complaint about speculation in three television programmes regarding her sexual orientation has already been considered by the Spanish courts. The domestic courts rejected her complaint that discussion of her sexual orientation adversely affected her 'honour' because homosexuality could not currently be understood as 'disgraceful'. Her privacy claim was also rejected because the applicant was said to have tacitly consented to the controversy over her sexual orientation and 'played' with it for promotion.

While the Court ruminates on the admissibility of Paulina Rubio's Article 8 complaint, it is worth thinking about another ECHR complaint that involved a 'pop star' and discussions of sexual orientation. In Sapan v Turkey, the ECHR considered a complaint by a publisher about the seizure and suppression of a book entitled 'Tarkan - star phenomenon' ('Tarkan - Yildiz olgusu'). The book, a partial reproduction of a doctoral thesis, contained a study of the nature and meaning of 'star' in Turkey and focused in particular on the well known singer Tarkan (Tarkan Tevetoğlu). In 2001, Tarkan petitioned the High Court of Istanbul to suppress the publication of the book on the basis that it created defamation of character. To support his claim Tarkan cited a number of passages from the book, the first of which was:
 
'(...) a-t-il les yeux maquillés (...) est-il homosexuel (...)' ('he has eyes made-up...is gay').
 
The High Court of Istanbul upheld the singer's request and copies of the book were seized. Mr. Sapan, the publisher, petitioned the High Court himself, requesting a lifting of the seizure because the book was the result of scientific analysis and sociological research and, as such, its publication was protected by Article 10 of the Convention. This request was denied and, after several iterations of the case in the domestic courts, the Court of Cessation concluded that the singer had suffered damage because the book addressed the singer's 'privacy' rather than his 'artistic personality'.
 
The principle question before the Court was whether the interference created with the publisher's right to freedom of expression was necessary in a democratic society. In its review, the Court noted that the book was a partial reproduction of a doctoral thesis and stressed the importance of academic freedom. It stated that the book was 'scientific' rather than a 'sensational' press account designed to satisfy the curiosity of a particular readership about the details of a strictly private celebrity life. Although the Court reiterated its settled view that contracting states have a margin of appreciation to determine when it is necessary in a democratic society to restrict freedom of expression, it found that the national courts had not taken sufficient care in examining the balance between the right to freedom to impart information and the protection of the reputation of others. In other words, the Court could not find evidence that the national courts had fully considered whether there were sufficient and relevant reasons for the seizure of the book.

The Court unanimously found that Mr. Sapan had suffered a violation of his Article 10 rights.

Sapan v Turkey does not answer the question asked in Paulina Rubio Dosamantes v Spain, namely: does suggesting someone is gay violate their right to respect for private life? This is because it does not contain an analysis of the proportionality of restricting Mr. Sapan's freedom of expression but, rather, notes that the domestic court's themselves failed to carry out the consideration of proportionality required by Article 10.Therefore, it does not tell us whether the publisher's Article 10 rights 'trump' the singer's Article 8 rights. However, one telling feature of the Sapan judgment is that (in line with the Court's wider case law) it emphasised that academic publications merit greater protection than mere 'sensational' press speculation. Might this help Paulina Rubio's complaint?

These cases are interesting because, in reducing the question of public discussion about an individual's sexual orientation to a contest between freedom of expression and privacy, they tend to miss the underlying reasons why public figures bring these complaints. The foundation of Paulina Rubio's complaint is arguably a desire to disassociate herself from the 'stigma' of homosexuality. In this sense, complaints such as these are the result of a wider homophobia in society and themselves contribute to sustaining the idea that suggesting someone is homosexual is insulting or damaging (one need only remember the singer Jason Donovan's successful libel case against The Face in the early 1990s to realize the longer history of this type of action). 

In Paulina Rubio Dosamantes v Spain a good outcome would be if the Court explicitly reiterated the view of the domestic Spanish courts that a discussion of the applicant's sexual orientation cannot adversely affect her 'honour' because homosexuality can not be understood as 'disgraceful'. Although this is often the point of media speculation - because journalists seek to use allegations of homosexuality to discredit individuals - it is counter-productive to combating homophobia to uphold an Article 8 claim because it gives credence to the view that merely suggesting someone is homosexual creates damage to their private life. Just as media speculation about an individual's heterosexuality should not be considered a violation of their private life, neither should speculating on whether someone is gay be considered to violate the 'intimate and vulnerable' sphere of private life which Article 8 protects.     
 






Saturday, 6 April 2013

'Anti Homosexual Propaganda' law in the Russian Federation

The European Courts website have today published a piece by me: 'Russia's anti-gay "propaganda law" and the European Court of Human Rights'.

http://europeancourts.blogspot.co.uk/2013/04/russias-anti-gay-propaganda-law-and.html

European Courts is edited by Marc de Werd, Justice and EU-law co-ordinator in the Amsterdam Court of Appeal in the Netherlands.

Friday, 5 April 2013

Pride in St. Petersburg

Despite legal obstacles, including those created by the new 'anti homosexual propoganda' law, and police interference, it has been reported that gay and lesbian rights activists will attempt another gay pride event in St. Petersburg this year. 

The European Court of Human Rights is due to give its judgment in Aleksandr Vladimirovich Lashmankin and Others v Russia which contains a complaint against the St. Petersburg authorities for refusing to allow gay men and lesbians to hold peaceful assemblies. 

As a sign of protest about the ongoing curtailment of sexual minorities' freedom of assembly in Russia, Amsterdam City Council will fly a rainbow flag when Russian President Vladimir Putin visits the city next week. 

I am writing a piece for the European Courts website, which will appear next week, about the rise of anti-propaganda law in Russia and how the ECHR is useful in addressing it. 

Tuesday, 2 April 2013

Does witnessing homosexual acts while detained in prison constitute a violation of Article 3?

In Ştefan Lazar and Vasile Luca Teofil v Romania, which ostensibly concerns the complaints of two applicants about convictions for drug trafficking, one of the applicants has brought an Article 3 complaint relating to his detention in prison. Complaints to the Court about imprisonment are (depressingly) common and there is an extensive Article 3 jurisprudence about what does and does not meet the minimum threshold of 'inhuman or degrading treatment or punishment' in this area.

In this case the first applicant, a 41 year old man, has brought an Article 3 complaint about the conditions of his detention in Jilava prison. The applicant claims that in 2003 he was placed in an overcrowded cell that was dirty and infested with cockroaches and that the water he had access to was yellow and infested with parasites. However, an additional element of his Article 3 complaint is that he was required to share with homosexual inmates who practiced sexual activities in his presence. 

In its decision, the Court seems to have glossed over the sexual element of the Article 3 complaint. It has stated that the applicant is complaining about 'the material conditions of detention, including overcrowding and the unsanitary conditions of the cell'. 

The Court has adjourned its decision on the admissibility of the complaint in order to communicate with the Romanian government and gather more facts about the conditions of the applicant's detention. It will be interesting to see whether, in the Court's subsequent decision and possible judgment on the merits, whether and how the alleged exposure to homosexual acts is considered.