Friday, 28 June 2013

How do you 'prove' homosexuality to the European Court of Human Rights? M.K.N. v Sweden

The European Court of Human Rights yesterday dismissed the complaint 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.

Background and facts

The applicant, a married man whose wife and two children are living in Syria, claimed asylum in Sweden on the grounds that he had been persecuted in Iraq due to his Christian beliefs and the fact that he was well-off, that he had been kidnapped at his work place and forced to pay money to Al-Tawahid and AlJihad (groups fighting against the American troops), that these kidnappers had threatened to kill his children and to blow up his place of work, and that his sister-in-law had been murdered outside her work place in late 2008 allegedly as retribution against him and his family.

Following the rejection of his asylum application, the applicant appealed and this time made available the following 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:

'In regard to the applicant’s statement that he had had a homosexual relationship, the court found that he had not given a reasonable explanation for his having made this claim so late in the proceedings. It noted, in this respect, that he had been informed, during the interviews at the Board, that civil servants of the Board and all other people present were bound by professional secrecy. Having regard to this and the applicant’s account of the events, the court found reason to strongly question the veracity of this statement'.

Complaint to the ECtHR

The applicant complained to the Court that if he was returned to Mosul or other parts of Iraq he would face a real risk of being subjected to treatment in breach of Article 3 of the Convention.

The applicant cited the risk posed by virtue of his previous homosexual relationship.

The applicant stated that, contrary to what the Migration Court had found, he had given a reasonable explanation as to why he had not invoked his homosexual relationship earlier in the asylum proceedings and that, consequently, he should be given the benefit of the doubt in regard to this claim.

The Swedish government, who wished to repatriate the applicant to the Kurdistan region of Iraq, stated that 'the homosexual relationship that he claimed to have had would not prevent him from settling there'.

The ECtHR judgment

The Court rejected the applicant's Article 3 complaint.

In respect of the aspect of the complaint relating to the homosexual relationship, the Court stated that it was 'aware of the very difficult situation for real or perceived homosexuals in Iraq and that these difficulties are present also in the Kurdistan Region'. 

However, it went on to state 'that the applicant has expressed the intention of living with his wife and children'. 

The Court stated that more importantly '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'.

How do you prove homosexuality?

What is astonishing about the ECtHR's judgment is that it ostensibly suggests that the applicant was fabricating a homosexual relationship in order to persuade the Swedish authorities to grant him asylum.  

Yet what is not 'credible' about the applicant's complaint? 

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 his previous homosexual relationship to the authorities. 

Furthermore, given the social and cultural construction of homosexuality in Europe as well as the Middle East, it seems highly credible that a married man would attempt to keep a homosexual relationship secret from his wife with whom he wished to continue a relationship. 

It appears that both the Swedish authorities and the Court were unable to accept that it is socially normative for many individuals in heterosexual relationships to engage in homosexual sexual relationships. It also appears that they were unable to accept that it is socially normative for men and women to not want to disclose information about homosexual relationships for fear of persecution. 

This failure to acknowledge the reality of many homosexual sexual relationships - whether in the Middle East or elsewhere - is highly problematic in its disregard for the lived experience of millions of men and women around the world who are unable to publicly acknowledge this aspect of their lives.

However, a further problematic aspect of this case is that even when the applicant did reveal his homosexual relationship the authorities did not believe him. 

This raises broader and long standing questions about how individuals who have suffered persecution for homosexuality are able to demonstrate that they are, as the Court puts it, 'real' or 'perceived' homosexuals?

How exactly does one 'prove' homosexuality to asylum authorities and the Court?

Whilst immigration authorities in European states have been reported to be increasing pressure on lesbian and gay asylum seekers to prove their sexual orientation, the applicant in this case faced an even greater challenge because he never claimed to be gay.

Whilst sexual orientation is impossible to materially prove, the Court has established that 'real' homosexuality is a 'manifestation of the human personality'. 

However, given that the applicant was not claiming to be a 'real' homosexual, what could he have provided to the Court that would have proved a previous homosexual relationship? 

The circumstances of the case suggest that it was always highly unlikely that any evidential artefacts (letters, photographs etc.) were ever going to be available to prove the existence of an intimate relationship. All the applicant had at his disposal was his account of the relationship and its consequences. 

The Court's judgment suggests that it interpreted all of the facts given by the applicant in his account as evidence of deception: the fact that the applicant was married and wished to remain married, the fact that he did not immediately reveal the homosexual relationship, and his explanation for the delay in providing details about it were all taken as evidence of falsehood. 

One wonders if the Court understands the nature and experience of homophobia. Given that the Court acknowledged that it was 'aware of the very difficult situation for real or perceived homosexuals in Iraq' it is therefore entirely problematic to regard the applicant's concealment of a homosexual relationship as suspicious. 

The very act of concealing a homosexual relationship could have been read by the Court as evidence of the applicant's fear of homophobia instead of being regarded as a ground for disbelieving him. 

This case raises an important question: to what extent is it reasonable to dismiss a complaint that hinges on a fear of serious homophobic treatment because an applicant demonstrates a key 'symptom' of homophobia, a desire to conceal homosexuality?  



Thursday, 27 June 2013

PACE adopts new resolution and recommendation

The Parliamentary Assembly of the Council of Europe has today adopted new resolutions and recommendations relating to sexual orientation. These are extremely significant. 

Recommendation 2021 (2013) recommends that the Committee of Ministers:

  • ensure regular follow-up of Recommendation CM/Rec(2010)5 on measures to combat discrimination on grounds of sexual orientation or gender identity and conduct periodic reviews of its implementation;
  • devote special attention to the issue of legislation on so-called “homosexual propaganda” and ensure that Council of Europe member States respect the recommendations expressed by the European Commission for Democracy through Law (Venice Commission) in its Opinion on this matter;
  • ensure that its activities in the areas of youth, equality, human dignity and intercultural dialogue, including its religious dimension, mainstream the issue of non-discrimination on the grounds of sexual orientation and gender identity;
  • intensify its work against homophobia and transphobia, with a particular emphasis on prevention in schools and sports;
  • set up a model online training course on homophobia, transphobia and discrimination on the grounds of sexual orientation and gender identity for the police, prosecutors and the judiciary, which could subsequently be adapted at national level; 
  • explicitly include sexual orientation and gender identity as prohibited grounds of discrimination in all its future relevant conventions;
  • consider the feasibility of joint action with the European Union Agency for Fundamental Rights (FRA) in order to 
  • ensure the collection of comparable Council of Europe-wide data and information on the situation of LGBTs;
  • ensure that the judgments of the European Court of Human Rights, including those concerning discrimination on the grounds of sexual orientation and gender identity, are effectively implemented without delay, including through the adoption of general measures to prevent further violations. 

Resolution 1948 (2013) calls on Council of Europe member States:

As regards equality and non-discrimination, to:

  • ensure the full protection of human rights for all those who are subject to their jurisdiction, including the prohibition of discrimination on the grounds of sexual orientation and gender identity;
  • ensure that any new legal and policy instrument they adopt in the area of equality and non-discrimination explicitly includes sexual orientation and gender identity;
  • introduce, without delay, civil legislation protecting against discrimination on grounds of sexual orientation and gender identity in all areas of life, including employment, education, health, access to goods and services, housing, access to social security and social advantages;
  • devise and implement national action plans/strategies aimed at promoting equality and non-discrimination on the grounds of sexual orientation and gender identity;
  • introduce clear regulations on public duty, mandating the public services to refrain from discriminating on the grounds of sexual orientation and gender identity;
  • involve LGBT and human rights organisations in consultations on draft laws and policies concerning discrimination;
  • adopt criminal legislation introducing sexual orientation and gender identity as grounds for prosecution of hate crimes;
  • introduce binding guidelines for law-enforcement officials to ensure that any alleged hate motive associated with a crime, including hate motives on grounds of sexual orientation and gender identity, is promptly, impartially, effectively and thoroughly investigated and duly taken into account in the prosecution and sentencing of those crimes.

As regards incitement to harassment or violence on grounds of sexual orientation and gender identity, to:

  • improve data collection on homophobic and transphobic crimes, as well as on discrimination on the grounds of sexual orientation and gender identity;
  • organise public campaigns on equality and diversity, as well as against incitement to harassment or violence on grounds of sexual orientation and gender identity;
  • ensure that projects against bullying in schools do not discriminate on any grounds, with a special emphasis on prevention, addressed to and involving students, teachers and school staff;
  • train police, judiciary and administration officials on homophobia, transphobia and the prohibition of discrimination on the grounds of sexual orientation and gender identity;
  • set up complaint and support mechanisms for victims of homophobic and transphobic violence, such as hotlines and specific social services, equipped with specialised staff. 

As regards specific situations of concern, the Assembly calls on:

  • the authorities that exercise de facto control in the northern part of Cyprus to give full execution to the judgment of the European Court of Human Rights in the case of Modinos v. Cyprus and ensure the decriminalisation of consensual same-sex relations between adults, as in the Government-controlled areas of the Republic of Cyprus;
  • the authorities of Poland to give full execution to the judgment of the European Court of Human Rights in the case of Bączkowski and Others v. Poland;
  • the competent authorities of the Republic of Moldova to give full execution to the judgment of the European Court of Human Rights in the case of Genderdoc-M v. Moldova; to comply with judicial decisions quashing legislation on the prohibition of so-called homosexual propaganda; and to repeal it if they have not yet done so;
  • the authorities of the Russian Federation to give full execution to the judgment of the European Court of Human Rights in the case of Alekseyev v. Russia;
  • the Russian authorities to halt further action under the “Foreign Agents” Law against the Side by Side LGBT film festival and “Coming Out”, to ensure due process in any appeal proceedings by these organisations against their conviction under this law, and to cease further prosecutions of LGBT human rights organisations for not registering as “foreign agents”;
  • the Russian Council of the Federation to reject the law on so-called “Propaganda of non- traditional sexual relationships among minors”;
  • the Parliament of Ukraine not to pursue the examination of the draft law on the prohibition of so- called “homosexual propaganda”;
  • the relevant local and regional authorities in the Russian Federation to repeal legislation on the prohibition of so-called homosexual propaganda;
  • the authorities of Georgia to carry out a prompt investigation into the attack by the violent counter- demonstrators against the participants of the rally against Homophobia on 17 May 2013, and hold accountable those who incited and committed violent acts;
  • the Parliament of Lithuania not to pursue the examination of proposals to introduce administrative penalties for so-called “public denigration of constitutional moral values and of constitutional fundamentals of family life”.

As regards the role of public figures, including parliamentarians, politicians and other people in a position of authority, the Assembly:

  • invites them to establish a relationship of dialogue and trust with the LGBT community, also by taking part in Pride marches and similar events;
  • calls on them to refrain from homophobic and transphobic discourse and to publicly condemn it;
  • proposes to organise awareness-raising activities aimed at parliamentarians on the prevention of homophobia and transphobia, as well as the promotion of Council of Europe standards in the area of non-discrimination on the grounds of sexual orientation and gender identity. 

PACE vote on sexual orientation resolution and recommendation

The Parliamentary Assembly of the Council of Europe will today consider and vote on a new resolution and recommendation in respect of 'Tackling discrimination on the grounds of sexual orientation and gender identity'. 

This represents a significant evolution in Council of Europe policy since Recommendation CM/Rec(2010)5 of the Committee of Ministers to member states on measures to combat discrimination on grounds of sexual orientation or gender identity. 

The new draft resolution and recommendation will be introduced by Håkon Haugli, who is has also produced a full report on the issue. 

The full text of the draft resolution and recommendation is as follows:

Draft Resolution

1. The Parliamentary Assembly welcomes the positive developments in tackling discrimination on the grounds of sexual orientation and gender identity which have occurred since the adoption of its Resolution 1728 (2010), such as the introduction, by different Council of Europe member States, of specific legislative measures, action plans and strategies to promote equality and tackle discrimination against lesbian, gay, bisexual and transgender persons (LGBTs) as well as to tackle homophobic and transphobic speech and violence.
2. Despite this progress, the Assembly regrets that prejudice, hostility and discrimination on the grounds of sexual orientation and gender identity remain a serious problem, affecting the lives of tens of millions of Europeans. They manifest themselves in hate speech, bullying and violence, often affecting young people. They also manifest themselves through the repeated infringement of the right of peaceful assembly for LGBTs.
3. The Assembly acknowledges that societal changes require time and occur unevenly within the same country, let alone between different countries. However, the Assembly also believes that politicians, through their example and discourse, as well as laws, through their binding nature, are powerful driving forces to promote changes in society and ensure that the respect for human rights is not only a legal obligation but also a shared value.
4. In this regard, the Assembly expresses concern vis-à-vis homophobic statements by politicians and other personalities in a position of authority, which, far from being manifestations of freedom of expression, amount to hate speech and incitement to hostility, discrimination and violence.
5. Furthermore, the Assembly expresses deep concern at the introduction, at local, regional and finally at national or federal level, of legislation or draft legislation on the prohibition of so-called homosexual propaganda, in a number of Council of Europe member States. These laws and draft laws, which are at variance with freedom of expression and the prohibition of discrimination on account of sexual orientation and gender identity, risk legitimising the prejudice and hostility which is present in society and fuelling a climate of hatred against LGBTs.
6. In the light of these considerations, reaffirming the continued validity of its Resolution 1728 (2010) on discrimination on the grounds of sexual orientation and gender identity, the Assembly calls on Council of Europe member States:
6.1. as regards equality and non-discrimination, to:
6.1.1. ensure the full protection of human rights for all those who are subject to their jurisdiction, including the prohibition of discrimination on the grounds of sexual orientation and gender identity;
6.1.2. ensure that any new legal and policy instrument they adopt in the area of equality and non-discrimination explicitly includes sexual orientation and gender identity;
6.1.3. introduce, without delay, civil legislation protecting against discrimination on grounds of sexual orientation and gender identity in all areas of life, including employment, education, health, access to goods and services, housing, access to social security and social advantages;
6.1.4. devise and implement national action plans/strategies aimed at promoting equality and non-discrimination on the grounds of sexual orientation and gender identity;
6.1.5. introduce clear regulations on public duty, mandating the public services to refrain from discriminating on the grounds of sexual orientation and gender identity;
6.1.6. involve LGBT and human rights organisations in consultations on draft laws and policies concerning discrimination;
6.1.7. adopt criminal legislation introducing sexual orientation and gender identity as grounds for prosecution of hate crimes;
6.1.8. introduce binding guidelines for law-enforcement officials to ensure that any alleged hate motive associated with a crime, including hate motives on grounds of sexual orientation and gender identity, is promptly, impartially, effectively and thoroughly investigated and duly taken into account in the prosecution and sentencing of those crimes;
6.2. as regards homophobia and transphobia, to:
6.2.1. improve data collection on homophobic and transphobic crimes, as well as on discrimination on the grounds of sexual orientation and gender identity;
6.2.2. organise public campaigns on equality and diversity, as well as against homophobia and transphobia;
6.2.3. support or set up projects against homophobic and transphobic bullying in schools, with a special emphasis on prevention, addressed to and involving students, teachers and school staff;
6.2.4. train police, judiciary and administration officials on homophobia, transphobia and the prohibition of discrimination on the grounds of sexual orientation and gender identity;
6.2.5. set up complaint and support mechanisms for victims of homophobic and transphobic violence, such as hotlines and specific social services, equipped with specialised staff;
7. As regards specific situations of concern, the Assembly calls on:
7.1. the authorities that exercise de facto control in the northern part of Cyprus to give full execution to the judgment of the European Court of Human Rights in the case of Modinos v. Cyprus and ensure the decriminalisation of consensual same-sex relations between adults, as in the Government-controlled areas of the Republic of Cyprus;
7.2. the authorities of Poland to give full execution to the judgment of the European Court of Human Rights in the case ofBączkowski and Others v. Poland;
7.3. the competent authorities of the Republic of Moldova to give full execution to the judgment of the European Court of Human Rights in the case of Genderdoc-M v. Moldova; to comply with judicial decisions quashing legislation on the prohibition of so-called homosexual propaganda; and to repeal it if they have not yet done so;
7.4. the authorities of the Russian Federation to give full execution to the judgment of the European Court of Human Rights in the case of Alekseyev v. Russia;
7.5. the Parliaments of Ukraine and the Russian Federation not to pursue the examination of the respective draft laws on the prohibition of so-called homosexual propaganda;
7.6. the relevant local and regional authorities in the Russian Federation to repeal legislation on the prohibition of so-called homosexual propaganda.
8. As regards the role of public figures, including parliamentarians, politicians and other people in a position of authority, the Assembly:
8.1. invites them to establish a relationship of dialogue and trust with the LGBT community, also by taking part in Pride marches and similar events;
8.2. calls on them to refrain from homophobic and transphobic discourse and to publicly condemn it;
8.3. proposes to organise awareness-raising activities aimed at parliamentarians on the prevention of homophobia and transphobia, as well as the promotion of Council of Europe standards in the area of non-discrimination on the grounds of sexual orientation and gender identity.

Draft Recommendation

1. Following Recommendation CM/Rec(2010)5 of the Committee of Ministers on measures to combat discrimination on grounds of sexual orientation or gender identity, the Council of Europe has strengthened its activities in this area. The Parliamentary Assembly affirms its full support for this course of action and encourages the Committee of Ministers to continue in this direction with a view to ensuring the full implementation of Recommendation CM/Rec(2010)5.
2. Recalling its Resolution ... (2013) on tackling discrimination on the grounds of sexual orientation and gender identity, the Assembly regrets that, despite significant improvements in the protection of human rights for lesbian, gay, bisexual and transgender persons (LGBTs) in some Council of Europe member States, violence, prejudice, hostility and discrimination against them remain a serious problem.
3. Furthermore, the Assembly expresses deep concern at the repeated infringement, in some Council of Europe member States, of the rights of freedom of assembly and freedom of expression in relation to LGBTs and at the clear setback in this area due to the introduction of laws and draft laws on the prohibition of so-called homosexual propaganda.
4. The Assembly considers that Council of Europe action in the area of discrimination on the grounds of sexual orientation and gender identity is highly important to ensure that the same human rights standards are applied in all Council of Europe member States and that the respect for diversity is a shared value without geographical or political divides.
5. In light of the above, the Assembly recommends that the Committee of Ministers:
5.1. ensure regular follow-up of Recommendation CM/Rec(2010)5 on measures to combat discrimination on grounds of sexual orientation or gender identity and conduct periodic reviews of its implementation;
5.2. ensure that its activities in the areas of youth, equality, human dignity and intercultural dialogue, including its religious dimension, mainstream the issue of non-discrimination on the grounds of sexual orientation and gender identity;
5.3. intensify its work against homophobia and transphobia, with a particular emphasis on prevention in schools and sports;
5.4. set up a model online training course on homophobia, transphobia and discrimination on the grounds of sexual orientation and gender identity for the police, prosecutors and the judiciary, which could subsequently be adapted at national level;
5.5. explicitly include sexual orientation and gender identity as prohibited grounds of discrimination in all its future relevant conventions;
5.6. consider the feasibility of joint action with the European Union Agency for Fundamental Rights (FRA) in order to ensure the collection of comparable Council of Europe-wide data and information on the situation of LGBTs;
5.7. ensure that the judgments of the European Court of Human Rights, including those concerning discrimination on the grounds of sexual orientation and gender identity, are effectively implemented without delay, including through the adoption of general measures to prevent further violations.



Tuesday, 25 June 2013

Peter v Germany - recently communicated complaint

The European Court of Human Rights has communicated the case of Peter v Germany. The case concerns a complaint about the length of legal proceedings required to obtain access to a survivor's pension.

The complaint is brought by Mr. Peter who entered into a civil partnership, under the Civil Partnership Act 2001 (Gesetz über die eingetragene Lebenspartnerschaft), in 2001. His partner died in 2002.

Following the death of his partner, Mr. Peter was denied access to a survivor's pension on the basis that, as the surviving partner of a same-sex couple, he did not meet the criteria to be classified as a 'widow or widower'. In 2005 Mr. Peter, as the result of changes to domestic legislation, gained access to a survivor's pension but it was not back-dated to the point of his claim in 2002.

In January 2006, Mr. Peter's lodged a complain with the Federal Constitutional Court. In June 2010 a three-judge panel of the Federal Constitutional Court decided not to review the applicant’s constitutional complaint. In its reasoning the panel explained that the complaint did not raise a pressing constitutional question as the pertinent legal provision of the social security law had meanwhile been amended.

Mr. Peter made a complaint about the length of proceedings taken by the Federal Constitutional Court using new legislation designed to remedy this. In October 2012 the complaints panel of the Federal Constitutional Court dismissed the applicant’s complaint, noting that the actual duration of the proceedings – 4.5 years – was unusually long, but not excessive.

The complaint to the European Court of Human Rights

The applicant complains under Article 6 §1 of the Convention about the length of proceedings before the Federal Constitutional Court. After having made use of the new domestic remedy in this regard, he sustains his complaints under Article 13 of the Convention in particular that the new domestic remedy was not effective and the proceedings before the complaints panel were not fair within the meaning of Article 6 § 1 of the Convention. He points out that the complaints panel admitted that the length of the proceedings was unduly long and that no real attention was given to his constitutional complaint for at least the first 3.5 years after he had lodged it. However, the panel did not come to the necessary conclusions.


Saturday, 22 June 2013

Same-sex marriage, Lord Stoddart and the ECHR

As the Marriage (Same Sex Couples) Bill 2013 progresses through the UK House of Lords, Peers continue to table a vast number of amendments on a wide range of issues. 

For Lord Stoddart of Swindon, the Bill has allowed him to table an amendment that combines two of his greatest dislikes: legal equality for gay men and lesbians, and the European Court of Human Rights.

Lord Stoddart's tabled amendment (48A) proposes to insert the following new clause into the Bill:

               “The European Convention on Human Rights
In the event that the provisions of this Act are found by the European Court of Human Rights to be incompatible with the Convention for the Protection of Human Rights and Fundamental Freedoms, the Secretary of State shall act to withdraw the United Kingdom’s signature to the Convention.”
If Lord Stoddart's amendment was successful it would mean that any judgment from the Court in respect of any aspect of the Act would trigger a complete withdrawal of the UK from the Convention. 

This may seem an incredible amendment to table - after all, it proposes to write a threatening letter to the Court into an Act of Parliament ('If you find against us, we will take our ball back and go home and never play with you again') - but it is rather unsurprising if one has followed Lord Stoddart over the years. 

Lord Stoddart has always opposed equal rights for lesbians and gay men. He opposed the introduction of equality legislation, the right of same-sex couples to adopt, and the repeal of what is now called 'homosexual propaganda' legislation. He was instrumental in attempts to stop the equalisation of the minimum ages for heterosexual and homosexual sex in the UK and, like many of his colleagues, he complained about the result of his efforts to thwart the Sexual Offences (Amendment) Bill 1999:

      Lord Stoddart: I know that I shall be labelled as a bigot and reactionary.
      Noble Lords: Yes!

But Lord Stoddart's dislike of lesbian and gay legal equality is outshone by his persistent arguments against the legitimacy of the Court. Across a wide range of issues, he has often criticised the Court as part of his broader dislike of any integration between the UK and other European states. 

Lord Stoddart's amendment is highly unlikely to succeed, but it is a reminder of the continuing hostility to the Convention and the Court that exists in the UK Parliament. 

Friday, 21 June 2013

Should both of the names of a couple in a same-sex civil partnership be recorded on a birth certificate?

On 7th May the European Court of Human Rights declared inadmissible the complaint in Boeckel and Gessner-Boeckel v Germany in which the applicants complained about the inability to record both their names on their child's birth certificate. 

The applicants have lived together in a registered civil partnership since 2001 and in 2008 the second applicant gave birth to a son. Following the birth of their son, the Hamburg-Eimsbüttel Civil Registry Office issued a birth certificate naming the second applicant as the boy's mother and a space provided in the form for the father’s name was left blank.

The applicants subsequently requested the Hamburg District Court to rectify the birth certificate by inserting the first applicant as the boy's second parent. This request, and subsequent legal challenges, were rejected. 

Under German law the name of a father can be entered on to a birth certificate of a child when the father is married to the mother but is not the child's biological parent. The same does not hold for same-sex partners in a civil partnership. 

In their complaint to the Court the applicants complained under Article 8 of the European Convention on Human Rights taken on its own and in conjunction with Article 14 of the Convention that they were discriminated against in the enjoyment of their family life on account of their gender. 

The applicants submitted that there was no reasonable justification for allowing a biological mother’s husband to be entered on a birth certificate as the child’s father while refusing to enter the biological mother’s same-sex partner.

In a similar way to other recent decisions, the Court decided that the application was inadmissible because the comparison made by the applicants - between themselves and married opposite-sex couples - was not sufficient for an Article 14 complaint.

Under Article 14, the Court requires that there must be a difference in treatment of persons in relevantly similar situations. It concluded in this case that 'it cannot be said that the applicants found themselves in a relevantly similar situation as a married husband and wife in respect of the entries made into the birth certificate at the time of birth'. A key aspect of the Court's reasoning was that 'it is not confronted with a case concerning transgender or surrogate parenthood'.

In declaring the complaint inadmissible, the Court has legitimated a situation in which a man who marries a woman who subsequently gives birth to a child to which he is not biologically related can have his name automatically recorded on the birth certificate, but a woman who contracted civil partnership to the same woman in the same circumstances can not. 

It is difficult to see how the Court determines that married opposite-sex and same-sex couples in a civil partnership are not in a analogous situation in this respect. 

Boeckel and Gessner-Boeckel v Germany demonstrates, once again, the Court's reluctance to address clear inconsistencies in laws that create discrimination on the grounds of sexual orientation. Furthermore, it shows a continuing use of the question of 'analogous situation' to close down complaints prior to a consideration of the merits. 

Tuesday, 18 June 2013

'Homosexual propaganda' laws - the opinion of the Venice Commission

The European Commission for Democracy through Law (Venice Commission) has published its Opinion on the issue of the prohibition of so-called "Propaganda of homosexuality" in the light of recent legislation in some Council of Europe Member States.

The Venice Commission has stated that homosexual propaganda laws are incompatible with the ECHR because: they are not formulated with sufficient precision; the justifications given for them fail to satisfy the necessity and proportionality tests required by the ECtHR; they discriminate on the basis of sexual orientation. 

The Venice Commission draw upon a range of ECHR jurisprudence to support their argument that ‘the measures in question appear to be incompatible with “the underlying values of the ECHR”’.

This is a well reasoned decision that will prove very important in the months and years ahead. 

Same-sex marriage in England and Wales - more references to the ECHR

Yesterday, the UK House of Lords at Committee Stage agreed to Clause 1 of the Marriage (Same-Sex) Couples Bill 2013.

Clause 1 states: 'Marriage of same sex couples is lawful'.

During the debate several amendments were moved to change Clause 1 so that same-sex marriage and opposite-sex marriage would be distinguished from each other in law.

In support of his own amendment, which would have introduced the concept of 'traditional marriage' into English law (to distinguish it from same-sex marriage) Lord Dear relied on the European Convention on Human Rights for support. The text of the amendment is as follows:

“Protecting belief in traditional marriage

Any person, in exercising functions under or in consequence of this Act,
shall have regard to the following—

(a) that prior to the coming into force of this Act, marriage was the
union of one man and one woman for life to the exclusion of all
others (“traditional marriage”);

(b) that belief in traditional marriage is a belief worthy of respect in a
democratic society;

(c) that no person should suffer any detriment because of their belief in
traditional marriage.”


Lord Dear argued:

'I ask noble Lords to consider the words which case law has held to be paramount in this, that beliefs must be, “worthy of respect in a democratic society and not incompatible with human dignity”. They are words protected by the European Convention on Human Rights, and they cover both religious and philosophical beliefs. There are a clutch of cases which I could quote here, but I will refer briefly to only two of them.

The first is Grainger plc & Others v Nicholson in 2009. The court held that strong philosophical belief about climate change, for example, affected how the claimant lived. It went beyond mere opinion. It was setting out that opinion is one thing, which is not protected by the law, but that serious beliefs which stand above that should be so protected. That case really became the bedrock of this particular set of cases. In a 2005 case in the House of Lords, Regina v Secretary of State for Education and Employment and others ex parte Williamson, the noble and learned Baroness, Lady Hale, said that: “A free and plural society must expect to tolerate all sorts of views which many, even most, find completely unacceptable”.

Agreeing with that judgment, the noble and learned Lord, Lord Walker, in accepting pacifism, vegetarianism, and teetotalism as beliefs, went on to say that they are not just religious beliefs, “but equally … may be based on ethical convictions which are not religious but humanist”. I galloped through that just to say that the words, “worthy of respect in a democratic society”, have a solid bedrock in both European law and the law of this country.'

Lord Dear's arguments are incredibly weak. All ECHR jurisprudence (domestically and in the ECtHR) supports the view that it is for an individual state to organise their own arrangements for marriage and inter alia determine what is worthy of respect in a democratic society. In this respect, Lord Dear did not need to look at judgments on vegetarianism to support his argument, he could have looked directly at ECtHR jurisprudence on sexual orientation.

Despite spending a day of Committee trying to introduce amendments that would have achieved the opposite of the purpose of the Bill - that is, to create equal marriage - all amendments were either withdrawn or not moved.

In agreeing Clause 1, the Lords have agreed the most crucial part of the Bill.

Friday, 14 June 2013

List of ECHR sexual orientation complaints 1955-2013

I have made available a chronological list of complaints brought under the European Convention on Human Rights between 1955 and 2013 in respect of homosexuality.

It can be downloaded here:

https://docs.google.com/file/d/0ByFm9fY-KH05bl8xekNXdGc2Zkk/preview

This list is revised and expanded from an original first published in Homosexuality and the European Court of Human Rights.

Some points to note about the list:

  • Cases are listed when homosexuality is a primary or key issue in the complaint
  • Only published decisions and judgments are listed 
  • Many of the complaints prior to 1975 are not available via HUDOC, but those after 1975 can be accessed on HUDOC using the case number or name  
  • The latest date given for each complaint represents the point of its resolution by the Court or the former Commission; where additional dates are given these represent points at which admissibility by the Court or Commission was decided, or a Commission Report was issued. 

I will attempt to keep this list up-to-date and republish it from time to time. In this respect, if any reader notices any omissions or inconsistencies please do let me know.


Thursday, 13 June 2013

Thank you !

When I started this blog four months ago I wondered whether there would be much interest in it. I'm very pleased to say that in the time it has been running the blog has now had over 10,000 page views - which, for an academic blog about an international human rights convention and its relationship with sexual orientation, seems positive!

Visitors come from a staggeringly wide range of countries from around the world which is exciting. Interestingly, during the lifetime of the blog, the 'top country' for visitors has been the USA, demonstrating the interest there about the ECHR. US readers are closely matched in the UK, followed by Germany, Russia, France, Belgium, Poland, Netherlands, Switzerland and Turkey.

This is a 'thank you' to everyone who reads the blog, has contributed to it, and who has written to me about it. I am very pleased people find it useful and I am delighted by the small but hopefully growing community it creates.

I would very much like to see more guest posts on the blog in the near future so if you have something you would like to post please do get in touch about it - the blog is made much better by your input!

I look forward to reporting on further ECHR developments during the rest of 2013 and beyond.






Monday, 10 June 2013

Alekseyev v Russia - update on Committee of Ministers consideration

At its second quarterly meeting held on 4-6 June (1172DH meeting) to supervise the execution of judgments by the European Court of Human Rights, the Committee of Ministers of the Council of Europe have again considered the compliance of the Russian Federation with the Court's judgment in Alekseyev v Russia. This follows up on previous considerations by the CoM which I summarised in March.

The CoM are continuing to focus on two distinct sets of issues arising from the Court's judgment. First, the continuing refusal to allow the applicant permission to hold a gay rights parade in Moscow (individual measures). Second, the enactment and impact of 'homosexual propaganda' laws in several regions of Russia and the likely enactment of similar federal legislation (general measures). 

Individual measures 

In terms of the individual measures, the CoM note that the 'situation in Moscow does not seem to have changed considerably since the delivery of the Court’s judgment'. Therefore, the CoM acknowledge that three years after the Court's judgment and nine years after the applicant was first refused permission to hold a gay rights demonstration, that the Russian authorities have not implemented measures to redress the situation. 

The CoM note that while the Moscow authorities continue to rely, as they often have, on claims that gay rights demonstrations raise security issues, that their 'examination of the relevant decisions and judgments disclose nothing in their reasoning which would allow concluding that they were based on a thorough and objective assessment of the situation, as required by the Court’s judgment'.

The CoM, recognising that the continued refusal of the applicant's request to hold a public assembly, and noting the widespread refusal for similar events across Russia, concluded that this constitutes a complex set of problems that should be considered under general measures. 

General measures

The CoM paid particular attention to the enforcement of provisions in the Assemblies Act. According to the Assemblies Act no public event can be prohibited and if the authorities do not deem a proposed time and place for an event to be suitable then they must offer an organiser an alternative corresponding to the social and political objectives of the event. The organiser should then reach an agreement with the authorities and, if no agreement is reached, the organiser can appeal to courts which should issue a judgment as soon as possible and in any event before the planned date of the event. A problem has been that, even where domestic courts have overturned refusals, these have been issued long after the planned date of an event. These are issues which the CoM go on to consider in light of an opinion by the Venice Commission on the Assemblies Act. 

In light of the continuing problems with the lack of enforcement of the provisions in the Assemblies Act the CoM concluded that this element should be included in the action plan that it has previously requested the Russian government to issue. It stated that the ongoing problems raise issues about the 'quality of the legal and regulatory framework governing the procedure for the organisation of the public events'.

Specifically, on the issue of the 'security risk' of gay rights marches the CoM concluded: 'additional training and awareness raising measures are necessary, in particular for the authorities responsible for the assessment of such a risk'.

Decisions

The formal decisions adopted at this meeting were:

The Deputies
  1. noted with concern the persistent refusals by the competent authorities of Moscow to grant authorisation for the public events planned by the applicant, thus allowing the situation criticised by the Court in its judgment to persist;
  2. noted with regard to the general measures that a number of training and awareness-raising activities were organised for the local authorities and that in some regions public events similar to those described in the judgment have taken place;
  3. regretted however that despite the training and awareness-raising activities, the number of the refusals to grant authorisation for the similar events remains high, and noted in this respect the significant divergences in the implementation of the Assemblies Act by the competent authorities and the courts, notwithstanding the clarifications given by the Constitutional Court;
  4. therefore strongly reiterated their invitation to the Russian authorities to present a comprehensive action plan for the execution of the present judgment, which should, in particular, describe the measures aiming at [1] ensuring proper assessment of the security risk by the competent authorities, notably through training and awareness raising activities of the competent administrative and judicial authorities; [2] clarifying and harmonising the implementation of the Assemblies Act, notably through legislative action; [3] ensuring coherence of the domestic judicial practice regarding disputes concerning the organisation of public events;
  5. strongly encouraged the Russian authorities, in the framework of the adoption of such measures, to take into account the Opinions of the Venice Commission on the Russian Assemblies Act;
  6. noted moreover with interest that the draft Code on Administrative Justice pending before the Parliament contains special provisions to ensure that disputes relating to the organisation of public events are resolved by the domestic courts before the date of the planned events and invited the Russian authorities to provide further information in this respect.


******

My analysis of Alekseyev v Russia can be found in Human Rights Law Review or on the website of the Inter-American Court of Human Rights:
http://www.corteidh.or.cr/tablas/r27001.pdf 

My working paper on the 'homosexual propaganda' laws can be found here:

And my comment on Russia's 'homosexual propaganda' laws can be found in Jurist:
http://jurist.org/hotline/2011/12/paul-johnson-russia-lgbt.php