Wednesday, 27 November 2013

Updated factsheets from the Court and list of sexual orientation cases

The European Court of Human Rights has updated its factsheets for 'Homosexuality: criminal aspects' and 'Sexual Orientation'.

Both factsheets were updated this month and give details and links to various important pending cases, including:


Note that the criminal aspects factsheet lists Georgescu v Romania as pending but, as I reported two weeks ago, the Court have deemed this complaint inadmissible.

***

I have also updated the chronological list of ECHR sexual orientation complaints to include recent decisions and judgments and have made some other small additions and corrections.

The updated list can be found here:

https://docs.google.com/file/d/0ByFm9fY-KH05bl8xekNXdGc2Zkk/edit?usp=sharing&pli=1



Monday, 25 November 2013

Isle of Man: repeal your discriminatory laws and join the twenty-first century

A year ago I published an article in Jurist 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.

That law still exists and, as a consequence, gay men living on the Isle of Man continue to inhabit a legal environment which criminalizes consensual sexual practices in which they might engage.

Isle of Man law

By virtue of S.9 Sexual Offences Act 1992 the Isle of man continues to criminalize the 'unnatural offences' of 'buggery' and 'gross indecency' - offences which have been repealed in England and Wales, Scotland and Northern Ireland.

S.9(1) of the 1992 Act which covers buggery is written in gender-neutral terms, but S.9(4) which covers gross indecency relates 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) specifies that buggery and gross indecency shall not be treated as being in private if 'more than 2 persons are present' or an act is done in 'any place to which the public have or are permitted to have access, whether on payment or otherwise'.

The 1992 Act also maintains a total prohibition on buggery and gross indecency aboard merchant ships, but only in relation to men. S.10(3) of the 1992 Act states that the provisions that partially decriminalize buggery and gross indecency do 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). Any consensual sexual act committed between adult men serving as crew on a Manx merchant ship will therefore constitute a criminal offence.

Why is this problematic?

The mere existence of criminal law which subjects homosexual sexual acts to heightened regulation is a form of discrimination unacceptable under international human rights law.

Although the Isle of Man is a Crown dependency and not constitutionally part of the UK, it is contracted to the European Convention on Human Rights through its relationship with the UK and has also incorporated the Convention into its domestic law through its own Human Rights Act 2001.

It is not difficult to find Convention jurisprudence that makes the law in the Isle of Man appear very problematic.

In respect of the specific offences of buggery and gross indecency that subject homosexual acts to greater regulation there is ample case law which states that this form of differentiation on the basis of sexual orientation amounts to discrimination contrary to Article 14 taken in conjunction with Article 8 of the Convention. For example, in Kozak v Poland the European Court of Human Rights held that:
When [a] distinction [...] operates in this intimate and vulnerable sphere of an individual's private life, particularly weighty reasons need to be advanced before the Court to justify the measure complained of. Where a difference of treatment is based on sex or sexual orientation the margin of appreciation afforded to the State is narrow and in such situations the principle of proportionality does not merely require that the measure chosen is in general suited for realising the aim sought but it must also be shown that it was necessary in the circumstances. Indeed, if the reasons advanced for a difference in treatment were based solely on the applicant's sexual orientation, this would amount to discrimination under the Convention (emphasis added).
Singling out adult male homosexual acts for specific legal regulation is most certainly an interference with an 'intimate and vulnerable sphere' of private life and is unquestionably based solely on sexual orientation.

The Court has also 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. 

In regard to the total prohibition on male homosexual sex among members of crews aboard merchant ships, this is contrary to the Court's interpretation of Article 8 of the Convention. It is unlikely that, following Dudgeon v the United Kingdom, the Court would accept that criminalizing homosexual acts on board merchant ships was a proportionate response to meeting a pressing social need. In Smith and Grady v the United Kingdom, the Court held that making homosexual acts a ground for dismissal from a workplace is a violation of Article 8 of the Convention. Therefore, the criminalization of adult homosexual acts would almost certainly be deemed to be a violation of the right to respect to private life guaranteed by Article 8 of the Convention.

What should be done?

The Isle of Man needs to revise its sexual offences provision urgently. It needs 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 UK Government should also act to remedy this situation. Under the terms of the relationship between the UK and the Crown Dependencies the 'Ministry of Justice examines legislation [of the Isle of Man] to ensure in particular that there is no conflict with international obligations'.

There are clear inconsistencies between Isle of Man and international human rights law in respect of consensual sexual acts committed between adult men.  



Saturday, 23 November 2013

Second Reading of UK 'Withdrawal from the European Convention' Bill postponed

The UK House of Commons was scheduled to consider the Private Member's 'Withdrawal from the European Convention of Human Rights and Removal of Alleged Terrorists' Bill next Friday. This has now been postponed until February of next year. 

Although this Bill is unlikely to be successful it will be interesting to see if it receives any Parliamentary debate and, if so, what the content of that debate is. 

Will the Bill provide the parliamentary platform for those MPs who, as Justice Secretary Chris Grayling put it two days ago, feel the Court's jurisprudence is now 'too far away from the original intentions of its creators to be acceptable'?


Thursday, 14 November 2013

Georgescu v Romania - inadmissible

The Third Section of the European Court of Human Rights have deemed the complaint in Georgescu v Romania inadmissible.

The facts

The applicant, Mr Adrian Costin Georgescu, is a Romanian national and a member of the non-governmental organisation ACCEPT which campaigns against discrimination on the grounds of sexual orientation in Romania.

The applicant's complaint related to his questioning by the police on 19 December 2000 as part of a murder investigation in which the victim was a homosexual.

The applicant was telephoned by a police sergeant and asked to attend police headquarters but was not informed of the reasons for this request. When he attended the police station he was interviewed, again without being given information about the nature of the investigation. During the interview the interviewing officer asked the applicant questions about his sexual orientation. 

The applicant claimed that he was emotionally traumatised by the police interview. 

On 27 December 2000 and 15 January 2001, the applicant filed two complaints in respect of abuse of office and abusive behaviour in respect of his treatment by the police. Failure of these complaints resulted in the applicant, assisted by ACCEPT, filing a complaint with the Supreme Court of Justice. That complaint was recorded at the Supreme Court of Justice on 29 November 2001 but the applicant was not contacted or informed of the outcome of his complaint.

In 2010 the applicant asked the High Court of Cassation and Justice (former Supreme Court) about the progress of the complaint. By letter dated 28 January 2010, the High court informed the applicant that there was no record of his complaint.

Complaint

The applicant complained, inter alia, that the investigations on 19 December 2000 by the police violated his rights under Articles 3, 8, 13 and 14 of the Convention.

The applicant complained that during the interrogation he was subject to inhuman and degrading treatment because of the content of the interrogation and the fact that he was photographed and his fingerprints were taken. He also complained that he was the victim of discrimination based on sexual orientation.

Court decision

Drawing on its judgment in Smith and Grady v the United Kingdom the Court held that the interrogation and investigation did not reach the minimum level of severity to fall within the scope of Article 3 of the Convention.

In respect of the other aspects of the complaint under Articles 8, 13 and 14 the Court did not consider the merits. 

Rather, the Court rejected the applicant's complaint under Article 35 of the Convention for being out of time because it was made six months after the final decision of the domestic authorities. 

Although the applicant had filed a complaint with the Supreme Court and had not heard back from them, the Court held that he should have realised that the case was not progressing and contacted the Supreme Court. The Court stated that, instead of undertaking this action, the applicant 'remained completely passive for more than a year without demonstrating the existence of specific circumstances that could justify [...] his inaction'. 

On the basis of its conclusion under Article 35, the Court deemed the application inadmissible. 


Monday, 11 November 2013

Consensus analysis in Vallianatos and Others v Greece

Further to my post on the ECHR Blog in respect of Vallianatos and Others v Greece, I have been reflecting more on the use of consensus analysis in the judgment.

Here is what I wrote on the ECHR Blog:

A further interesting feature of the Court’s review is its discussion of European consensus on partnership rights. The Court noted that ‘although there is no consensus among […] member States, a trend is currently emerging with regard to the introduction of forms of legal recognition of same-sex relationships’ and cited the existence of ‘seventeen member States [that] authorise some form of civil partnership for same-sex couples’. In light of this, the Court stated that ‘the trend emerging in […] member States is clear: of the nineteen States which authorise some form of registered partnership other than marriage, Lithuania and Greece are the only ones to reserve it exclusively to different-sex couples’. The Court, therefore, observes that Lithuania and Greece are out-of-step with the other seventeen states that have an alternative system to marriage for recognizing relationships and make this available to same-sex couples. However, as if to further justify the relevance of this ‘clear trend’ to its judgment, the Court states:

‘In other words, with two exceptions, Council of Europe member States, when they opt to enact legislation introducing a new system of registered partnership as an alternative to marriage for unmarried couples, include same-sex couples in its scope’.

This statement, as I read it, is factually problematic because some member states among the seventeen said to constitute the ‘clear trend’ (that is the states, excluding Greece and Lithuania, that have civil partnership legislation that extends to same-sex couples) did not enact civil partnership legislation as ‘an alternative to marriage for unmarried couples’. In the United Kingdom, for example, because opposite-sex couples are excluded from registering a civil partnership (and have no alternative to marriage) the Civil Partnership Act 2004 cannot be described as ‘a new system of registered partnership as an alternative to marriage for unmarried couples’ that was designed to ‘include same-sex couples in its scope’. The Court seems to suggest that there is a ‘trend’ in Europe for introducing legislation to make available to all unmarried couples an alternative system of registered partnership and that Greece and Lithuania are out of step with this. But the trend is not as simple as this as not all contracting states that enacted civil partnership legislation made it available to all married couples (as in the United Kingdom) and, therefore, those states are not pursuing the objective implied by the Court. In the case of the United Kingdom, for example, the ambition of the Civil Partnership Act 2004 was not to offer ‘unmarried couples’ an alternative system to marriage but to offer same-sex couples a system of partnership registration that was not marriage. In addition to this, opponents of same-sex partnership rights will point out that Greece is not out-of-step in withholding partnership rights to same-sex couples and, on the contrary, is in line with the majority of other contracting states. Therefore, the Court’s consensus analysis as a basis for supporting its judgment bears (as is often the case) some additional scrutiny. This is especially so since the consensus argument of the majority is invoked by Judges Casadevall, Ziemele, Jočienė and Sicilianos in their joint concurring opinion to justify their decision in this case as opposed to their dissenting position taken in X and Others v. Austria.

The key issue for me in respect of the Court's use of consensus analysis is its statement that 'member States, when they opt to enact legislation introducing a new system of registered partnership as an alternative to marriage for unmarried couples, include same-sex couples in its scope’.

A closer look at the Court's claim

The key question asked by the Court in Vallianatos and Others v Greece was 'whether the Greek State was entitled, from the standpoint of Articles 14 and 8 of the Convention, to enact a law introducing alongside the institution of marriage a new registered partnership scheme for unmarried couples that was limited to different-sex couples and thus excluded same-sex couples'?

To answer that question, the Court relied upon data relating to same-sex marriage and civil partnership legislation in Europe.

The most important aspect of the Court's data is as follows:

'The comparative law material available to the Court on the introduction of official forms of non-marital partnership within the legal systems of Council of Europe member States shows that [...] seventeen member States (Andorra, Austria, Belgium, the Czech Republic, Finland, France, Germany, Hungary, Iceland, Ireland, Liechtenstein, Luxembourg, the Netherlands, Slovenia Spain, Switzerland and the United Kingdom) authorise some form of civil partnership for same-sex couples'.

It is from this that the Court draws its conclusion that: 

'...the trend emerging in the legal systems of the Council of Europe member States is clear: of the nineteen States which authorise some form of registered partnership other than marriage, Lithuania and Greece are the only ones to reserve it exclusively to different-sex couples [...] In other words, with two exceptions, Council of Europe member States, when they opt to enact legislation introducing a new system of registered partnership as an alternative to marriage for unmarried couples, include same-sex couples in its scope'.

Does the data provided by the Court support its statement that there is a clear trend that states are introducing an alternative system to marriage for unmarried couples, including same-sex couples within its scope, and that Greece and Lithuania are outliers?

Of the 17 contracting states included in the Court's list, the following can be observed:


  • Iceland should not be included in the list because, since 2010, it no longer provides civil partnerships for same-sex couples but enables all couples (regardless of sex) to marry. In this sense, Iceland is similar to Denmark, Norway and Sweden - they are all countries that introduced civil partnerships for same-sex couples and then replaced them with full marriage recognition.
  • The only countries that have made available an alternative system to marriage for unmarried couples and included same-sex couples within its scope are: Andorra, Belgium, France, Luxemburg, the Netherlands and Spain (6).
  • The countries that have made civil partnerships available exclusively for same-sex couples and offer unmarried opposite-sex couples no alternative to marriage are: Austria, the Czech Republic, Finland, Germany, Hungary, Ireland, Liechtenstein, Slovenia, Switzerland and the United Kingdom (10).


The first conclusion to be drawn from this is that only 6 contracting states can be cited in support of the claim about a trend of states enacting 'legislation introducing a new system of registered partnership as an alternative to marriage for unmarried couples [that] include[s] same-sex couples in its scope'.
The second conclusion is that a larger group of contracting states can be cited to contradict the claim about a trend because 10 states did not enact legislation to provide an alternative to marriage for unmarried couples. In limiting civil partnerships to same-sex couples to whom marriage was not available these states provided no alternative to marriage to any unmarried couple (the word 'alternative' implies choice).
The third conclusion is that Greece and Lithuania are not outliers in Europe in respect of a trend regarding partnership recognition as presented by the Court. In not making partnership registration available to same-sex couples, these two states simply conform to the majority position in Europe which is to not provide same-sex couples with any form of partnership recognition.

Ultimately, therefore, although it is correct to observe, as the Court does, that 'of the nineteen States which authorise some form of registered partnership other than marriage, Lithuania and Greece are the only ones to reserve it exclusively to different-sex couples' it is not correct to conclude that 'with two exceptions, Council of Europe member States, when they opt to enact legislation introducing a new system of registered partnership as an alternative to marriage for unmarried couples, include same-sex couples in its scope'.
Does the substance of consensus analysis matter?
In one sense, the fine detail of the Court's consensus analysis may appear unimportant - especially if one believes (as I do) that the Court ultimately reached the correct conclusion in Vallianatos and Others v Greece.
However, the methods by which the Court reaches its judgments are of crucial importance.
This is because, from a closer inspection of the data provided, it becomes clear that it would have been perfectly prossible for the Court to reach a different judgment in this case on the basis of consensus analysis. The Court could have stated, for instance, that a wide margin of appreciation was available to Greece because of an absence of consensus in Europe in respect of the arrangements relating to marriage and civil partnership. The Court could have stated that because contracting states are so divided on whether to offer  an alternative to marriage to opposite sex couples (in some states, such as Hungary, the suggestion to offer an alternative to marriage to opposite-sex couples caused a major constiutional event) that no conclusion could be drawn in respect of the situation in Greece.
In my view, consensus analysis was irrelevant to Vallianatos and Others v Greece and the Court should not have invoked it. Although, as I have argued elsewhere, the Court uses consensus analysis as a device to legitimize its reasoning, it is often highly problematic.
In my opinion, the reason the Court relied on consensus analysis in this case was because it simply asked the wrong question. Instead of asking the question it did ('whether the Greek State was entitled, from the standpoint of Articles 14 and 8 of the Convention, to enact a law introducing alongside the institution of marriage a new registered partnership scheme for unmarried couples that was limited to different-sex couples and thus excluded same-sex couples'?) the Court should have considered whether the absence of any available partnership recognition for the applicants was in principle a form of discrimination contrary to Article 14 taken in conjunction with Article 8.

Friday, 8 November 2013

Thursday, 7 November 2013

Two significant ECtHR judgments today in respect of same-sex civil partnership rights and the retention of criminal records for historic offences

The European Court of Human Rights has today issued two significant judgments in respect of sexual orientation.

Vallianatos and Others v Greece

In Vallianatos and Others v Greece the Grand Chamber held by 16-1 that a Greek law that enables only opposite-sex couples to register a 'civil union' is, in the absence of convincing and weighty reasons capable of justifying the exclusion of same-sex couples, in violation of Article 14 taken in conjunction with Article 8 of the Convention. 

This is an important judgment and I will be providing a commentary on it soon on the ECHR Blog.

E.B. and Others v Austria

In E.B. and Others v Austria, four applicants complained to the Court about the existence of criminal records in respect of historic convictions under Article 209 of the Criminal Code. 

Article 209 of the Criminal Code, in force until 14 August 2002, dealt with consensual homosexual acts in the following terms: 

A male person who, after attaining the age of nineteen, fornicates with a person of the same sex who has attained the age of fourteen years but not the age of eighteen years, shall be sentenced to imprisonment of between six months and five years.

Article 209 effectively maintained a different 'age of consent' for male homosexual acts to that set for opposite-sex acts and same-sex acts between women.  

In 2002 the Constitutional Court of Austria found that Article 209 was unconstitutional

In L. and V. v Austria the European Court of Human Rights held that Article 209 of the Criminal Code 'embodied a predisposed bias on the part of a heterosexual majority against a homosexual minority, [and that] these negative attitudes cannot of themselves be considered [...] to amount to sufficient justification for the differential treatment any more than similar negative attitudes towards those of a different race, origin or colour'. It accordingly found a violation of Article 14 of the Convention taken in conjunction with Article 8.

In the present case, the applicants stressed that their complaints did not concern their original convictions under Article 209 of the Criminal Code, but 'the social stigma which still attached to their convictions even today'. They argued that the 'criminal record of their convictions was accessible to law-enforcement authorities and also appeared in their character references (Leumunds­zeugnis)'. They also argued that 'the maintaining of the entry extended the period for which other convictions had to remain on their criminal records [and], [m]oreover, criminal courts could take such convictions as an aggravating circumstance in subsequent criminal proceedings'.

In its consideration of the applicants' complaint under Article 14 of the Convention read in conjunction with Article 8 the Court noted that under Austrian law '[t]he mere fact that a criminal conviction that occurred in the past was based on a legal provision which has lost its force of law will normally have no bearing on the conviction’s remaining on the person’s criminal record, as it concerns essentially a fact from the past. Abolishing an offence or substantially modifying its essential elements does not mean that the provision, at the time it was in force and applied, did not meet all the requirements under constitutional law'.

The Court went on to state that the 'situation is different, however, as regards convictions under Article 209 of the Criminal Code. Parliament repealed and replaced Article 209 by a substantially different provision because the Constitutional Court had found that it was not objectively justified and therefore unconstitutional, and the Court had found that convictions under that provision violated Article 14 of the Convention read in conjunction with Article 8'. 

The Court stated, therefore, that 'the present case requires a different response by the legislator'. 

The Court concluded:

'Since keeping an Article 209 conviction on someone’s criminal record may have particularly serious consequences for the person concerned, the legislator, when amending the relevant legal provision in order to bring it into conformity with modern standards of equality between men and women, should have provided for appropriate measures, such as introducing exceptions to the general rule [in respect of retaining criminal records]'.

Because the Austrian government had given no explanation for retaining the criminal records the Court held that there had been a violation of Article 14 of the Convention taken in conjunction with Article 8.

Rechtskomitee LAMBDA (RKL) are very pleased with this result and have already urged 'Austrian law-makers to pass the Amnesty, Rehabilitation and Compensation Act' in light of the Court's judgment. 


Tuesday, 5 November 2013

Bayev v Russia - challenging 'homosexual propaganda' laws

The European Court of Human Rights have communicated the complaint in Bayev v Russia.

The three applicants complain about their arrest and conviction under regional administrative laws regulating public actions aimed at propaganda of homosexuality among minors.

The applicants complain under Article 10 of the Convention 'about the ban on public statements concerning the identity, the rights and social status of sexual minorities'. They argue that 'the prohibition of “homosexual propaganda” introduced by the recent legislation constitutes a blanket ban on the mere mention of homosexuality and that it applies irrespective of the content of the message'.

The applicants also complain that the 'blanket ban' on mentioning homosexuality is discriminatory and therefore in breach of Article 14 of the Convention.

The Court has communicated the following questions to the parties:
  1. Has there been a violation of the applicants’ right to freedom of expression, contrary to Article 10 of the Convention?
  2. Do Russian legal provisions governing administrative liability for “propaganda of homosexuality among minors” meet the “quality of law” requirements contained in Article 10 § 2 of the Convention?
  3. Have the applicants suffered discrimination in the enjoyment of their Convention rights, contrary to Article 14 of the Convention read in conjunction with Article 10?
This is a significant complaint given the subsequent enactment of federal law regulating 'propaganda of non-traditional sexual relations among minors'.

If the Court upholds the applicants' complaint it will be the first time that it has found a violation of Article 10 of the Convention in respect of a complaint brought by a homosexual applicant.