Wednesday, 29 January 2014

Seminar at the University of York

I am really pleased to post details of an event that we will host at the University of York. Please get in touch if you would like to attend or want more details.

Sexual Orientation and the European Convention on Human Rights: Voices and Perspectives

Friday 16th May 2014, 10am–3pm

University of York

Heslington Hall, The Feilden Room (H/G09)

The Department of Sociology at the University of York is pleased to host a one-day seminar organized to explore sexual orientation and human rights in contemporary Europe. The seminar will bring together a range of stakeholders – from the European Court of Human Rights, the legal profession, academia, and LGBT NGOs – to discuss the current state of rights relating to sexual orientation under the European Convention on Human Rights.

Individuals began making complaints under the European Convention on Human Rights about sexual orientation discrimination in 1955. Since the first successful complaint in 1981, the European Court of Human Rights has issued judgments in respect of a wide range of issues relating to discrimination experienced by gay men and lesbians. Whilst the Court has often upheld complaints about sexual orientation discrimination and evolved human rights protection for sexual minorities, it also continues to reject many complaints on crucial issues such as discrimination in respect of marriage and aspects of family life.

This round-table seminar is designed to encourage in-depth, cross-disciplinary and focused discussion on a range of pressing issues relating to sexual orientation discrimination in the 47 states of the Council of Europe. We welcome attendance from all those who have an interest in sexual orientation, human rights and the European Convention on Human Rights.

Confirmed participants are:

Nikita Ivanov, Registry of the European Court of Human Rights
Dr. Marc de Werd, Justice in the Amsterdam Court of Appeal
Dr. Loveday Hodson, University of Leicester
Prof. Robert Wintemute, King’s College London
Jeffrey Dudgeon MBE, LGBT activist and applicant in Dudgeon v the UK 

Participation is free, and refreshments/lunch will be provided, but places are limited. To book a place please email paul.johnson@york.ac.uk

A full programme will be available soon

A flyer is available here

Sunday, 26 January 2014

Dissertation on sexual orientation and the ECHR

McGill University have digitised and made available a dissertation written in 1999 (for a Master of Law degree) by Jacob Strandgaard Andersen titled 'Sexual Orientation: Prospects and Perspectives of a Changing Norm in International Law'. The work is 15 years old, but useful for its discussion of the early jurisprudence of the Court and former Commission. It can be found here:

http://digitool.library.mcgill.ca/webclient/StreamGate?folder_id=0&dvs=1390728240676~40



Thursday, 23 January 2014

Civil partnership consultation launched in England and Wales

The UK Government have launched a consultation on civil partnership in England and Wales. Its purpose is to establish the future of civil partnership (currently only available to same-sex couples) now marriage is available to same-sex couples and specifically whether, if retained, civil partnership should be made available to opposite-sex couples. 

The consultation document contains a consideration of the compatibility of maintaining civil partnership only for same-sex couples with the European Convention on Human Rights:

The Government is satisfied that its decision to retain civil partnership for same sex couples only is compatible with the Convention. Even if an opposite sex couple were able to show that the difference in treatment compared to a same sex couple is within the ambit of Article 8, because the ability to form a civil partnership concerns family life, and to show that the treatment is based on a personal characteristic or status, such as sexual orientation, it is the Government’s view that it is within a State’s margin of appreciation to recognise different forms of relationship for same sex and opposite sex couples. 

This is an interesting invocation of the margin of appreciation because the Government provide no references to Strasbourg case law to support their claim. 

Whilst it is easy to find examples in the Court's recent case law to support the Government's argument, it is also easy to find examples that challenge this understanding of the margin of appreciation. For example, in Kozak v Poland, the Court stated:

when the distinction in question 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.

If the Court accepted that excluding opposite-sex partners from civil partnership created a distinction that operated in an intimate and vulnerable sphere of private life, and that the reason for treating opposite-sex couples differently was based solely on sexual orientation, then, according to Kozak, the distinction in question would amount to a violation of Article 14 taken in conjunction with Article 8 of the Convention. 

No doubt, over the coming weeks, the question of the Convention (and the margin of appreciation) will be much debated. 

Monday, 20 January 2014

Updated ECHR fact sheet

The European Court of Human Rights has updated its 'Discrimination: Sexual Orientation' fact sheet.

This can be found here:

http://www.echr.coe.int/Documents/FS_Sexual_orientation_ENG.pdf


Thursday, 16 January 2014

Aghdgomelashvili and Japaridze v Georgia - newly communicated complaint

The European Court of Human Rights has communicated the complaint in Aghdgomelashvili and Japaridze v Georgia, in which the applicants, who work for the organization 'Inclusive Foundation', complain about homophobic treatment by police officers. 

The complaint focuses on a raid by the police of the office of 'Inclusive Foundation' in Tbilisi, in which the police used homophobic language (such as calling the applicants 'sick persons' and 'perverts') and subjected the applicants to humiliating treatment (such as strip searching them).

Complaints

  1. Citing Articles 3 and 8 of the Convention, the applicants complain that the police officers subjected them to inhuman and degrading treatment and unlawfully interfered with their private lives during the search of the IF office on 15 December 2009 and that the relevant authorities failed to conduct an effective investigation of their alleged ill-treatment.
  2. The applicants reiterate their complaint about the absence of an effective investigation under Article 13 of the Convention, in conjunction with Articles 3 and 8.
  3. Lastly, the applicants complain, under Article 14 of the Convention and Article 1 of Protocol No. 12, that their ill-treatment, the interference with their private lives as well as the absence of an effective investigation into the police abuse was conditioned by the relevant authorities’ discriminatory attitudes towards the applicants’ actual or perceived sexual orientation and/or their LGBT-related activities.

Questions to the Parties

  1. Did the applicants suffer ill-treatment and interference with their right to respect for their private lives, in breach of Articles 3 and 8 of the Convention, during the police raid on the office of the Inclusive Foundation on 15 December 2009?
  2. Have the competent domestic authorities conducted an adequate investigation into the applicants’ allegations of ill-treatment, as required by the procedural obligation under Article 3 of the Convention?
  3. Did the applicants have effective domestic remedies at their disposal for their complaints under Articles 3 and 8 of the Convention concerning the alleged ill-treatment and interference with their right to respect for their private lives, as required by Article 13 of the Convention?
  4. Have the applicants suffered discrimination on the ground of their actual and/or perceived sexual orientation contrary to Article 14 of the Convention, this provision being read in conjunction with Articles 3 and 8, and/or Article 1 of Protocol No. 12?

An important complaint

This is an important complaint, because of its reliance on Article 3. It provides the Court with the opportunity to further evolve its Article 3 jurisprudence in respect of sexual orientation discrimination. At present, only one such judgment exists and it is vital that the Court better establish that homophobic treatment of this type is degrading and contrary to Article 3 of the Convention. 

Tuesday, 7 January 2014

Orlandi and Others v Italy - newly communicated case

The European Court of Human Rights has communicated the case of Orlandi and Others v Italy in which six same-sex couples complain about their inability to have their marriage recognised in Italy.

The six same-sex couples were all married whilst abroad (in Canada, the United States, and the Netherlands) and complain about the refusal of the Italian 
domestic authorities to recognise their marriage. 

Italy does not provide any recognition of same-sex relationships, either by way of civil partnership or marriage.

Complaint to the Court

All of the applicants complain that they are being discriminated against, in the enjoyment of their rights protected by the Convention, on the basis of their sexual orientation.

They complain, specifically, about the authorities’ refusal to register their marriage contracted abroad and more generally about the impossibility of obtaining recognition of their relationship in Italy.

They invoke Articles 8, 12 and 14.

Questions to the Parties

The Court has issued the following questions:
  1. Was the interference with the applicants’ right to respect for their private and family life, namely the refusal to register their marriage contracted abroad, in accordance with the law and necessary in terms of Article 8 § 2?
  2. Has there been a violation of the applicants’ right to respect for their private and family life contrary to Article 8 of the Convention, in particular in so far as they had no other possibility to have their relationship recognised by law?
  3. In what specific ways are the applicants disadvantaged by the lack of any legal recognition of their relationship?
  4. Have the applicants suffered discrimination in the enjoyment of their Convention rights on the ground of their sexual orientation, contrary to Article 14 of the Convention read in conjunction with Article 8 and/or 12 of the Convention, in respect of their inability to (i) register their marriage and (ii) enter into any other type of civil union recognising their relationship in Italy?
The same situation is about to end in England and Wales

In Wilkinson v Kitzinger (2006) Sue Wilkinson and Celia Kitzinger, a same-sex couple who had legally married in Canada, complained that on their return to the UK their marriage was not recognized as valid and, under provisions contained in S.215 of the Civil Partnership Act 2004, was treated as a 'civil partnership' (a status not available to the applicants in Orlandi and Others v Italy). In his consideration of the complaint in respect of the Convention, and in particular Article 12, the President of the Family Division of the High Court said: 'to accord a same-sex relationship the title and status of marriage would be to fly in the face of the Convention'.

Thankfully, 8 years later, S.10 of the Marriage (Same Sex Couples) Act 2013 makes provision for same-sex marriages contracted outside of the United Kingdom to be recognised in England and Wales. 

Same-sex couples married abroad, like Sue Wilkinson and Celia Kitzinger, will be the first same-sex couples to be legally recognised as married in England and Wales when (if as announced) the relevant parts of the 2013 Act are commenced on Thursday 13 March 2014.


Thursday, 2 January 2014

Happy New Year and updated cases list

Happy New Year 2014!

I have uploaded an updated 'sexual orientation case list' which can be found here:

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

As ever, please let me know if there are any inaccuracies. 

***

For the first time, I have included Zontul v Greece in the list of cases. Although the applicant in this case is a homosexual, and although the Court found a violation of Article 3 in respect of his complaint about treatment whilst in detention (rape) and the response of public authorities to it, the issue of sexual orientation discrimination was not considered a relevant aspect by the Court. Whilst the applicant argued that his sexual orientation motivated the rape, the twin issues considered by the Court - regarding the acts committed against him and the subsequent treatment of the offender by the criminal justice system - it did not consider the issue of sexual orientation. In the Court's legal summary and press release and in other independent summaries (for example: by the Netherlands Institute of Human Rights) the issue of homosexuality or sexual orientation is not mentioned. However, whilst the Court does not deal with the issue of homosexuality or sexual orientation in its judgment, I now include it in the list on the basis that the judgement does address the important issue of the rape of a male as a form of torture. Therefore, although the judgment in X v Turkey remains the only judgment by the Court in which a complaint relating to sexual orientation discrimination under Article 3 (and 14) has been upheld - for details see my previous posts, and Antoine Buyse's commentary on the ECHR Blog - Zontul v Greece can be regarded as important in respect of how public authorities deal with the rape of men (whether or not they identify as, or are perceived to be, gay).