Thursday, 31 December 2015

2015 - the year in review

In respect of complaints about sexual orientation discrimination, 2015 was a somewhat quiet year for the European Court of Human Rights, at least in relation to the volume of decisions and judgments given. However, the Court did issue several important judgments that made 2015 a significant year...
In April, the Court issued its judgment in M.E. v Sweden, striking the case from its list. I wrote about the case here, criticising the Court for continuing to 'dodge' the question of whether returning a gay man or lesbian to a state outside of the Council of Europe that criminalizes homosexual sexual acts amounts to a violation of the European Convention on Human Rights.
In May, the Court issued a ground-breaking judgment in Identoba and Others v Georgia. I wrote about the judgment being a historic step forward for gay and lesbian human rights because the Court recognised, for the first time, that violent and abusive treatment of individuals assembling in public to peacefully demonstrate about issues relating to sexual orientation amounts to a violation of Article 3 of the Convention.

In July, the Court issued a further ground-breaking judgment, in Oliari and Others v Italy, in which it found, for the first time, that the inability of same-sex couples to gain some form of legal recognition of their relationships other than marriage, in a country which only offers marriage to different-sex couples, amounts to a violation of the Convention. Simultaneously, the Court rejected the applicants' complaint that their inability to marry was a violation of the Convention. I wrote about the judgment being a significant development in the Court's case law, going beyond the judgment in Vallianatos and Others v Greece - in which the Grand Chamber of the Court found that making 'civil unions' available to different-sex couples but not to same-sex couples amounted to a violation of the Convention - and setting the strong precedent that Council of Europe states that fail to provide same-sex couples with some form of legal recognition (other than marriage) may be in violation of positive obligations under Article 8 of the Convention. However, in my view, the Court's decision to declare the Article 12 complaints manifestly ill-founded sent a very strong message that it has no intention of changing its position that, for all practical and effective purposes, the right to marry does not apply to same-sex partners.

In October, the Court struck the complaint in A.E. v Finland from its list. In doing so, I wrote about how it continued to 'dodge' ruling on the question of whether attempting to return a gay man or lesbian to a country that criminalises homosexual sexual acts amounts to a violation of the Convention. I detailed the history of similar complaints in the Court and asked whether the long-standing refusal to uphold complaints about Council of Europe states who seek to deport gay men and lesbians to countries that criminalise homosexual acts and, in some cases, punish them with death was 'shameful'.
May I take this opportunity to thank everyone who has read, commented on, and contributed to this blog throughout the year. In the time since I started this blog in February 2013, it has had 83,150 page views and, because of that, I have been put in contact with some fantastic people around the world.

Out of interest, the statistics page shows that readers of this blog come from virtually every country in the world, but the following table shows the Top Ten page views of all time by country:



I wish everyone, most sincerely, a very happy and prosperous New Year. 









Friday, 4 December 2015

Conference on "Fifty Years of Our Right to Apply to Strasbourg" in the UK

I am pleased to be participating in the following conference, to mark the 50th anniversary of the UK recognising the right of individual petition to the European Commission of Human Rights and subsequently the European Court of Human Rights.

The conference is organised by Professor Robert Wintemute and will be held at King's College London.

FIFTY YEARS OF OUR RIGHT TO APPLY TO STRASBOURG:
THE PAST (1966-2016) AND FUTURE OF
ACCESS TO THE EUROPEAN COURT OF HUMAN RIGHTS
FROM THE UNITED KINGDOM

Thursday, 14 January 2016
Edmond J Safra Lecture Theatre, King's Building (ground floor), Strand Campus

9:30-10:00 am - Registration and coffee

10:00-10:30 am - Opening remarks by the Director of the Centre of European Law
Takis Tridimas, Professor of European Law, King's College London

Opening remarks by the Chair of the conference
Sir Nicolas Bratza, Member of the European Commission of Human Rights (1993-98), Judge (1998-2012) and President (2011-12) of the European Court of Human Rights

50th birthday ceremony
Sir Nicolas will cut a birthday cake to mark the 50th anniversary of the UK's 14 January 1966 "Declarations ... recognising the competence of the European Commission of Human Rights to receive individual petitions and recognising as compulsory the jurisdiction of the European Court of Human Rights".

10:30 am-12:30 pm - Should our right to apply to Strasbourg be preserved?  Perspectives from civil society

Nuala Mole, founder of the AIRE Centre (Advice on Individual Rights in Europe)
Shami Chakrabarti, Director of Liberty (National Council for Civil Liberties)
Philip Leach, Professor of Human Rights Law, Middlesex University, Director of EHRAC (European Human Rights Advocacy Centre)
David Anderson QC, Independent Reviewer of Terrorism Legislation

12:30-1:30 pm - Lunch

1:30-3:00 pm - Should our right to apply to Strasbourg be preserved? Perspectives from the UK Parliament [and the Ministry of Justice]

THE CONSERVATIVES’ PROPOSALS FOR CHANGING BRITAIN’S HUMAN RIGHTS LAWS (3 October 2014):  "... Every judgement that UK law is incompatible with the Convention will be treated as advisory ... During the passage of the British Bill of Rights and Responsibilities, we will engage with the Council of Europe, and seek recognition that our approach [judgments are binding on 46 member states but not the UK] is a legitimate way of applying the Convention.  In the event that we are unable to reach that agreement, the UK would be left with no alternative but to withdraw from the European Convention on Human Rights, at the point at which our Bill comes into effect."

Lord Anthony Lester QC, counsel to the UK's first applicants to Strasbourg
Dominic Grieve QC MP, former Attorney General
Keir Starmer QC MP, former Director of Public Prosecutions
[Dominic Raab MP, Minister for Human Rights since May 2015, is unable to attend, but has been invited to send a representative of the Ministry of Justice]

3:00-3:30 pm - Coffee

3:30-5:00 pm - Should our right to apply to Strasbourg be preserved?  Perspectives from academia

Paul Johnson, Professor of Sociology, University of York
Bill Bowring, Professor of Law, Birkbeck, University of London
Elspeth Guild, Professor of Law, Queen Mary, University of London and Radboud University Nijmegen
Conor Gearty, Professor of Human Rights Law, London School of Economics

5:00-5:30 pm - Closing remarks
Robert Wintemute, Professor of Human Rights Law, King's College London

5:30-6:30 pm - Reception

To reserve your place please click here

Thursday, 22 October 2015

The European Court of Human Rights and gay asylum seekers: a shameful history?

In light of the recent decision by the European Court of Human Rights in A.E. v Finland - which continued the Court's long-standing refusal to uphold complaints about Council of Europe states who seek to deport gay men and lesbians to countries that criminalise homosexual acts and, in some cases, punish them with death - I have produced a summary of Strasbourg decision-making in this area since 1998. 

What this clearly demonstrates, in my view, are the various ways in which the Strasbourg organs have avoided creating any precedent that would provide those who seek asylum from persecution because of their sexual orientation with protection under the Convention. The Court has, for instance, often declared complaints inadmissible on the ground that an applicant could, once they were returned to their home country, be "discrete" about their sexual orientation. It has declared complaints inadmissible on the ground that it did not accept that the threat to an applicant was significant, despite the existence of criminal laws prohibiting all homosexual acts between adults. And it has, as in A.E. v Finland, struck complaints from its list because a government has, at the eleventh hour, granted an applicant a residence permit - this, despite the fact that, even when a complaint is resolved or discontinued by an applicant, the Convention requires the Court to "continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires" (Article 37). 

As long ago as 1978, the Court said that its 
"judgments [...] serve not only to decide those cases brought before the Court but, more generally, to elucidate, safeguard and develop the rules instituted by the Convention, thereby contributing to the observance by the States of the engagements undertaken by them as Contracting Parties" (Ireland v the United Kingdom). 
The Convention has been in force for 62 years and the Court has contributed nothing to elucidating, safeguarding and developing the human rights of people who, should they be returned by Council of Europe states to the countries they flee, are at risk of inhuman and degrading treatment and punishment, torture, and death. 

The message the Court currently sends to gay men and lesbians outside of Europe is this: if you are living in a country that criminalises you for being gay, and potentially puts you at risk of ill-treatment or death, and you manage to travel to a Council of Europe state that, on your arrival, wants to send you home, you have no protection against deportation under the European Convention on Human Rights. 

Whatever the reasons for the Court's approach to applications relating to asylum on the grounds of sexual orientation discrimination - be they judicial or, as is more likely, political (see the reference to "pragmatic" decision making in F. v the United Kingdom, below) - it is difficult to reach any other conclusion that the Court's reluctance to develop positive human rights protection in this area is shameful.


And now, a chronological summary of the complaints...

1998

In 1998 the former European Commission of Human Rights issued its decision in Sobhani v Sweden which concerned an application lodged in 1996 by an Iranian citizen who had arrived in Sweden in 1994 and applied for asylum. In May 1995 the National Immigration Board rejected the asylum application and ordered the applicant's expulsion to Iran. The applicant's appeal was rejected by the Aliens Appeals Board in 1996. 

In his complaint to the Commission, the applicant - invoking Articles 2, 3 and 8 of the Convention - claimed that he would be arrested and executed upon return to Iran on account of his homosexuality. 

In 1998, the Government quashed the expulsion order and granted the applicant a permanent residence permit. The Government requested that the Commission strike the application out of its list of cases and the applicant expressed the wish to withdraw his application. The Commission decided "as regards the issues raised in the present case, the Commission finds no reasons of a general character affecting respect for human rights, as defined in the Convention, which require the further examination of the application" and struck the case from its list.

2004 (I)

In 2004 the Court dealt with a complaint relating to asylum and homosexuality in F. v the United Kingdom. The applicant, an Iranian citizen born in 1973, and resident in Glasgow, had entered the United Kingdom illegally in April 2001 and, in May 2001, claimed asylum on the basis that he feared persecution as a homosexual. He stated that 
"security forces had come to his house because of a satellite television and had become suspicious of the double beds, which he used with his homosexual partner, along with his cousin and his partner. According to his account, all four were arrested for having a satellite dish and detained for four days and beaten. His partner confessed to being homosexual and they were remanded in custody. After being held in prison for three months and four days, he was released on the payment of bribes by his family who feared that he would face the death sentence as a homosexual". 
The applicant's application for asylum in the UK was unsuccessful and, at time the Court considered his complaint, he was subject to expulsion to Iran. 

The Court deemed the applicant's complaint inadmissible. In respect of Articles 2 and 3 of the Convention, the Court stated that 
"[a]lthough it must be acknowledged that the general situation in Iran does not foster the protection of human rights and that homosexuals may be vulnerable to abuse, the applicant has not established in his case that there are substantial grounds for believing that he will be exposed to a real risk of being subjected to treatment contrary to those Articles". 
In respect of Article 8 of the Convention, the Court stated that 
"[i]nsofar as it is apparent that [the applicant] would live under a ban against homosexual adult consensual relations, which would in Contracting States disclose a violation of Article 8 of the Convention [...], [o]n a purely pragmatic basis, it cannot be required that an expelling Contracting State only return an alien to a country which is in full and effective enforcement of all the rights and freedoms set out in the Convention".
2004 (II)

In I.N.N. v the Netherlands, the Court declared inadmissible a complaint by an Iranian national who, in 2001, had applied for asylum in the Netherlands. The applicant claimed, inter alia, that, in Iran in 2001 he had been caught by a policeman when he was kissing a male friend in an alley. He was arrested and taken to the vice squad police office where his particulars were recorded and his fingerprints taken. He was forced to write and sign a statement in which he declared that he was a homosexual and that he had been caught in flagrante delicto. After having been raped by this policeman, he was released the next day. He was told by the policeman that he should report daily to him at the vice squad police station. The applicant further stated that this policeman had raped him on two further occasions when he had reported to him at the police station. The applicant also claimed that, in March 2001, he had attended a protest meeting in the course of which films had been shot and photographs taken, including photographs of the applicant in the company of a good friend. This friend was arrested at the meeting and released on the next day. In April 2001, the friend's body was found in a ditch. The words “freedom of expression has this as a consequence” had been written on the body. 

The Court stated:
"[a]lthough it is not disputed in the abstract [...] that very draconian punishment can be imposed for homosexual acts, the Court is not persuaded that the applicant has shown that he is at a real risk of falling foul of the authorities on that ground. While he claimed that he had been arrested after having been caught kissing a male friend in an alley in [...] 2001, there is no indication that this has in fact resulted in any criminal proceedings being brought against him. Although it must be acknowledged that the general situation in Iran does not foster the protection of human rights and that homosexuals may be vulnerable to abuse, the applicant has not established in his case that there are substantial grounds for believing that he will be exposed to a real risk of being subjected to treatment contrary to Article 3 of the Convention on grounds of his homosexuality".
2012

In the A.S.B. v the Netherlands, the Court struck from its list the complaint by a Jamaican applicant who, in December 2009, had applied for asylum in the Netherlands, stating that he feared persecution and treatment contrary to Article 3 of the Convention in his country of origin on account of his homosexual orientation. He was refused asylum for three years but, subsequent to his complaint to the Court, eventually granted an asylum-based residence permit. The Court stated that, "[a]s no particular reason relating to respect for human rights as defined in the Convention requires the Court to continue its examination", it would strike the case from its list. 

2013

In 2013, the Court 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. The applicant, a married man whose wife and two children were living in Syria, claimed asylum in Sweden on the grounds that, inter alia
"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 Court declared the complaint inadmissible - I wrote about the case more fully here - and, in doing so, stated that "[h]aving regard to all the circumstances [...] the Court considers that the applicant’s claim concerning the homosexual relationship is not credible".

2014/15

In M.E. v Sweden - which I wrote about here - a Libyan national currently living in Sweden complained to the Court about his threatened expulsion from Sweden to Libya where, he alleged, he would be at risk of persecution and ill-treatment because he is a homosexual. The applicant arrived in Sweden as an illegal migrant in 2010 and claimed asylum. In 2011 he married a man who has permanent residence in Sweden. Swedish authorities repeatedly rejected Mr. M.E.'s application for a residence permit. They concluded that he could be returned to Libya where he could apply for family reunion with his spouse. 

The Libyan Penal Code makes all same-sex acts illegal, with a maximum punishment of imprisonment for five years. Mr. M.E. argued that expelling him to Libya would violate his rights under Article 3 of the Convention because as a homosexual he would be at risk of persecution and ill-treatment. He further argued that returning him to Libya and separating him from his spouse would violate his right to respect for family life under Article 8 of the Convention. 

The Court rejected both aspects of the complaint, but its most significant reasoning was to be found in respect of Article 3 where it concluded that: 
"the present case does not concern a permanent expulsion of the applicant to his home country but only a temporary return while the Migration Board considers his application for family reunion [...] [E]ven if the applicant would have to be discreet about his private life during this time, it would not require him to conceal or supress an important part of his identity permanently or for any longer period of time [...] [T]he Court finds no reason to believe that the applicant’s sexual orientation would be exposed so as to put him at risk of treatment contrary to Article 3".
Judge Power-Forde (Ireland) dissented, arguing "[t]his Court has held that to deprive a person of his reading glasses for a few months reaches the required threshold under Article 3 [...] Something doesn’t fit".

In November 2014 the Court announced that the complaint would be referred to the Grand Chamber for consideration at the applicant's request. In the light of new information concerning the situation in Libya, and noting that the Court had referred the applicant’s case to the Grand Chamber, the Swedish Migration Board decided to examine the applicant’s case again and to determine whether there were impediments to returning him to Libya. In December 2014, the Migration Board granted the applicant a permanent residence permit in Sweden.

The applicant - for various reasons which I discussed here - asked the Grand Chamber to continue its consideration of the complaint, not least to scrutinise the Chamber's earlier judgment. The Grand Chamber rejected all of the arguments advanced by the applicant. Focusing entirely on the present situation of the applicant (as someone who had been granted residence in Sweden) the Grand Chamber stated that it did 
"not need to enquire retrospectively into whether a real risk engaging the respondent State’s responsibility under Article 3 of the Convention existed when the Swedish immigration authorities refused his asylum requests or when the Chamber adopted its judgment". 
The Grand Chamber gave a simple reason for not examining the previous decisions of the Swedish authorities or the reasoning of its own Chamber: "[t]hese are historical facts but they do not shed light on the applicant’s current situation".

2015

On the 22 September 2015, the Fourth Section of the Court struck the complaint in A.E. v Finland from its list. In Finland, the applicant, an Iranian gay man, had applied for asylum a number of times and, between 2008 and 2015, his applications were continually rejected. He was informed that, although homosexual acts were criminalised in Iran, that 
"Iran was a relatively tolerant country as concerned homosexuality, as long as it was not exercised in public. Even though the death penalty could be imposed, the threshold for conviction was very high". 
On 1 April 2015 the Immigration Service again rejected the applicant’s asylum application (his fourth) but granted him a continuous residence permit for work for a period of one year starting from the decision date. The residence permit may be renewed.

In his complaint to the Court, the applicant invoked Article 3 of the Convention and argued that "he feared ill-treatment or torture if removed to Iran as he was homosexual". He stated that the Iranian police had evidence of his sexual orientation (in the form of photographs and videotapes) and that his homosexual friends had already been arrested. He reminded the Court that, in Iran, homosexual acts are punishable by the death penalty.

The Government suggested that the circumstances allowed the Court to reach the conclusion that the matter had been resolved, thereby justifying the discontinuation of the examination of the application. The applicant disagreed with the Government and claimed that he would still be in real and imminent danger if removed to Iran. He stated that the fact that he had been granted a work-based residence permit did not take away the human rights violation.

In a similar way to how the Grand Chamber responded in M.E. v Sweden, the Court resolved the applicant's complaint in the following way:
"The Court notes that the applicant has been granted a continuous residence permit valid for a period of one year with a possibility of renewal. He is thus no longer subject to an expulsion order [...] There is no risk of any imminent refoulement as the applicant has been granted a continuous residence permit in Finland."
The Court concluded that there were "no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the present application". 






Friday, 16 October 2015

ECtHR again 'dodges' ruling on the merits of gay asylum complaint in A.E. v Finland

The European Court of Human Rights has again dodged the question of whether attempting to return a gay man or lesbian to a country that criminalises homosexual sexual acts amounts to a violation of the European Convention on Human Rights.

On the 22 September 2015, the Fourth Section of the Court struck the complaint in A.E. v Finland from its list. The complaint was brought by an applicant who is a Kurd by ethnic origin and a Muslim. The applicant realised in his early childhood that he was homosexual and, in his home village, had four homosexual friends who, in October 2008, were arrested by the police at a private party which the applicant did not attend. The next day the applicant’s father called him and told him that the police had come looking for him and had searched the house. On 15 October 2008 the applicant left Iran for Turkey where he spent over a month. He then flew to Stockholm and continued from there to Finland.

In Finland, the applicant applied for asylum a number of times and, between 2008 and 2015, his applications were continually rejected. He was informed that, although homosexual acts were criminalised in Iran, that "Iran was a relatively tolerant country as concerned homosexuality, as long as it was not exercised in public. Even though the death penalty could be imposed, the threshold for conviction was very high".

On 1 April 2015 the Immigration Service again rejected the applicant’s asylum application (his fourth) but granted him a continuous residence permit for work for a period of one year starting from the decision date. The residence permit may be renewed.

In his complaint to the Court, the applicant invoked Article 3 of the Convention and argued that "he feared ill-treatment or torture if removed to Iran as he was homosexual". He stated that the Iranian police had evidence of his sexual orientation (in the form of photographs and videotapes) and that his homosexual friends had already been arrested. He reminded the Court that, in Iran, homosexual acts are punishable by the death penalty.

In a similar way to how the Grand Chamber responded in M.E. v Sweden, the Court resolved the applicant's complaint in the following way:
"The Court notes that the applicant has been granted a continuous residence permit valid for a period of one year with a possibility of renewal. He is thus no longer subject to an expulsion order [...] There is no risk of any imminent refoulement as the applicant has been granted a continuous residence permit in Finland."
This is another example of the Court adopting an "all's well that ends well" approach to resolving a complaint about the systematic failure of a Contracting State to provide adequate protection for a person who, if returned to their home state, would be at risk of ill-treatment and death.

It is a woefully inadequate response, from the world's leading human rights institution, because it fails to address the fact that for seven years the applicant was under the threat of being deported to a country where, because of his sexual orientation, he would be at risk of capital punishment. Moreover, his residence in Finland remains temporary and, therefore, uncertain. 

The Court had the opportunity to declare that a Council of Europe state that attempts to return a gay man to a country that criminalises homosexual sexual acts is acting contrary to human rights and fundamental freedoms. It should have declared the complaint admissible and gone on to find a violation of Article 3 of the Convention. The fact that the Court repeatedly decides not to do this should be a reminder that it is often reluctant and conservative in its support of the human rights of gay men and lesbians. Specifically, it reminds us that the Court remains unwilling to lay down the precedent that attempting to deport gay men and lesbians to countries that would brutalise and murder them is a violation of human rights. 

Sunday, 27 September 2015

Workshop on 17 December 2015 to mark the 60th anniversary of the first complaint about sexual orientation under the ECHR

I am delighted to announce that the University of Sheffield will host a workshop to mark the 60th anniversary of the first complaint about sexual orientation discrimination ever made under the European Convention on Human Rights. 

The workshop will be held on Thursday 17th December 2015, sixty years to the day that the former European Commission of Human Rights declared that a complaint by a man imprisoned for "two cases of homosexuality" was inadmissible (I detailed the case last October). This was the very first case about sexual orientation discrimination brought under international human rights law. 

Damian Gonzalez-Salzberg (lawyer, lecturer in law, and expert in sexual orientation discrimination and the ECHR) has organised the workshop, which is kindly supported by the School of Law at the University of Sheffield. Also participating is Loveday Hodson (barrister at law, senior lecturer in law, and also expert in sexual orientation discrimination and the ECHR). 

The day will consist of short talks on aspects of the last sixty years of litigation relating to sexual orientation discrimination under the Convention and a seminar aimed at examining issues relevant to future litigation. To mark the day, Damian, Loveday and myself will launch an online publication consisting of the text of the talks that we will deliver. 

The event is free and we hope that as many people as possible will join us. There is a free lunch! We welcome anyone who has an interest in LGBT human rights. 

A flyer for the event can be found here and we would be very grateful to anyone who distributes it to publicise the event. 

Registration for the workshop is available here.

Friday, 25 September 2015

M.B. v Spain - recently communicated complaint concerning expulsion of an asylum seeker who had a same-sex relationship

The European Court of Human Rights has communicated the complaint in M.B. v Spain. The applicant is a Cameroonian national who was refused asylum in Spain. The applicant complains under Articles 2 and 3 of the Convention that her life and physical integrity will be at risk if she is ever removed to Cameroon. She raises a further complaint under Article 13 of the Convention relating to the effectiveness of domestic remedy.

One aspect of the applicant's complaint concerns a same-sex relationship she had in Cameroon. The relationship had started out as a "secret" but people had found out and informed the applicant’s family. The applicant’s oldest son told her that her family had found out that she was in a relationship with another woman and were threatening her to inform the police about her sexual orientation.

In Cameroon sexual relations with a person of the same sex are criminalized. Article 347 bis of the Penal Code criminalises "homosexuality", meaning sexual acts between persons of the same-sex, and allows for a punishment of up to five years in prison and a fine of 200,000 francs* (£224) - these penalties are doubled in respect of a person who has committed sexual acts with a person between sixteen and twenty-one years of age.

The Spanish authorities had dismissed the issue of the applicant's same-sex relationship on the grounds that "it was very unlikely that people in the village had found out about her homosexual relationship, as it was a secret one" and, in combination with a consideration of other issues, stated that the application for asylum lacked credibility. The General Deputy Director of Asylum concluded that it was not credible that the applicant had faced a situation of “social and familiar harassment” due to her sexual orientation and that there was no evidence that the Cameroonian public authorities were aware of the applicant’s sexual orientation.




* "Est puni d'un emprisonnement de six mois à cinq ans et d'une amende de 20.000 à 200.000 francs toute personne qui a des rapports sexuels avec une personne de son sexe".


Tuesday, 22 September 2015

Misrepresentation and misunderstanding of the European Court of Human Rights in the UK Parliament

As the UK Conservative government steps up its campaign to reform UK human rights law, which will potentially significantly change the UK's relationship with the European Court of Human Rights, there is bound to be an upsurge in political claims about the Court and what it does. My recent paper considers the ways in which UK politicians frequently misrepresent and misunderstand the Court and examines the consequences of this. 

Here is the abstract:

There is widespread and growing mistrust of the European Court of Human Rights (ECtHR) in the United Kingdom (UK). In response to what can be seen as the progressive ‘folk deviling’ of the ECtHR in the UK, the aim of this chapter is to explore how beliefs about the ECtHR are created and sustained. To achieve this aim, the chapter focuses attention on beliefs about the ECtHR that are expressed by members of the UK Parliament. Through an analysis of parliamentary debates, the chapter examines how parliamentarians discursively represent their beliefs about the ECtHR and how these beliefs come to achieve degrees of collective acceptance among MPs and Lords. As the analysis of parliamentary debates shows, the ECtHR is often depicted as a biased institution that poses a risk to the human rights of large sections of the UK population. If it is accepted that parliamentary discourse has an influence on wider public perceptions and opinions, then the beliefs expressed by parliamentarians that are outlined in this chapter should be of concern to anyone with an interest in encouraging a balanced and informed understanding of the ECtHR among the population of the UK.

The paper can be found here:

Monday, 21 September 2015

The voting record of the new President of the European Court of Human Rights in respect of sexual orientation discrimination

Guido Raimondi, who has been a judge in the European Court of Human Rights since 2010, was today elected its President. 

Since 2010, President-elect Raimondi has sat in five major cases relating to sexual orientation discrimination. 

Here is how he voted:

In X v TurkeyJudge Raimondi joined a unanimous chamber in declaring that the mistreatment of a gay man in prison amounted to a violation of Article 3, and joined a majority (6-1) in declaring the mistreatment a violation of Article 14 taken in conjunction with Article 3 (which was the first time that the Court had ever recognised that discrimination on the grounds of sexual orientation amounted to a violation of Article 3). 

In X and Others v Austria, Judge Raimondi joined a unanimous Grand Chamber in declaring that the refusal to permit step-parent adoption for same-sex couples did not amount to a violation of Article 14 taken in conjunction with Article 8 when unmarried same-sex couples are compared to married different-sex couples (confirming that contracting states that do not permit same-sex couple to marry, and restrict step-parent adoption to different-sex married couples, are not in violation of the Convention) but joined a majority (10-7) in declaring that the refusal to permit step-parent adoption for same-sex couples did amount to a violation of Article 14 taken in conjunction with Article 8 when unmarried same-sex couples are compared to unmarried different-sex couples (thus declaring, for the first time, that rights to step-parent adoption that are available to unmarried different-sex couples must also be available to unmarried same-sex couples). 

In Vallianatos and Others v Greece, Judge Raimondi joined a majority in the Grand Chamber (16-1) in declaring that the exclusion of same-sex couples from civil unions, that were an alternative to marriage available only to different-sex couples, amounted to a violation of Article 14 taken in conjunction with Article 8. 

In Hämäläinen v Finland, Judge Raimondi joined a majority in the Grand Chamber (14-3) in declaring that the requirement that a transsexual end a different-sex marriage in order to gain full legal recognition of her acquired sex did not amount to a violation of any aspect of the Convention, including Article 12. 

In Oliari and Others v Italy, Judge Raimondi joined a unanimous chamber in declaring that the lack of legal recognition for same-sex relationships (other than marriage) in Italy (his own country) amounted to a violation of Article 8 of the Convention. 

Thursday, 17 September 2015

New article on heteronormativity and human rights law

Giulia Dondoli, of the University of Waikato, has made available a conference paper entitled "The Heteronormativity of the Human Rights Law: Causes and Consequences".

Here is the abstract:

The Universal Declaration of Human Rights (UDHR) and the subsequent human rights covenants and conventions are characterised by heteronormativity. Although many authors have discussed the consequences that heteronormativity has in the life of LGBTI (lesbian, gay, bisexual, transgender and intersex) individuals, the circumstances that led to the articulation of this heteronormativity are overlooked. This proposed paper aims to research the causes of this event through a study of the travaux préparatoir (preparatory documents) of the UDHR. In detail, the paper will look at the different drafts of Article 16 (right to marry and to found a family). Particular attention will be given to the nongovernmental advocacy of religious groups and women’s groups in the formulation of this article. Finally, the paper aims to demonstrate that heteronormativity is only a formal limit to the development of LGBTI rights. Indeed, heteronormativity masks the political intention of governments and international organisations not to allocate certain rights to LGBTI individuals. To do so, the paper will present several international and national examples.

The paper can be found here:

Article on Oliari and Others v Italy

Giuseppe Zago, a researcher in comparative sexual orientation law at Leiden University, has produced an interesting analysis of the recent judgment of the European Court of Human Rights in Oliari and Others v Italy.

Here are the details:

A victory for Italian same-sex couples, a victory for European homosexuals? A commentary on Oliari v Italy
In Oliari and others v. Italy the European Court of Human rights established for the first time that the legislator’s failure to guarantee a legal framework recognizing non-marital same-sex relationships constitutes a violation of the right to respect for private and family life under article 8 of the European Convention of Human Rights. This article aims to underline positives and negatives in judges’ reasoning. Particularly, it will be underlined the relevance of the judgment both as a critique on major contradictions characterizing Italian institutional debate around the issue of same-sex partnerships, and as a further step in the progressive application of article 8 ECHR to protect same-sex individuals committed in an intimate relationship. Such result is indeed achieved by referring expressly to the US Supreme Court judgment in Obergefell v. Hodges, which is uncommon for the Strasbourg Court and should not be overlooked for future cases. However, the article observes how the Chamber surprisingly failed ascertaining a possible violation of the right of private and family life in conjunction with the non-discrimination principle. This risks limiting the effects of its reasoning to the Italian situation only. Moreover, it is disappointing to notice that the European Court did not even examine Italy’s violation of the right to marry under art.12 of the Convention, and contrarily granted a wide margin of appreciation to the States. At present, same-sex marriage still remains “taboo” for the ECtHR.

The article can be found here:

Tuesday, 15 September 2015

Thursday, 10 September 2015

Communication to the Council of Europe about continuing restrictions on LGBT human rights in Moldova

In advance of the next quarterly meeting of the Committee of Ministers' Deputies, which examines the state of execution of the judgments of the European Court of Human Rights, two NGO(Genderdoc-M and ILGA-Europe) have submitted a communication regarding the case of Genderdoc-M v Moldova

In the submission, Genderdoc-M acknowledge the progress made by law enforcement authorities in respect of LGBT rights that have enabled pride parades to take place in 2014 and 2015. However, they express concern that: the authorities do not fully comply with their obligation to protect persons demonstrating for the rights of LGBTI people and to prosecute counter-demonstrators who act illegally; and that some members of the police force take actions which Genderdoc-M considers are intended to obstruct or otherwise limit the right of its members and supporters to exercise freedom of assembly. 

The communication provides a range of data to substantiate the expressed concerns and requests that the Committee of Ministers, contrary to the request of the Moldovan authorities, do not reclassify the case from "enhanced supervision" to "standard supervision". 

Wednesday, 12 August 2015

New academic article on Hämäläinen v Finland


Damián González-Salzberg, of the University of Sheffield, has published an insightful article on the recent judgment by the Grand Chamber of the European Court of Human Rights in Hämäläinen v Finland

The article can be found here:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2641698

Here is the Abstract:

On 16 July 2014, the European Court of Human Rights sitting as a Grand Chamber issued its most recent ruling regarding transsexuality and marriage. The question before the Court was whether a transsexual woman, who had married another woman before her gender transition, had the right to obtain full legal recognition of her gender without putting an end to their marriage. The answer given by the Court was not only a rejection of the applicant’s claim; it was also a decision that called into question the Court’s own conception of heterosexual marriage.

Tuesday, 21 July 2015

Ground-breaking judgment of the European Court of Human Rights in Oliari and Others v Italy: same-sex couples in Italy must have access to civil unions/registered partnerships

The Fourth Section of the European Court of Human Rights has today (21 July 2015) issued its judgment in Oliari and Others v Italy. The applicants are three male same-sex couples - six men who were born between 1959 and 1976 and live in Italy - who complained that under Italian legislation they did not have the possibility to get married or enter into any other type of civil union and that, consequently, they were being discriminated against on the grounds of their sexual orientation.

In its judgment the Court has, for the first time, found that the inability of same-sex couples to gain some form of legal recognition of their relationships other than marriage, in a country which only offers marriage to different-sex couples, amounts to a violation of the European Convention on Human Rights. As a consequence, the Italian legislature will be required to provide same-sex couples with access to some form of civil union or registered partnership. Simultaneously, the Court rejected the applicants' complaint that their inability to marry was a violation of the Convention.


The judgment is a significant development in the Court's case law. It goes beyond the judgment in Vallianatos and Others v Greece, in which the Grand Chamber of the Court found that making 'civil unions' available to different-sex couples but not to same-sex couples amounted to a violation of the Convention. It sets the strong precedent that Council of Europe states that fail to provide same-sex couples with some form of legal recognition (other than marriage) may be in violation of positive obligations under Article 8 of the Convention.

The judgment will require careful scrutiny, but on first reading a number of points seem initially very interesting:

Article 8 alone

One of the most striking features of the judgment is that the Court chose not to engage with the applicants' complaints that the inability of same-sex couples to gain legal recognition for their relationships in Italy constituted a form of discrimination on the ground of sexual orientation. All three couples had made this complaint, invoking Article 14 in conjunction with Article 8. Four of the applicants explicitly addressed discrimination in their submission and argued, for example, that 'lack of recognition of same-sex couples in a given state corresponded to a lower degree of social acceptance of homosexuality' and that, if the Court simply deferred to the choices to the national authorities, it 'would fail to take account of the fact that certain national choices were in fact based on prevailing discriminatory attitudes against homosexuals' (§ 113).

Yet, despite all of the applicants relying on Article 14, the Court decided to examine the merits of the complaint under Article 8 alone. Only one of the three couples had invoked Article 8 alone, but the Court, relying on the established principle that it is the 'master of the characterisation to be given in law to the facts of the case', stated that the complaints of the other two couples also fell to be examined under Article 8 alone (§ 99-100).

The Court went on to find a violation of Article 8 alone and reasoned this in the following terms: 

The Court observed that there is 
'a conflict between the social reality of the applicants, who for the most part live their relationship openly in Italy, and the law, which gives them no official recognition on the territory' (§ 173). 
The Court then stated that 
'an obligation to provide for the recognition and protection of same-sex unions, and thus to allow for the law to reflect the realities of the applicants’ situations, would not amount to any particular burden on the Italian State be it legislative, administrative or other' (§ 173). 
The Court reiterated that in assessing a State’s positive obligations under Article 8 it must have regard to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole. In this respect, when weighing the interests of the applicants against the community interests the Court noted that the Italian Government had failed to explicitly highlight the interests of the community as a whole. The Government had instead relied on its margin of appreciation to determine what action it took. In this respect, the Court observed that while the Government is usually better placed to assess community interests, in the present case the Italian legislature seems not to have attached particular importance to certain developments in both the Italian population and the highest judicial authorities in Italy. In this respect, the Court noted both the sentiments of a majority of the Italian population, as shown through official surveys, which indicate a popular acceptance of homosexual couples as well as popular support for their recognition and protection (see § 144). In addition, it noted that the need to recognise and protect such relationships had been given a high profile by the highest judicial authorities, including the Constitutional Court and the Court of Cassation (see § 45). In light of this, the Court held:
'[I]n the absence of a prevailing community interest being put forward by the Italian Government, against which to balance the applicants’ momentous interests [...], and in the light of domestic courts’ conclusions on the matter which remained unheeded, the Court finds that the Italian Government have overstepped their margin of appreciation and failed to fulfil their positive obligation to ensure that the applicants have available a specific legal framework providing for the recognition and protection of their same-sex unions' (§ 185).
The point about the failure of the Italian legislator to heed the conclusions of the domestic courts, as well as the point made about social attitudes about homosexuality, are very important and mean that the 'positive obligation' established by the judgment cannot simply be applied to other states, such as the Russian Federation. The Court emphasised that '[t]o find otherwise today, [it] would have to be unwilling to take note of the changing conditions in Italy and be reluctant to apply the Convention in a way which is practical and effective' (§ 186). It is, therefore, the 'changing conditions in Italy' which are decisive to the Court's judgment. Indeed, in their concurring opinion, judges Mahoney, Tsotsoria, Vehabović were careful to point out that this 'new' positive obligation existed 'on the basis of a combination of reasons not necessarily found in all the Contracting States' (§ 10). Mahoney, Tsotsoria, Vehabović would have preferred to have found a 'negative' violation of Article 8 based on a 'classic' analysis of whether the Italian state, in interfering with Article 8(1), had any justification under Article 8(2).

The good news for same-sex couples in Italy, therefore, is that in order to fulfil its obligations under the Convention, the Italian legislature will need to make available 'a specific legal framework providing for the recognition and protection of [...] same-sex unions'. 

Why no Article 14?

The Court stated that '[h]aving regard to its finding under Article 8 [...], [it] considers that it is not necessary to examine whether, in this case, there has also been a violation of Article 14 in conjunction with Article 8' (§ 188). 

As I stated above, all of the applicants had invoked Article 14 in conjunction with Article 8 and the issue of discrimination was clearly addressed by Professor Robert Wintemute in his extensive submission on behalf of a number of Third-Party Interveners (§ 140-143).

However, because the Court examined the merits of the complaints under Article 8 alone it did not deal with the issue of the alleged discrimination. As such, the judgment does not explicitly address the claim that the difference in treatment complained of was based solely on the applicants' sexual orientation. By failing to consider this claim under Article 14, the Court does not establish whether the treatment of the applicants amounts to discrimination in violation of the Convention.   

This seems a very odd approach, and one which is now largely out of step with the Court's jurisprudence relating to sexual orientation. In stating that an examination of Article 14 is not necessary, the Court returns to its approach prior to 1999, when it would not consider nor find a violation of Article 14 in respect of a complaint relating to sexual orientation even when it had found a violation of Article 8 of the Convention. 

One could speculate that the Court may have been reluctant to find a violation of Article 14 taken in conjunction with Article 8 because this may have more strongly established a precedent about 'discrimination' applicable to all Council of Europe states. 

At the very least, the failure of the Court to examine the Article 14 complaints means that it has not answered the question put to it by the anti-gay European Centre for Law and Justice that asked 'why homosexuality was more acceptable than polygamy' and 'child marriage' (§ 153). The Court could have responded that a difference in treatment based on sexual orientation amounted to a form of discrimination repugnant to Article 14 of the Convention, unlike the regulation of polygamy and marriage involving children.

Should this judgment be referred to the Grand Chamber, it will be very interesting to see whether the approach to Article 14 adopted by the Fourth Section is continued. 

Article 12

The Court's consideration of Article 12 is extremely significant. All of the applicants complained that their inability to marry was in violation of Article 12 of the Convention. One couple invoked Article 12 alone, and all couples invoked Article 14 in conjunction with Article 12. 

The Court declared these complaints inadmissible, finding them manifestly ill-founded and rejecting them in accordance with Article 35 §§ 3 and 4 of the Convention.

To find the Article 12 complaints manifestly ill-founded amounts, in my view, to a significant 'step backwards' for litigation on same-sex marriage in the Court. In Schalk and Kopf v Austria, in which the Court first considered a complaint about the inability of a same-sex couple to marry, it declared the Article 12 complaint admissible but found no violation. In Hämäläinen v Finland, the Grand Chamber of the Court found that there was no need to examine a complaint under Article 12 made by a transexual applicant who, according to Finnish law, was required to divorce her wife in order to gain full legal recognition of her acquired sex. 

In the present case, the Court has taken the regressive step of declaring the Article 12 complaints inadmissible. The Court's justification for doing so is ostensibly that there has been insufficient change across Council of Europe states for it to depart from its established jurisprudence. Despite the fact that the number of states permitting same-sex marriage has nearly doubled since the judgment in Schalk and Kopf, the Court felt that this 'gradual evolution' (§ 192) did not constitute the sufficient consensus necessary to impose an obligation on Italy to grant a same-sex couple like the applicants access to marriage.

Specifically in respect of the complaints under Article 14 in conjunction with Article 12, the Court makes a rather curious statement: 
'in Schalk and Kopf, the Court held that Article 14 taken in conjunction with Article 8, a provision of more general purpose and scope, cannot be interpreted as imposing such an obligation [on the respondent Government to grant a same-sex couple like the applicants access to marriage]. The Court considers that the same can be said of Article 14 in conjunction with Article 12' (§ 193).
I am not sure how the Court's reiteration of the view in Schalk and Kopf - that if Article 12 does not impose an obligation on Contracting States to provide same-sex couples with access to marriage then neither does 'a provision of more general purpose and scope' (Article 14 taken in conjunction with Article 8) - is relevant to dealing with a complaint under Article 12 when it is combined with Article 14. 

To my mind, the Court's admissibility decision in respect of Article 12 is further evidence that the 'right to marry' remains, practically and effectively, inapplicable to same-sex partners. Although there is much dispute about the 'applicability' of Article 12 to same-sex couples - I last wrote about this on the European Courts website - the decision to declare the complaint inadmissible should raise further concerns about the extent to which the Court considers Article 12 applicable to marriage between persons of the same sex. If Article 12 is applicable to same-sex couples, on what grounds could a complaint about a total legal prohibition of same-sex marriage be manifestly ill-founded? Although the Court reiterated the principle established in Schalk and Kopf that 'it would no longer consider that the right to marry must in all circumstances be limited to marriage between two persons of the opposite sex', it is clear that such 'circumstances' do not include a legal ban imposed on same-sex marriage by the state. My interpretation of the admissibility decision is that it is further evidence of the Court's entrenched (but politely expressed) view that Article 12 does not apply to same-sex couples and they should not trouble the Court with their complaints.

Conclusion

This is a ground-breaking judgment that advances the human rights and freedoms of same-sex couples in significant ways. It establishes that there is a positive obligation for Italy under Article 8 to provide same-sex couples with some form of legal recognition of their relationships. Although this positive obligation has been established in the context of the social and legal relations of Italy, it is clear that this may set an important precedent in respect of all other states. 

The failure to examine the Article 14 complaints (particularly in conjunction with Article 8) is perplexing and somewhat worrying. The applicants had clearly suffered a difference in treatment based solely on the grounds of their sexual orientation - given that this was the only reason they could not establish a legal relationship with the partner of their choice - and the Court should have found that this amounted to discrimination in violation of Article 14 taken in conjunction with Article 8.

The decision to declare the Article 12 complaints manifestly ill-founded sends a very strong message that the Court has no intention of changing its position that, for all practical and effective purposes, the right to marry does not extend to same-sex partners.