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. 

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