Saturday, 31 December 2016

2016 - a year in review

Here is my annual round-up of cases concerning sexual orientation discrimination that were considered by the European Court of Human Rights in 2016.

This was a significant year, in many ways, which saw the Court issue some important judgments that enhance its existing LGBT jurisprudence. However, it was also a year in which the Court issued judgments that continue its established refusal to extend to same-sex couples the human right to marry...

In January, the Court declared the complaint in Pshenkina v Sweden, which concerned the refusal to permit the same-sex partner of a prisoner to visit in order to marry, inadmissible on the grounds that the applicant had not exhausted domestic remedies. The Court also issued its judgment in Kostadinov v Bulgariaupholding a complaint about the role of police in maintaining public order during a "gay pride" event. 

In February, the Court issued its judgment in Pajić v Croatia, upholding a complaint about sexual orientation discrimination in immigration law. 

In April, the Court held in Sousa Goucha v Portugal that a homophobic joke did not violate the Convention. It also held in M.C. and A.C. v Romania that the failure of police to take into account discriminatory motives when investigating a homophobic attack amounted to a violation of Article 3 (procedural limb) taken in conjunction with Article 14 of the Convention.

In May, the Court, in A.N. v France, once again rejected an application by a gay asylum seeker, thus continuing its established approach in respect of complaints by gay men and lesbians about Council of Europe States that seek to return them to States outside of Europe that criminalise homosexual acts. 

In June, the Court, in Chapin and Charpentier v France, restated its established opinion that denying a same-sex couple access to marriage does not violate the Convention. The Court also held, in Aldeguer Tomás v Spainthat a surviving same-sex partner who was denied access to survivor’s pension was not discriminated against. But, at the end of the month, in Taddeucci and McCall v Italy, the Court held that Italy had violated the Convention by refusing a residence permit to a same-sex partner. 

In July, in O.M. v Hungary, the Court held that the conditions of detention to which a gay asylum seeker was subjected amounted to a violation of the Convention.

And in November, the court held, in Kaos GL v Turkey, that the seizure of copies of a magazine promoting LGBT rights in Turkey breached Article 10 of the Convention.

"Judges of the Year"


Apologies for this tabloid turn, but I want to pay tribute to Judges Spano and Bianku who this year, in their concurring opinion in Taddeucci and McCall v Italy, made some striking statements about same-sex couples, marriage and family life. 


Specifically, Judges Spano and Bianku spoke of the Court being a "sanctuary" for same-sex couples when they are denied access by States to the family life rights available to opposite-sex couples. Such a plain statement from judges in the Court is heartening, encouraging and most welcome. 

Blog stats

In the time since I began this blog in February 2013, the stats page has recorded a total of 132,711 page views. The worldwide readership of the blog, from Aruba to United Arab Emirates, has improved my worldwide geography no end. Here is a list of the top ten countries by page views of all time: 



Thanks and Happy New Year

I want to thank everyone who has read this blog over the year for their interest. Many thanks to those of you who have written to me personally. Special thanks to Dr. Loveday Hodson for her excellent Guest Post on Pajić v Croatia.


I wish you all a very happy, a very peaceful, and a very prosperous 2017.



Wednesday, 14 December 2016

Research Associate post at the University of York

I am very pleased to provide details of the following post at the University of York which may be of interest to readers...

Research Associate

Department
Sociology
Based at
University of York - Heslington Campus
Hours of work
Full-time
Contract status
Fixed term
Salary
£31,076 - £38,183
Apply by
25/01/2017
Documents








The Department of Sociology is seeking a full time research associate to work with Professor Paul Johnson on a programme of socio-legal research relating to sexual orientation and human rights.
This is an exciting opportunity to work on a programme of research that will involve the investigation of a diverse range of issues relating to sexual orientation law at the national and international levels, with particular focus on the European Convention on Human Rights.
You should have an excellent knowledge of human rights and equality law relating to sexual orientation and possess highly developed skills in conducting socio-legal research. 
Your main roles will be to assist with conducting research, preparing applications for external funding, and writing for publication. The post will also involve you delivering some teaching at both undergraduate and taught postgraduate levels.
The essential qualifications that are required for this post are: 
  • First degree in sociology, law or other relevant subject
  • PhD (awarded or submitted) in sociology, socio-legal studies, or law or equivalent experience
This job will be located at the University of York. 
The closing date for this role is 25 January 2017 at midnight. 

Tuesday, 13 December 2016

Alekseyev v Russia - further consideration by the Committee of Ministers

At the 1273rd Human Rights meeting of the Ministers' Deputies, held between 6-8 December 2016, the Committee of Ministers of the Council of Europe once again considered the state of the execution of the judgment of the European Court of Human Rights in Alekseyev v Russia. The judgment, it will be recalled, concerned the repeated refusal of domestic authorities to permit "gay pride" events - a refusal which the Court held to amount to, inter alia, a violation of Article 11 and Article 14 taken in conjunction with Article 11 of the European Convention on Human Rights. 

Over six years have passed since the Court's judgment and the Committee of Ministers have considered the Russian authorities' response to it on several occasions. During this time, Russia has enacted federal law prohibiting the so-called propaganda of non-traditional sexual relations among minors - a complaint against which is outstanding before the Court. 

The Russian authorities maintain - as they have many times before - that they have taken positive action to ensure that LGBT groups may exercise their right to freedom of assembly in public and hold "gay pride" events. They state, in their latest Action Plan, that
individual and general measures that have been previously communicated and described in this Action plan will help to provide the balanced approach to consideration of requests on holding public events of the category under consideration, uniformity and improvement of law enforcement practice, including the judicial one, as well as create additional assurance of compliance with provisions of the Convention on Human Rights and Fundamental Freedoms. 
However, submissions form NGO's - Coming Out and ILGA-Europe, and Gay Russia and Moscow Pride - suggest that the situation in Russia is not improving and is, in fact, worsening. Coming Out and ILGA-Europe state:
The execution of judgments process in this case has now been proceeding for 5 1⁄2 years. Regrettably, not only has there been no serious attempt to implement the judgment, but similar violations continue unabated. The Russian government’s latest Communication reveals that of 48 notifications for public events between 1 October 2015 and 30 June 2016, 47 were blocked by the authorities. Almost all the refusals were challenged in the courts, 41 to appeal court level, and two to the Supreme Court. No challenge was successful. 
Gay Russia and Moscow Pride state:
We would like to attract the attention of the Committee of Ministers to the fact that in 2016 the situation with the respect of the right of LGBT individuals to freedom of assembly in Russia continued to sharply deteriorate. At the time of the current submission, in 2016 alone municipal or regional authorities banned Gay Parade marches and all public assemblies in support of the rights of sexual and gender minorities and condemning homophobia and transphobia in [...] 56 Russian cities located in 55 out of 85 constitutional regions...
The Committee of Ministers reached the following decision (with my emphasis added):
The Deputies
1.         noted with interest the additional measures presented in the updated action plan, notably the actions of the Supreme Court intended to harmonise judicial practice in line with the requirements of the Constitution, the European Court’s judgments and the Committee of Ministers’ decisions, the creation within the judiciary of a database of relevant international materials and continued training and other awareness-raising activities for local authorities and judges;
2.         noted also the authorities’ declaration that Russian law affords the LGBT community the opportunity fully to exercise the rights guaranteed by the Constitution and the Convention, including by using the “mass event format”;
3.         noted with satisfaction that the courts appear now to be deciding on the lawfulness of refusals to allow public events of the kind here at issue before the date planned for the events in question;
4.         expressed, however, serious concern that, notwithstanding the measures presented, the situation does not attest to any improvement, as the number of public events allowed continues to be very limited: only one of all the requests to hold an assembly, deposited during the last period examined by the Committee (from 1 October 2015 to 30 June 2016), was allowed;
5.         noted with concern that the courts regularly uphold the refusal decisions of the local authorities and that the emerging signs of improvement in judicial practice, including compliance with the Convention requirements in some cases and an award in 2013 of non-pecuniary damages to compensate for an unlawful refusal to allow an event, do not appear to have been followed;
6.         urged the authorities to adopt all further necessary measures to ensure that the practice of local authorities and the courts develops so as to ensure the respect of the rights to freedom of assembly and to be protected against discrimination, including by ensuring that the law on “propaganda of non-traditional sexual relations” among minors does not pose any undue obstacle to the effective exercise of these rights;
7.         in view of the above, invited the authorities to continue action to address effectively the outstanding questions with a view to achieving concrete results;
8.         noted that, among the measures which could be considered, figure reinforced training of all the authorities involved, elaboration of a code of conduct for local authorities in charge of handling notifications for public events and for the police when handling assemblies and the possibility of further guidance by the highest courts to prevent violations of the kind at issue in the present case, as well as further measures to address continued widespread negative attitudes towards LGBT persons;
9.         invited also the authorities, in accordance with the existing practice, to continue providing statistical information on developments, this time for the period from 1 July 2016 to 31 March 2017. 
The Committee of Ministers' Decision can be seen as a clear statement that the Deputies do not accept the Russian authorities' claims that improvements have been made and, moreover, that significant reform is needed in Russia to ensure that LGBT people are able to effectively exercise their right to freedom of expression and peaceful association.

It seems certain that the European Court of Human Rights will find further violations in similar cases against Russia before any progress is made in respect of the execution of the Alekseyev judgment. 

Saturday, 3 December 2016

New academic article on ECHR and homosexuality

Christine Byron, lecturer in law at Cardiff Law School, has published a new article in the Judges' Journal (published by the American Bar Association) titled "The European Court of Human Rights: A Living Instrument as Applied to Homosexuality".

The article can be found here: