Tuesday, 25 April 2017

New article on the Church of England and sexual orientation equality law

I am pleased to make available a new article, co-written with Robert Vanderbeck at the University of Leeds, called "Sexual Orientation Equality and Religious Exceptionalism in the Law of the United Kingdom: The Role of the Church of England".

The article, as its title suggests, considers the role of the Church of England in ensuring the inclusion of provisions in legislation that exempt it and other religious organisations from the legal requirement to treat people equally on the grounds of sexual orientation.

Here is the abstract:

There is a growing literature that addresses the appropriateness and merits of including exceptions in law to accommodate faith-based objections to homosexuality. However, what has rarely been considered and, as a consequence, what is generally not understood, is how such religious exceptions come to exist in law. This article provides a detailed analysis of the contribution of the Church of England to ensuring the inclusion of religious exceptions in United Kingdom legislation designed to promote equality on the grounds of sexual orientation. The article adopts a case study approach that, following the life of one piece of anti-discrimination legislation, shows the approach of the Church of England in seeking to insert and shape religious exceptions in law. The analysis contributes to broader debates about the role of the Church of England in Parliament and the extent to which the United Kingdom, as a liberal democracy, should continue to accommodate the Church’s doctrine on homosexuality in statute law.

Tuesday, 18 April 2017

New communicated case concerning gay asylum - O.S. v Switzerland

The Third Section of the European Court of Human Rights has communicated the case of O.S. v Switzerland. The case concerns a Gambian national, Mr O.S., who is approximately 33-years-old and who has been refused asylum in Switzerland.

The facts

Mr O.S. arrived in Switzerland in 2008 and applied for asylum under a false name and nationality. This request was rejected and Mr O.S.'s expulsion was ordered. Mr O.S. was subsequently convicted of an offence and served two periods in prison. Prior to his first period of imprisonment, Mr O.S. had applied again for asylum under his real name. He based his request on the fact that he is homosexual and is therefore at risk of persecution in Gambia. 

Gambia continues to enforce law relating to homosexual acts that was enacted during the British colonial period. The Gambian Criminal Code makes "carnal knowledge of any person against the order of nature" (which has been defined to include any homosexual act) an offence punishable by up to 14 years of imprisonment, or up to life imprisonment in certain "aggravated" circumstances. The Criminal Code further makes "gross indecency" between persons of the same sex an offence punishable by up to five years of imprisonment. Gambian criminal law relating to homosexual acts has been amended twice since 2005 to strengthen the prohibition of such acts. 

Mr O.S.'s second asylum request was denied.

In 2014, Mr O.S. and his same-sex partner officially registered their relationship and applied for family unification - that is, a residence permit for Mr O.S. to stay with his registered partner in Switzerland.

In 2015, the Swiss migration authorities refused Mr O.S.'s request and ordered his expulsion. They further stated that Mr O.S. had to await the outcome of any appeals outside of Switzerland. Mr O.S. appealed the refusal, and this appeal is pending before the Administrative Court.

Mr O.S. also requested an interim measure, allowing him to stay in Switzerland during the appeal proceedings. This request has been repeatedly denied. In December 2015, the Swiss Federal Supreme Court held that there was a high probability that Mr O.S.'s appeal against his expulsion would not be successful, in particular owing to his criminal conviction and his conduct during the asylum proceedings. The Court further held that:
"there were no concrete obstacles for [Mr O.S.] to return to Gambia, at least temporarily. [He] and his partner had so far only lived together for a very limited period since [he] had been imprisoned for a considerable amount of time during their relationship. Furthermore, there were no indications that the Gambian authorities were aware of [Mr O.S.'s] homosexuality or partnership. Therefore ... there was no real risk for [Mr O.S.] under Article 3 [of the Convention], when returned to Gambia."
Complaint to the Court

Mr O.S. complains under Article 3 of the Convention about his impending expulsion to Gambia. He fears that, "owing to his homosexuality, even a temporary return to Gambia would expose him to a real risk of arbitrary detention, imprisonment and torture".

Question to the Parties

The Court has asked the following question:
"In the light of [Mr O.S.'s] claims and the documents which have been submitted, would he face a risk of being subjected to treatment in breach of Article 3 of the Convention if the expulsion order were enforced?"
Context

As I have previously written here (the last time was in January, concerning the case of M.B. v Spain) this case has to be seen in the light of the fact that the Court has never held that the deportation of a gay person to a country of origin, outside the Council of Europe, that criminalises same-sex sexual activity amounts to a violation of any aspect of the Convention. 

The Convention has been in force for nearly 64 years and the Court has contributed little (if anything) 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. 

This, as I argued here, amounts to a shameful history.

The Council of Europe's approach to the issue of asylum and sexual orientation discrimination, including the case law of the Court, is summarised in my recent chapter which is available here: 

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2927098

Wednesday, 12 April 2017

European Court of Human Rights communicates further complaints against Russia regarding LGBT rights

The European Court of Human Rights has communicated Ecodefence and Others v Russia, which is a case against the Russian Federation comprising a large number of individual applications. Four of the applications are by LGBT focused organisations.

The complaints, which are made under Articles 10 (freedom of expression), 11 (freedom of assembly and association), and 14 (prohibition of discrimination) of the European Convention on Human Rights, concern the "Foreign Agents Act".

In 2012, the Foreign Agents Act introduced the concept of a “foreign agent” into the Law on Non-Commercial Organisations which had the effect of regulating Russian non-commercial organisations that receive funds and other property from foreign States and which engage in "political activity" (defined as participating "in the organisation and implementation of political actions in order to influence State authorities’ decision-making affecting State policy and public opinion").

The law requires all organisations exercising the functions of a “foreign agent” to seek registration with the Ministry of Justice. Such "foreign agent" bodies are subject to routine, unscheduled inspections. They are also required to label their publications as those of a "foreign agent". An organisation not complying with the law can be subject to criminal sanction.

The LGBT-focused complaints

The facts in the four applications that have an LGBT focus are as follows:

Rakurs v. Russia (application no. 44403/15, lodged on 04.09.2015) 

Full Russian name of the applicant organisation: Архангельская региональная общественная организация социально-психологической и правовой помощи лесбиянкам, геям, бисексуалам и трансгендерам (ЛГБТ) "Ракурс" 
Representative before the Court: I. Khrunova
Place of registration: Arkhangelsk
Mission of the applicant organisation: Protecting human dignity, rights and interests of victims of homophobia and discrimination; support and rehabilitation of LGBTs.
Date included in the register (or other type of interference): 15.12.2014
Date and authority that carried out the inspection: Arkhangelsk and Nenetskiy Region Justice Department, November-December 2014.
Actions taken to constitute political activities: Organising a seminar on communication problems between homosexuals and physicians, a round-table discussion on facts and myths relating to homosexuals and bisexuals; promoting non-discrimination and fighting against discrimination on the ground of sexual orientation; holding a training for medical doctors on prevention of HIV and sexually transmitted diseases in homosexual community; psychological assistance to the LGBTs’ next-of-kin; organising seminars on transgender issue, legal formalities in case of gender reassignment, “coming out” initiatives; protesting against the law on propaganda of homosexuality and advocating for protection of transgender people’s rights; meeting with representatives of the “Yabloko”, Russian opposition party; organising a round-table discussion on xenophobia and stigmatising and posting publication on this issue on a website; assisting to MSMs (men who have sex with men); discussing laws relating to LGBT community; participating in seminars on HIV prevention and on LGBT movement; organising flash mobs against discrimination of LGBTs; organising training on how to engage more volunteers to assist LGBTs; discussion on the issue of gender and gender equality; organising trainings on LGBTs’ health issues and posting information on this training on the Internet, security issues and rights of LGBTs in Russia; promoting amendments to Russian law to protect the LGBT community; distributing materials on discrimination on the ground of sexual orientation, submitting these materials to a library; storing materials on unisexual families, status of LGBTs, discrimination on the ground of sex orientation, a flyer describing a “homophobic law” adopted by the St.-Petersburg parliament; meeting with representatives of the USA parliament; making statements on discrimination of LGBTs in Russia on CNN, American television channel.
Foreign funder(s): Nordic Council of Ministers, Oslo Universitetssykehus HF, Civil Rights Defenders, OSIAF, Purpose Action Ins., Stichting Internationaal Onderwijs, Front Line Defenders, NED, Arcus Operating Foundation, Embassy of the Netherlands
Judicial decisions: 12 February 2015, Justice of the Peace of the Solombalskiy Court District, fine for failure to register as a foreign agent.
Any additional findings in the court proceedings: None. The courts fully endorsed the findings of the inspection. 

Maximum Centre v. Russia (application no. 49258/15, lodged on 30.09.2015)

Full Russian name of the applicant organisation: Мурманская региональная общественная организация "Центр социально-психологической помощи и правовой поддержки жертв дискриминации и гомофобии "Максимум"
Representative before the Court: I. Khrunova
Place of registration: Murmansk
Mission of the applicant organisation: Protecting and rehabilitating LGBT persons and protecting their rights; providing legal assistance; contributing to the elimination of discrimination and homophobia.
Date included in the register (or other type of interference): 04.02.2015
Date deleted from the register: 28.10.2015
Reason for deletion: Liquidated
Date and authority that carried out the inspection: Murmansk Region Justice Department, December 2014-January 2015.
Actions taken to constitute political activities: Organising a protest against xenophobia, violence and discrimination, “the Rainbow flash mob” on the International Day against Homophobia; supporting school teachers dismissed because of their sexual orientation; lodging applications with State authorities to have protests against xenophobia and discrimination; cooperating with other LGBT organisations; inviting minors to an LGBT centre where material on being LGBT was available; participating in events organised by the Russian LGBT network; publishing statements criticising Russian laws; cooperating with the Regional Youth Human Rights Council.
Foreign funder(s): Civil Rights Defenders, General Consulate of the Netherlands, Arcus Operating Foundation
Judicial decisions: 10 March 2015, Justice of the Peace of the Leninskiy Court District of Murmansk, fine for failure to register as a foreign agent.
Any additional findings in the court proceedings: None. The courts fully endorsed the findings of the inspection.

Perm Human Rights Centre (Perm HRC) v. Russia (application no. 35816/16, lodged on 08.06.2016)

Full Russian name of the applicant organisation: Общественная организация "Пермский региональный правозащитный центр"
Place of registration: Perm
Mission of the applicant organisation: Protecting human rights, particularly those of prisoners and the victims of crimes committed by law-enforcement officers.
Date included in the register (or other type of interference): 03.09.2015
Date and authority that carried out the inspection: Perm Region Justice Department, June-July 2015.
Actions taken to constitute political activities: Publications on and participation in discussions on respect for human rights in Perm prisons, the reform of the law-enforcement authorities, the recruitment of staff for human rights organisations, the protection of areas of cultural heritage, the equality of convicted persons, the prison officers’ ethics code, public monitoring committees, gender education, human rights, security and dignity in detention facilities, pro bono legal assistance in Russia, political competition, the interaction between human rights activists, defenders and the LGBT community, civil investigations, public control, amendments to defamation law, the right to work in detention facilities, access to information at police stations and courts, human rights and the work of psychologists in the penal system, the support of juvenile offenders, migrants’ human rights, international cooperation between NGOs, freedom of assembly, the law protecting children from harmful information, Perm’s town charter, the prevention of offences in detention facilities, correctional labour, transparency at the Perm Parliament, the interpretation of information provided by State authorities, the Foreign Agents Act, the right to spa-based therapy in Perm, conditions of detention, and xenophobia; monitoring respect for the right to information and work, children’s rights in Perm detention facilities, the issue of migrants and the Perm labour market, State authorities’ measures on the prevention of crimes and the rehabilitation of criminals; preparing recommendations sent to the authorities; inviting representatives of State authorities to some of the above events; the conviction of a Perm HRC board member, Mr Yushkov, of incitement to extremist actions, and the publication by a founder, Mr Averkiyev, of an article on Russian nationalism, liberalism and sexism on his website.
Foreign funder(s): UNDEF, Macarthur Foundation and European Union
Judicial decisions: 13 October 2015, Justice of the Peace of the Leninskiy Court District, fine for failure to register as a foreign agent.
Any additional findings in the court proceedings: None. The courts fully endorsed the findings of the inspection.

Coming Out v. Russia (application no. 4798/15, lodged on 20.01.2015)

Full Russian name of the applicant organisation: Автономная некоммерческая организация социально-правовых услуг "ЛГБТ организация Выход"
Representative before the Court: D. Bartenev
Place of registration: St Petersburg
Mission of the applicant organisation: Fighting for universal recognition of human dignity and equal rights for all, regardless of sexual orientation or gender identity.
Date included in the register (or other type of interference): No registration. Nature of interference: inspection
Date and authority that carried out the inspection: Prosecutor’s Office of the Tsentralnyy District of St Petersburg, October 2013.
Actions taken to constitute political activities: Protesting against the existence of an administrative offence of promoting homosexuality to minors; publishing guidelines on LGBT discrimination inciting people to protest against the administrative offence; holding a protest against politicians who did not support the values of love, family and human dignity.
Foreign funder(s): Embassies of the Netherlands and Norway
Judicial decisions: 21 July 2014, Vasileostrovskoy District Court of St Petersburg, allowing the prosecutor’s claim for forced registration.
Any additional findings in the court proceedings: The court held that the restrictions prescribed by the Foreign Agents Act did not breach the Convention, and that the guidelines on LGBT discrimination did not contain any direct appeal to influence State authorities’ decisions and change the political line. However, they aimed to shape public opinion. The court further held that there was no need to prove that an organisation had actually influenced State authorities’ decisions, the mere assumption of potential influence being sufficient.

Complaints to the Court

The applicants complain under Articles 10 and 11 regarding the quality of the Foreign Agents Act, their persecution for failing to register as foreign agents, and excessive State control.

The applicants also complain under Articles 10 and 11 taken in conjunction with Article 14 that they are subjected to discrimination and to restrictions and excessive reporting obligations while other NGOs are exempt from such duties. 

Questions to the Parties 

The questions communicated by the Court to the parties in respect of the LGBT focused applications are as follows:

1. In respect of all the applicants, was there a violation of Articles 10 and 11 of the Convention? In particular:
(a) Do the provisions of the Foreign Agents Act meet the “quality of law” requirements  contained in Article 10 § 2 and Article 11 § 2 of the Convention? In particular:
(i) Is the definition of the term “foreign agent” sufficiently clear and foreseeable?
(ii) Are the provisions on foreign financing foreseeable? Does Russian law establish any specific amount, period or form of foreign financing in order for an entity to be recognised a foreign agent?
(iii) Is the definition of “political activity” sufficiently clear and foreseeable in its application?
(iv) Are the labelling requirements formulated with sufficient clarity? Does the national law prescribe with sufficient clarity what material requires labelling or from where the material should originate?
(v) Is the amount of the fine for failure to register as a foreign agent sufficiently foreseeable?
(b) Was the interference “necessary in a democratic society”? Were the reasons for the interference “relevant” and “sufficient”? In particular:
(i) Were the negative connotations of the term “foreign agents” considered when choosing a name for organisations receiving foreign funding? Was such branding “necessary in a democratic society”?
(ii) Was the restriction of applicants’ access to foreign funding “necessary in a democratic society”? What were the consequences of such restriction in terms of the availability of alternative funding? The Government are requested to illustrate their response with specific examples.
(iii) Did registration as a foreign agent have an impact on the applicants’ ability to freely express their ideas and carry out political activity? Was the suppression of the applicant organisations’ free debate and political activities necessary in a democratic society?
(iv) Are the additional reporting requirements applicable to the applicant organisations – such as labelling publications, keeping separate records of income or expenses obtained from foreign sources, submitting reports on activities and the composition of their management bodies, and auditing – proportionate to the aim pursued, and do they impose an excessive burden on the applicants?
(v) Are the sanctions for violation of the Foreign Agents Act proportionate to the gravity of the imputed offences? Did the domestic courts weigh the amount of a fine against the financial standing of an applicant organisation and the potential impact of the fine on the organisation’s sustainability?

2. As regards Article 14, have the applicants suffered discrimination in the enjoyment of their Convention rights on account of their being labelled as foreign agents, contrary to Article 14 of the Convention, read in conjunction with Articles 10 and 11?