Saturday, 30 March 2013

ECHR complaint is likely if same-sex couples cannot marry in Northern Ireland

With same-sex marriage legislation progressing promisingly through the UK Parliament, in the form of the Marriage (Same Sex Couples) Bill, it seems highly likely that marriage will be available to same-sex couples in England and Wales as soon as 2014. A similar legislative process is underway in Scotland in the form of the Marriage and Civil Partnership (Scotland) Bill.

However, in Northern Ireland, the situation is different. Last October, the Stormont Assembly in Northern Ireland rejected a motion to enable same-sex couples to marry. The Green Party and Sinn Fein were in favour of the motion, but it was defeated by the Democratic Unionist Party.

Yesterday, The Rainbow Project and Amnesty International warned Stormont that it will face court action if it fails to enable same-sex marriage when it is available in the rest of the UK.

Possible court action could be brought under the Human Rights Act in the domestic courts and, if that failed to remedy the situation, a complaint could be made to the European Court of Human Rights. Such a complaint to the Court would present a novel legal issue which it has hitherto not considered: the existence of different arrangements for same-sex marriage within a nation state. Whilst the Court has so far been reluctant to recognize a right to same-sex marriage under Article 12 of the Convention, the existence of differences in treatment in marriage within the jurisdictions of the UK based solely on sexual orientation could make a more compelling Article 14 case than those argued in previous applications. What would the Court make of a situation whereby citizens of a Council of Europe state could contract same-sex civil marriage in one part of the state but not in another?   

Thursday, 28 March 2013

Does suggesting someone is gay violate their right to respect for private life?

The European Court of Human Rights has been called upon to consider whether media speculation about the sexual orientation of a 'celebrity' violates rights protected under the Convention.

In Paulina Rubio Dosamantes v Spain the applicant has alleged that rumours circulating in the media that she is bisexual or homosexual constitute an infringement of her right to respect for private life under Article 8 of the Convention. This claim has previously been considered by the domestic Spanish courts, the outcome of which the applicant also complains about under Article 6.

Paulina Rubio is a well known singer in Spain. Her complaint about speculation in three television programmes about her sexual orientation has already been considered by the Spanish courts. The domestic courts rejected her complaint that discussion of her sexual orientation adversely affected her 'honour' because homosexuality could not currently be understood as 'disgraceful'. Her privacy claim was also rejected because the applicant was said to have tacitly consented to the controversy over her sexual orientation and 'played' with it for promotion.

The Court has ruled that the applicant's Article 6 complaint is inadmissible. However, in respect of the Article 8 complaint, the court has decided that it 'does not consider itself in a position to rule on the admissibility of this complaint and considers it necessary to communicate this part of the application to the respondent Government'. The Court has therefore (somewhat unusually) adjourned its decision on the Article 8 issue and will return to it in due course.

Monday, 25 March 2013

The great Article 14 debate goes on

Does all differentiation of people on the basis of sexual orientation constitute discrimination? The European Court of Human Rights has often said that it does not. Even when the Court has found that a state has violated an individual's Convention rights because of their sexual orientation it has often not considered this to constitute discrimination under Article 14 of the Convention.

This practice began in Dudgeon v the United Kingdom when the Court found that the blanket criminalization of consensual adult sexual acts violated Article 8 but did not constitute a form of discrimination under Article 14. Since that time the Court has evolved its approach to Article 14 across all of its jurisprudence and is now more likely to find in favour of an Article 14 complaint when it is taken (as it must be) in conjunction with another aspect of the Convention.

Yet it is interesting to note that the practice in Dudgeon v the United Kingdom, which is now over 30 years old, still forms the basis for disagreement between the Court's judges. In the recent decision in Şükran Aydın and Others v. Turkey, in which the Court held that there had been a violation of the Article 10 rights of the applicant but that there was no need to examine the complaint under Article 14 of the Convention, one dissenting judge invoked the Dudgeon judgment to support his disagreement. Judge Keller said:

'In Dudgeon v. the United Kingdom, the Court found that a complaint against the prohibition of homosexual acts under Article 14 “amounts in effect to the same complaint, albeit seen from a different angle, that the Court has already considered in relation to Article 8”. It therefore concluded that “there is no call to rule on the merits of a particular issue which is part of and absorbed by a wider issue” and that “there is no useful legal purpose to be served in determining whether he has in addition suffered discrimination as compared with other persons who are subject to lesser limitations on the same right. This being so, it cannot be said that a clear inequality of treatment remains a fundamental aspect of the case”. This approach from 1981 is out of date nowadays. If a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case, the Court has to consider the issue under Article 14 as well. The complaint under Article 14 in conjunction with another Convention right is an autonomous one to which the Court must give autonomous meaning' (para 4, references ommitted).

There are those, such as Robert Wintemute, who argue that every violation of a Convention right based on sexual orientation constitutes discrimination under Article 14 of the Convention. I agree. In the absence of a fully functioning Protocol 12, gay men and lesbians are required to bring complaints under Article 14 in conjunction with another right but the Court should always uphold the Article 14 complaint since the violation of any right on the grounds of sexual orientation is rooted in discrimination that Article 14 prohibits.

Friday, 22 March 2013

Hizb ut-Tahrir al-Islami and homosexuality

On Wednesday 20th March I reported that the European Court of Human Rights had delivered its judgment in Kasymakhunov and Saybatalov v Russia. The case involved a complaint by two individuals who were members of Hizb ut-Tahrir al-Islami (The Party of Islamic Liberation) about criminal convictions which, they alleged, violated a range of their Convention rights. A key aspect of the complaint was the allegation that their conviction constituted a violation of their freedoms of religion, expression and association.

It is worth considering the Court's judgment on the issues raised under Articles 9, 10, and 11 of the Covention given Hizb ut-Tahrir al-Islami's public proclemations on homosexuality. For instance, the party have declared that '
Homosexuality is an Evil that Destroys Societies!' and stated that the development of gay and lesbian rights is the result of 'a political system where man makes the law' (rather than god).

Although the Court did not consider the issue of homosexuality specifically, it did pay particular attention to whether the general ambitions of Hizb ut-Tahrir al-Islami could be protected under Articles 9-11 of the Convention. The Court observed that: 'It is significant that the activities of Hizb ut-Tahrir are not limited to promoting religious worship and observance in private life of the requirements of Islam. They extend outside the sphere of individual conscience and concern the organisation and functioning of society as a whole. Hizb ut-Tahrir clearly seeks to impose on everyone its religious symbols and conception of a society founded on religious precepts' (para. 112).

In light of this, the Court held that 'the dissemination of the political ideas of Hizb ut-Tahrir by the applicants clearly constitutes an activity falling within the scope of Article 17 of the Convention' (para. 113).

Article 17 of the Convention provides that: 'Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction on any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention'.

The Court therefore held that: 'The applicants are essentially seeking to use Articles 9, 10 and 11 to provide a basis under the Convention for a right to engage in activities contrary to the text and spirit of the Convention. That right, if granted, would contribute to the destruction of the rights and freedoms set forth in the Convention and referred to above' (para. 113).

This is important is respect of the existence of homophobic hate-speech which is often claimed by those who deploy it to be the expression of religious conviction that should be protected under Articles 9-11 of the Convention.

Wednesday, 20 March 2013

Kasymakhunov and Saybatalov v Russia

The European Court of Human Rights has issued its judgment in Kasymakhunov and Saybatalov v Russia which involved a complaint by two individuals about criminal convictions which, they alleged, were secured on the basis of legal provisions that were neither accessible nor foreseeable. The applicants also complained of a violation of their freedoms of religion, expression and association and of discrimination on account of their religious beliefs.

Both applicants were members of Hizb ut-Tahrir al-Islami (The Party of Islamic Liberation): 'an international Islamic organisation with branches in many parts of the world, including the Middle East and Europe. It advocates the overthrow of governments and their replacement by an Islamic State in the form of a recreated Caliphate. Hizb ut-Tahrir first emerged among Palestinians in Jordan in the early 1950s. It has achieved a small, but highly committed following in a number of Middle Eastern states and has also gained in popularity among Muslims in western Europe and Indonesia. It began working in Central Asia in the mid-1990s and has developed a committed following inside Uzbekistan, and to a lesser extent in neighbouring Kyrgyzstan, Tajikistan and Kazakhstan' (para. 7).

In its adjudication, the Court drew upon information from a report prepared by the International Crisis Group in 2003 entitled 'Radical Islam in Central Asia: Responding to Hizb ut-Tahrir'. That report mentions Hizb ut-Tahrir al-Islami's position on homosexuality:

'In the UK Hizb ut-Tahrir remains very active, particularly in London and in towns with major Muslim populations such as Birmingham, Bradford and Sheffield. It has been notably successful in recruiting students, although it has been banned from many university campuses, because of its anti-Semitism, alleged threatening behaviour towards students of other faiths, and public objections to homosexuality' (para. 45).

The Court declared all aspects of the complaint inadmissible except the Article 7 complaints. It unanimously held that there had been a violation of the Article 7 rights of one applicant, but no violation of the Article 7 rights of the other applicant. 

Monday, 18 March 2013

Council of Europe 'No Hate Speech' campaign

The Council of Europe will soon launch The No Hate Speech Movement, an online youth campaign. The CoE describe it as follows:

To raise awareness, to change attitudes, to mobilise people requires campaigning; acting together for upholding human rights online. Campaigning is also a way to federate and bring together various actors for common purposes and values. The Council of Europe has a tradition of youth campaigns through the “All Different – All Equal” campaigns. The campaign – The No Hate Speech Movement – will be open for anyone to join it online; young people can join from the age of 13. The No Hate Speech Movement will be based on online communities of young people motivated to discuss and act against hate speech online. The campaign will be launched on 21 March 2013 and will run through to April 2014. National campaigns may start earlier and continue after April 2014.

The promotional brochure states:

Hate speech, as defined by the Council of Europe, covers all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin.

Although sexual orientation is not explicitly mentioned in the CoE's definition of hate speech, the European Court of Human Rights has issued a judgment in respect of hate speech and sexual orientation.

In Vejdeland and Others v Sweden, the Court unanimously held that a group who distributed homophobic propaganda could not claim protection under Article 10 of the European Convention on Human Rights.

Friday, 15 March 2013

Kozak v Poland - an update from Poland

On the 12th March 2013 the Polish government submitted an Action Report for consideration by the Committee of Ministers which contains information about the measures undertaken to comply with the judgment in Kozak v Poland. The CoM will consider this at their next quarterly meeting (1172 DH meeting, 4-6 June 2013).

The judgment

In Kozak v Poland the European Court of Human Rights found that the applicant had been discriminated against on the grounds of his sexual orientation and suffered a violation of his right to respect for private life because, after his partner’s death in 1998, he was denied the succession to tenancy of their shared flat. The Court found that the rejection of the Mr. Kozak's application to succeed to the tenancy after his partner’s death, and the subsequent dismissal of his judicial claim on the basis of a Polish law that recognised de facto marital relationships only between opposite-sex partners, constituted a violation of Article 14 taken in conjunction with Article 8 of the Convention.

Kozak v Poland was a significant judgment for a number of reasons and, although seemingly focused on a narrow issue (state housing and tenacy rights), it has implications in respect of a wide range of discrimination based on sexual orientation. In its summary of 'Principles deriving from the Court's case-law', the Court made one of its strongest statements to date about how a difference in treatment based on sexual orientation should be understood in respect of Article 14:

'Sexual orientation is a concept covered by Article 14. Furthermore, when the distinction in question operates in this intimate and vulnerable sphere of an individual's private life, particularly weighty reasons need to be advanced before the Court to justify the measure complained of. Where a difference of treatment is based on sex or sexual orientation the margin of appreciation afforded to the State is narrow and in such situations the principle of proportionality does not merely require that the measure chosen is in general suited for realising the aim sought but it must also be shown that it was necessary in the circumstances. Indeed, if the reasons advanced for a difference in treatment were based solely on the applicant's sexual orientation, this would amount to discrimination under the Convention' (para. 91, my emphasis). 

The Action Report

In its Action Report the Polish government state that the legislation which prevented Mr. Kozak's succession to his partner's tenacy has been repealed and new rules governing succession to lease have been included in the Civil Code (this was already the case at the time of the Court's judgment). They state that pursuant to Article 691 of the Civil Code, as applicable from 10/07/2001, in the event of a tenant's death, a person who has lived in de facto cohabitation with the tenant shall also succeed to the tenancy agreement and, in contrast to previous regulation, the current law does not foresee that the cohabitation must be 'marital'.

The Polish government argue that 'according to the information available by the end of 2011, the Polish courts recognise, for the purpose of Article 691 of the Civil Code, the same-sex partners as de facto cohabitants' and that 'this was further confirmed by the [Polish] Supreme Court in its resolution of 28/11/2012 in the case no. III CZP 65/12, in which it declared that a person living in de facto cohabitation with a tenant – in the meaning of Article 691 of the Civil Code – was a person being with a tenant in emotional, physical and economic relationship, also – a person of the same sex'.

The Supreme Court decision can be found here:

Wednesday, 13 March 2013

Gay Rights in Russia - Alekseyev v Russia update

Following up on my post of 5th March here are the decisions of the Committee of Ministers of the Council of Europe, from their 1164th meeting on 7th March 2013, in respect of their ongoing supervision of the judgment in Alekseyev v Russia:

"The Deputies

1. recalled the assurances given by the Russian authorities according to which the right to freedom of assembly, as provided by Article 11 of the Convention, is guaranteed in Russian law without discrimination on grounds of sexual orientation and called upon the Russian authorities to give direct and practical effect to this right;

2. reiterated in this context their concerns in view of the developments in the law and practice in the Russian Federation, including restrictive practices on the part of the competent local authorities, in particular those of Moscow, and of the adoption of regional laws in an increasing number of regions prohibiting the “promotion of homosexuality” among minors;

3. consequently expressed serious concerns with regard to the current legislative work aimed at introducing prohibition of the "promotion of homosexuality" at federal level and considered that the adoption of such a law could raise serious questions as to the compliance by the Russian Federation with its obligations under Article 46 of the Convention;

4. in the context of this ongoing legislative work, called upon the Russian authorities to give full consideration to the future Venice Commission Opinion “on the issue of the prohibition of so-called propaganda of homosexuality in the light of recent legislation in some Council of Europe member States, including the Republic of Moldova, the Russian Federation and Ukraine” before taking a final stand on these issues."

Point 1 reiterates the previous view of the CoM that the government of the Russian Federation are not currently giving direct and practical effect to the right to freedom of assembly without discrimination on the grounds of sexual orientation (as had been pointed out to them by the three NGOs who submitted further evidence).

Points 2 and 3 relate to the ongoing development of regional and federal law regulating 'homosexual propaganda'.

Point 4 is perhaps the most interesting since it requires the Russian Federation to give consideration to a forthcoming opinion on the propaganda laws by the Venice Commission. This opinion was requested by the Parliamentary Assembly of the Council of Europe's Committee on Equality and Non-Discrimination on 7th December 2012.The Venice Commission are currently preparing this opinion and will adopt it at their next plenary session in June (thanks to Tatyana Mychelova at the Venice Commission for this information). The Venice Commission have prepared a number of earlier opinions on Russia's assembly laws and it will be very interesting to read their analysis and recommendations of the trend in some CoE states that are seeking to curtail freedom of assembly on the grounds of sexual orientation.

Monday, 11 March 2013

Proposition 8, the US Supreme Court and ECHR jurisprudence

The US Supreme Court's consideration of the constitutionality of 'Proposition 8' (the voter-enacted amendment to the Californian Constitution which states that 'only marriage between a man and a woman is valid or recognized in California') begins on 26 March 2013.

There have been a wide range of Amicus Curiae Briefs submitted in respect of the central question addressed in Hollingsworth v Perry: 'Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman'.

Two of the Amicus Curiae Briefs, which are diametrically opposed in their analysis of the compatibility of Proposition 8 with the US Constitution, cite judgments of the European Court of Human Rights in support of their argument.

For Proposition 8

The brief prepared by the 'International Jurists and Academics' (IJA) - 17 individuals from around the world - cites several ECtHR judgments. The central argument of the IJA is that the 'overwhelming weight of international authority [...] is that reserving the formal institution of “marriage” to opposite-sex couples while supporting same-sex couples through other rights and legal mechanisms is sound public policy' and that this is 'based not on irrationality, ignorance, or animus toward gays and lesbians but on considered judgments about the unique nature and needs of same-sex couples and children'.

The IJA include ECHR jurisprudence in their consideration of a wide range of international law. They argue: 'Even the European Court of Human Rights, which has been supportive of sexual orientation claims in a large number of other settings, has declined to recognize a right to same-sex marriage' (my emphasis). 

The IJA draw on the ECtHR's judgment in Schalk and Kopf v Austria to support their claim that same-sex marriage is not a constitutional or human rights issue. They emphasise that in Schalk and Kopf the ECtHR held that Article 12 of the ECHR 'does not impose an obligation [...] to grant a same-sex couple [...] access to marriage'. They also argue that the ECtHR held that it is for nation states to make their 'own determinations about the precise incidents of marriage extended to same-sex couples even if they [do] not create precise equality with those accorded [to] married couples'. 

The IJA go on to cite the ECtHR's judgments in Gas and Dubois v France and H. v Finland to further support their argument that the ECtHR has a developed jurisprudence in respect of rejecting same-sex marriage complaints.

Against Proposition 8 

In the brief prepared by the 'Foreign and Comparative Law Experts' (FCLE) - Harold Hongju Koh, Sarah H. Cleveland, Laurence R. Helfer, and Ryan Goodman - Schalk and Kopf v Austria is cited to support the argument that discrimination in marriage on the basis of sexual orientation is in violation of the US Constitution. The FCLE argue that:

'in Schalk and Kopf v. Austria [...], which held that Austria was not compelled to elevate a couple’s domestic partnership to the status of marriage where Austrian law had not previously bestowed that status, the European Court of Human Rights expressly disavowed discrimination on the basis of sexual orientation. The court highlighted the “emerging European consensus towards legal recognition of same-sex couples,” and made clear that equal marriage was fully consistent with the European Convention for the Protection of Human Rights and Fundamental Freedoms and that same-sex couples constitute family life for purposes of the Convention.'

Which is the stronger argument?

I am (very unsurprisingly) in support of the arguments advanced in favour of same-sex marriage by the FCLE and have little sympathy with the IJA. 

However, specifically in respect of the use of ECHR jurisprudence in the briefs, I would argue that the FCLE makes the stronger case for the following reasons:
  1. Whilst the ECtHR in Schalk and Kopf v Austria did not require Austria to make marriage available to same-sex couples, it did make it very clear that it 'no longer consider[ed] that the right to marry enshrined in Article 12 must in all circumstances be limited to marriage between two persons of the opposite sex'. The primary reason that the ECtHR did not find in favour of the applicants is because, relying on the margin of appreciation, it held that 'marriage has deep-rooted social and cultural connotations which may differ largely from one society to another' and, in light of that, 'it must not rush to substitute its own judgment'. The ECtHR is designed to 'supervise' 47 Council of Europe states that are widely divergent in their social, cultural and legal arrangements. Its role as a European supervisor of human rights often makes it reluctant (rightly or wrongly) to 'substitute' national laws with its own judgments. It therefore has a very different role to the US Supreme Court which acts as a national final court of appeal. The FCLE are therefore correct to emphasise the role that European consensus (and its 'emerging' nature) played in the judgment in Schalk and Kopf v Austria. They would have been justified in going further and arguing that it was as a response to a lack of consensus among European states that the ECtHR urged nation states to decide the matter of same-sex marriage for themselves. In other words, the key relevance of the judgment to the US Supreme Court is not that it sends an 'anti same-sex marriage' message, in the way that the IJA suggest, but that it emphasises the self-determination of states in the area of marriage.  
  2. In respect of the right of states to self-determination in the sphere of marriage it is also important to note, as the FCLE do, that a defining feature of the Schalk and Kopf judgment is the emphasis it places on non-discrimination. In relation to whether the exclusion of same-sex couples from marriage constitutes discrimination contrary to Article 14 of the ECHR taken in conjunction with Article 8 the sitting judges were sharply divided (by four to three) showing the smallest majority on this issue. The opinion of the three dissenting judges (one of who is now President of the ECtHR) is apposite: 'Having identified a “relevantly similar situation” [between same and opposite sex couples], and emphasised that “differences based on sexual orientation require particularly serious reasons by way of justification” [...], the Court should have found a violation of Article 14 taken in conjunction with Article 8 of the Convention because the respondent Government did not advance any argument to justify the difference of treatment, relying in this connection mainly on their margin of appreciation [...]. However, in the absence of any cogent reasons offered by the respondent Government to justify the difference of treatment, there should be no room to apply the margin of appreciation. Consequently, the “existence or non-existence of common ground between the laws of the Contracting States” [...] is irrelevant as such considerations are only a subordinate basis for the application of the concept of the margin of appreciation. Indeed, it is only in the event that the national authorities offer grounds for justification that the Court can be satisfied, taking into account the presence or the absence of a common approach, that they are better placed than it is to deal effectively with the matter'. This supports the view that exclusion from marriage solely on the grounds of sexual orientation constitutes a form of discrimination that is in violation of human rights. 
  3. The IJA cite statements subsequent to Schalk and Kopf v Austria by the ECtHR on same-sex marriage (Gas and Dubois v France and H. v Finland) to support their argument. However, these cases did not concern complaints about exclusion from marriage on the grounds of sexual orientation and the judgments make reference to same-sex marriage only in respect of the broader issues involved. In Gas and Dubois v France, for instance, the applicants were explicitly not challenging the exclusion of same-sex couples from marriage but were complaining about discrimination based on sexual orientation more generally. These judgments do not, as the IJA appear to suggest, expand the ECtHR's jurisprudence on same-sex marriage following Schalk and Kopf v Austria
  4. The IJA draw upon a number of ECtHR judgments, but their accounts are often factually wrong. These errors do not appear to be simply technical but, rather, constitute a deliberate attempt to present the ECtHR as an 'ultra liberal' court that usually finds in favour of homosexuals but has 'drawn the line' at same-sex marriage. For instance, the IJA argue that A.D.T. v. the United Kingdom concerned whether a state could 'ban private taping of homosexual acts'. This is factually incorrect, since the case concerned a complaint about the existence of law that criminalised private and consensual homosexual sex between adults (not the video recording of it). The presentation of the ECtHR by the IJA is therefore misleading.    

Friday, 8 March 2013

New academic article - is the ECHR effective?

One of the world's leading ECHR scholars, Professor Laurence Helfer of Duke University, and international law expert Professor Erik Voeten of Georgetown University, have made available an article that will appear in a forthcoming issue of International Organization

The article, 'International Courts as Agents of Legal Change: Evidence from LGBT Rights in Europe', is an empirical analysis of the influence of the judgments of the European Court of Human Rights on the domestic law of European states. 

The analysis offered by Helfer and Voeten provides an important insight into why and in what contexts the ECHR is important to sexual minorities in Europe. 

Here is the abstract:

Do international court judgments influence the behavior of actors other than the parties to a dispute? Are international courts agents of policy change or do their judgments merely reflect evolving social and political trends? We develop a theory that specifies the conditions under which international courts can use their interpretive discretion to have system-wide effects. We examine the theory in the context of European Court of Human Rights (ECtHR) rulings on lesbian, gay, bisexual and transgender (LGBT) issues by creating a new dataset that matches these rulings with laws in all Council of Europe (CoE) member states. We also collect data on LGBT policies unaffected by ECtHR judgments to control for the confounding effect of evolving trends in national policies. We find that ECtHR judgments against one country substantially increase the probability of national-level policy change across Europe. The marginal effects of the judgments are especially high where public acceptance of sexual minorities is low, but where national courts can rely on ECtHR precedents to invalidate domestic laws or where the government in power is not ideologically opposed to LGBT equality. We conclude by exploring the implications of our findings for other international courts.

The article can be found here:

Thursday, 7 March 2013

Three reasons why the ECHR is important to gay men and lesbians in the UK

In response to recent comments made by the UK Home Secretary, Theresa May, about the benefits of withdrawing or distancing the UK from the European Convention on Human Rights (something that could be achieved through repealing the Human Rights Act 1998) it is worth remembering why the Convention has been important to gay men and lesbians living in the UK and why we need to keep it. 

Here are three reasons:

Without the ECHR all sexual acts between men in Northern Ireland and Scotland may have remained illegal

Although male homosexual acts were partially decriminalised in England and Wales in 1967, they remained criminalised in Scotland until 1980 and Northern Ireland until 1982. The reason why Scotland and Northern Ireland decriminalised male homosexual acts was as a direct result of the judgment in Dudgeon v the United Kingdom by the European Court of Human Rights. The decriminalization in Scotland anticipated the adverse judgment against the UK, and the decriminalization in Northern Ireland was required by the judgment. Without the intervention of the Court this legislative change would have been significantly slower or not happened at all.

Without the ECHR there would be inequalities in the 'age of consent' for homosexual and heterosexual sex

The minimum age for homosexual and and heterosexual acts remained unequal in the jurisdictions of the UK until the decision in Sutherland v the United Kingdom deemed this to constitute discrimination. In England and Wales, Peers in the House of Lords were so resistant to lowering the age of consent for (what was then) acts of buggery and gross indecency that the Labour government was required to use the Parliament Acts 1911 and 1949 to force legislative change in 2000. Without the Convention it is highly unlikely the UK Parliament would have taken this course of action.

Without the ECHR gay men and lesbians might not be able to serve in the armed forces

Until judgments by the Court, most notably Smith and Grady v the United Kingdom, gay men and lesbians could not officially serve in the UK armed forces. When the Court held that the armed forces policy of discharging gay men and lesbians interfered with their Convention rights, the UK government was required to ensure changes were made to end this practice. The widespread cultural change, which has resulted in the contribution of gay men and lesbians to the armed forces being recognized and celebrated, was given an important 'kick start' by the Court. 

Wednesday, 6 March 2013

H.Ç. v Turkey - scope for evolution in ECHR jurisprudence?

On Monday I reported that the European Court of Human Rights have issued Questions to the Parties in the communicated case of H.Ç. v Turkey. The case concerns a complaint about Articles 171, 172 and 173 of the Criminal Code of the 'Turkish Republic of Northern Cyprus' which have the effect of criminalising certain homosexual acts between consenting adult males.

At first glance, this appears to be an 'open and shut' case. Following Dudgeon v the United Kingdom, Norris v Ireland, and Modinos v Cyprus, one would expect the Court to find that the nature of the interference with private sexual conduct (recognised as an aspect of private life protected by Article 8) 'by reason of its breadth and absolute character, is, quite apart from the severity of the possible penalties provided for, disproportionate to the aims sought to be achieved' (Dudgeon § 61). This, as such, would appear to add little to the Court's settled jurisprudence in this area.

However, the complaint in H.Ç. v Turkey does not only concern Article 8. There are three aspects to the applicant's complaint:

  1. The applicant maintained that the criminalisation of homosexual relations constituted an interference with human dignity amounting to degrading treatment within the meaning of Article 3 of the Convention
  2. The applicant complained that the maintenance in force of those provisions of the Criminal Code which criminalise homosexual relations constituted an unjustified interference with his rights as protected by Article 8 of the Convention. 
  3. The applicant also claimed to be a victim of discrimination, in breach of Article 14 taken in conjunction with Article 8.
It is the Article 3 and 14 complaints which provide the Court with the scope to significantly evolve its jurisprudence in this area.

Previous jurisprudence

Article 14 

In its previous considerations of the criminalisation of private and consensual homosexual acts the Court has never found a violation of Article 14. 

In Dudgeon v the United Kingdom, the Court held that there was no need to consider the Article 14 complaint because it 'amounts in effect to the same complaint, albeit seen from a different angle, that the Court has already considered in relation to Article 8' (§ 69). The Court reiterated this in 2001 in the similar facts case A.D.T. v the United Kingdom. Neither Norris v Ireland or Modinos v Cyprus involved an Article 14 complaint.

Article 3

The Court has never considered an Article 3 complaint in respect of the blanket criminalisation of private and consensual homosexual acts. All previous Article 3 complaints that were brought about criminalisation were deemed inadmissible by the former European Commission on Human Rights (for a historical analysis of Article 3 complaints, see my book Homosexuality and the European Court of Human Rights). Indeed, until X. v Turkey in 2012 the Court had never upheld an Article 3 complaint brought in respect of any issue relating to sexual orientation (see my commentatory in Jurist). 

The Article 3 complaint that was made about the prohibition on homosexuality in the armed forces in Smith and Grady v the United Kingdom was ultimately unsuccesful. However, in response to the applicants' claim that they had been subject to invasive investigations into their private lives and discriminatory treatment based on crude stereotyping and prejudice, the Court held that it 'would not exclude that treatment which is grounded upon a predisposed bias on the part of a heterosexual majority against a homosexual minority of the nature described [by the applicants] could, in principle, fall within the scope of Article 3' (§ 119). 

The Smith and Grady judgment is a solid foundation on which to argue that the very existence of law that places individuals under the constant threat of arrest, investigation, prosecution, and imprisonment solely for engaging in private and consensual sexual acts amounts to degrading treatment contrary to Article 3. 

Why is recognition under Articles 3 and 14 important?

Given that Northern Cyprus is the last jurisdiction to criminalise private and consensual male homosexual acts, the Court's judgment in this case might seem unimportant. Since it will not effect any other Council of Europe state, why should we care if the Court recognises the complaint under Articles 3 and 14?

One reason is that the Court's jurisprudence is very important in other jurisdictions around the world, both in terms of how it is applied by national and regional courts and how it is utilised by individual litigants.

A judgment by the Court which held that the criminalisation of private and consensual male homosexual sex constitutes both discriminatory and degrading treatment would send a strong message to those states around the world that continue to enforce such laws. It would also provide litigants with an important legal instrument in contesting continued criminalisation. 

Is the Court likely to uphold the Article 3 and 14 complaints?

Looking at its previous jurisprudence, it would appear unlikely.

Also, in the Questions to the Parties, the Court has excluded all but the Article 8 complaint:

"Having regard to Articles 171-173 of the Criminal Code of “Turkish Republic of Northern Cyprus” and in light of the case Modinos v. Cyprus (22 April 1993, Series A no. 259), has there been a violation of the applicant’s right to respect for his private life, contrary to Article 8 of the Convention?"

However, it is to be hoped that the applicant pursues the Article 3 and 14 complaints and that a positive outcome prevails. 

Tuesday, 5 March 2013

Gay Rights in Russia - Alekseyev v Russia update

Today, at the first of its quarterly meetings to supervise the execution of judgments of the European Court of Human Rights (1164DH meeting), the Committee of Ministers of the Council of Europe will consider compliance by the Russian Federation with the Court's judgment in Alekseyev v Russia

In Alekseyev v Russia, delivered in October 2010, the First Section of the Court held that the repeated refusal to allow the applicant a permit to hold a 'gay rights' parade violated his rights under Articles 11, 13 and 14 of the European Convention on Human Rights. The judgment represents the most significant statement on the rights of sexual minorities to freedom of assembly under Article 11 of the Convention. 

Previous consideration of Alekseyev by the Committee of Ministers

At its meeting in June 2011 the Committee of Ministers placed the judgment under 'enhanced supervision' and has since twice considered the Russian government's response to the individual and general measures required by the Court. The Committee of Ministers did not accept that the Russian Government's response, originally outlined in its submission of 13th October 2010, satisfactorily complied with the judgment.

At its 6th June 2012 meeting the Committee of Ministers:

  • "noted [...] with concern that since the Court’s judgment, the applicant was not able to organise the Gay Pride marches in Moscow and invited the Russian authorities to provide detailed information on the reasons thereof;
  • expressed concerns with regard to different laws on prohibiting propaganda of homosexuality to minors adopted in different regions of the Russian Federation and invited the Russian authorities to clarify how these laws could be compatible with the Court’s conclusions made in the present judgment."

At its 26th September 2012 meeting the Committee of Ministers:

  • "took note of the information and statistics provided by the Russian authorities according to which out of the total number of notifications submitted in respect of events similar to those envisaged by the applicant, only a very limited number of such events could effectively take place;
  • noted in this respect that in the vast majority of cases, the competent authorities, in particular in Moscow, refused to agree the time and place for such events, and that the information provided does not allow the Committee to satisfy itself that these decisions were based on a thorough and objective assessment of the situation as required by the Court’s judgment;
  • reiterated in this context their concerns as regards the use of regional laws prohibiting propaganda of homosexuality among minors to refuse events similar to those concerned by the judgment;
  • observed that this situation calls for further general measures, in particular those regarding the training and awareness raising of the authorities responsible for handling the notifications for holding public events, and invited the Russian authorities to submit a comprehensive action plan in this respect;
  • observed further that the domestic remedy referred to by the Russian authorities may not provide adequate redress in all circumstances as required by the Convention and consequently invited the Russian authorities to adopt the necessary measures, through legislative action if need be."

What the Committee of Ministers will consider at its meeting starting today

The Committee of Ministers will continue its consideration of two inter-related issues in respect of the Alekseyev judgment: the continuing denial of permits to hold gay rights marches in Russia, and the proliferation of law prohibiting 'homosexual propaganda' to minors. 

In respect of the propaganda laws, nine regions of the Russian Federation have now passed laws that provide for the regulation of 'propaganda of homosexuality among minors'. The State Duma passed a federal version of the law at First Reading in January 2013.

The Russian Federation has submitted an updated action plan for consideration by the Committee of Ministers. In this plan, the Russian government submit that:

  • "where organizers of public events in question agreed their actions with the authories, trying to act within the framework of the lawful procedures as well as to comply with the rights and interests of other persons, such events were actually held, including Moscow."
  • "the implementation of the Laws against propaganda of homosexuality among minors demonstrates the clear and unequivocal character of the said laws' provisions as well as the well-balanced approach used by the authorities while applying these provisions. The existing cases of bringing to administrative responsibility or refusals to agree the time and venue for holding public events, based on the prohibition of homosexual propaganda among minors, bear a sporadic character and do not demonstrate any inappropriate limitation of citizens' freedom of assemble and association."

Three NGOs have submitted documentation which contest the government's claims that gay rights marches are able to take place in Russia and that propaganda laws do not interfere with Convention rights of assembly and association:

I will report on the outcome of the Committee of Ministers deliberations in due course.

My analysis of Alekseyev v Russia can be found in Human Rights Law Review or on the website of the Inter-American Court of Human Rights: 

And my comment on Russia's 'homosexual propaganda' laws can be found in Jurist

Monday, 4 March 2013

H.Ç. v Turkey - newly communicated case

The European Court of Human Rights has issued Questions to the Parties in the newly communicated case of H.Ç. v Turkey. This is a significant case because it concerns the continuing criminalization of male homosexual acts in the Turkish Republic of Northern Cyprus.

Male homosexual acts are not criminal in Turkey and nor are they criminal in Cyprus (as a result of Modinos v Cyprus). However, in Northern Cyprus, the law continues to criminalize 'carnal knowledge of any person against the order of nature'.

The complaint to the Court is similar to that in Dudgeon v the United Kingdom insofar as the applicant as not been subject to criminal sanction but claims to be a victim because of the very existence of the law.

Here are the full details:

The applicant, Mr H. Ç., is a citizen of the “Turkish Republic of Northern Cyprus” (the “TRNC”), who was born in 1979 and lives in Nicosia. The President of the Second Section granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 3 of the Rules of Court). He is represented before the Court by Mr J. Cooper and Mr O. Polili, lawyers practising in London and in Nicosia.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is a homosexual and his complaints are directed primarily against the existence of laws in the TRNC which have the effect of criminalising certain homosexual acts between consenting adult males. He states that although he himself has not been arrested, there have recently been arrests of homosexual and/or bisexual men in the TRNC for engaging in consensual same-sex sexual relations, and alleges that he suffers great strain, apprehension and fear of prosecution on account of the legal provisions in question.
B. Relevant domestic law
Articles 171, 172 and 173 of the Criminal Code of the TRNC provide as follows:
“171. Any person who –
(a) has carnal knowledge of any person against the order of nature; or
(b) permits a male person to have carnal knowledge of him against the order of nature shall be guilty of a felony and shall be liable to a term of imprisonment of up to five years.
172. Any person who uses violence to commit either of the offences specified in the preceding Article shall be guilty of a felony and shall be liable to a term of imprisonment of up to fourteen years.
173. Any person who attempts to commit either of the offences specified in Article 171 shall be guilty of a felony and shall be liable to a term of imprisonment of up to three years, and, where the attempt is accompanied by violence, shall be liable to a term of imprisonment of up to seven years.”
The applicant maintained that the criminalisation of homosexual relations constituted an interference with human dignity amounting to degrading treatment within the meaning of Article 3 of the Convention.
The applicant complained that the maintenance in force of those provisions of the Criminal Code which criminalise homosexual relations constituted an unjustified interference with his rights as protected by Article 8 of the Convention. The applicant also claimed to be a victim of discrimination, in breach of Article 14 taken in conjunction with Article 8.
Having regard to Articles 171-173 of the Criminal Code of “Turkish Republic of Northern Cyprus” and in light of the case Modinos v. Cyprus (22 April 1993, Series A no. 259), has there been a violation of the applicant’s right to respect for his private life, contrary to Article 8 of the Convention?

These details are also available on HUDOC:

H. v Finland: transgender persons as collateral victims of prejudice against same-sex marriage

I am delighted to welcome Constantin Cojocariu to the ECHR Sexual Orientation Blog. Constantin, a lawyer working for Interights, has written a guest post on the recent judgment by the European Court of Human Rights in H. v Finland. Since the judgment in November 2012 - which I covered in Jurist - Interights has, on behalf of the applicant, filed a request for the case to be referred to the Grand Chamber of the Court. Full details of Interights' involvement can be found here: Thank you to Constantin for this thought-provoking analysis. 

H. v Finland: transgender persons as collateral victims of prejudice against same-sex marriage
Constantin Cojocariu

That the European Court of Human Rights’ judgment in the case H. v. Finland delivered on 13 November 2012 passed almost unnoticed, is symptomatic of the fact that the widespread discrimination and human rights abuse that transgender persons suffer from remain largely ignored or neglected. Uniquely, such abuse is institutionalised in the form of legislation on the legal recognition of gender identity that includes harsh and extraordinary requirements such as compulsory divorce (as exemplified by this case), forced genital surgery and other medical treatment, and sterilisation. Although the Christine Goodwin v. the United Kingdom judgment represented a breakthrough for transgender rights in that it legitimised the act of crossing across the gender divide, it also stymied any further progress by explicitly allowing states discretion to regulate the process of legal gender recognition, including by imposing the requirements mentioned above. H. v. Finland is one of the Court’s first attempts at grappling with the issue of the compatibility of requirements attached to legal gender recognition with the European Convention on Human Rights. On this occasion, the Court committed some manifest errors, mainly as a consequence of misconstruing H. as a case about same-sex marriage. The Court almost completely ignored the applicant’s family rights claims although they qualify for heightened protection under the Convention. In addition, the Court offered a contradictory interpretation of Article 12 concerning the right to marry, which, it decided, applied and did not apply to the case at the same time. The Court would be well advised to accept the request pending before it that the case be referred to its Grand Chamber, before such an erroneous interpretation of the law becomes too entrenched.

The judgment 

The applicant is a transgender woman. She was assigned the male sex at birth, but in 2006 she was diagnosed with gender identity disorder. She underwent gender reassignment surgery and started living as a woman. The applicant has been happily married to her wife since 1996, with whom she had a child. Although the applicant was able to change her first name to a female name, her personal documents continue to identify her as male. The applicant filed a request to have this information changed in order to reflect her self-identified gender identity as a woman. Domestic courts in Finland rejected her request invoking legislation that made legal gender recognition of a married person contingent on them first obtaining a divorce. 

The applicant turned to the European Court of Human Rights, arguing that the compulsory divorce requirement in Finnish law was in breach of her rights under the Convention. On 13 November 2012 the Court declared the complaint admissible, but rejected it on the merits. In doing so, the Court relied heavily on its judgment in the same-sex marriage case Schalk and Kopf v. Austria. In that judgment, the Court rejected the applicants’ marriage claim on the basis that Article 12 defined marriage as a union between a man and a woman, and, in addition, allowed States discretion to regulate the issue.

Under Article 8, the Court balanced the applicant’s right to legal gender recognition against the State’s interest to protect the traditional institution of marriage. In addition to relying on Article 12 as discussed above, the Court stated that it was essentially up to the applicant to make the choice between her marriage and legal gender recognition. In this context, the Court attached weight to the fact that the applicant had the possibility under Finnish law to turn his marriage ex lege into a same-sex registered partnership that offered similar benefits to marriage. The Court summarily rejected the applicants’ additional claims. In particular, the Court ruled that Article 12 was not applicable to the case since it only concerned the time when marriage was concluded, whereas nothing prevented the applicant from getting married in the first place.


As opposed to previous jurisprudence, on this occasion the Court did not fall back on the margin of appreciation doctrine, but instead engaged in a proportionality analysis on the substance of the case. Even so, in my opinion the Court made some manifest errors. Mainly, the Court construed H. v. Finland as a case concerning same-sex marriage, and consequently applied its precedent in Schalk and Kopf v. Austria to deny the applicant’s claims. However, H. v. Finland concerns primarily the applicant’s quest to live according to her self-identified gender identity, with same-sex marriage being an incidental and undesired outcome. By construing the case in this manner, the Court mistakenly relied on the broad consensus against same-sex marriage in Europe, as per the Schalk and Kopf ruling. Thus, the Court ignored the situation in many European countries which ban same-sex marriage, but which do not at the same time make legal gender recognition contingent on the divorce of the person concerned. Seen through this lens, the relevant consensus changes, to the extent that it actually favours the applicant – according to a 2012 ILGA Europe survey, 24 countries do not require married transgender persons to divorce upon obtaining legal gender recognition (including the six countries that allow same-sex marriage), as opposed to 22 countries that do, with the situation in one country being divided. Germany and Austria stand out among these countries as legal change there occurred as a result of authoritative apex court judgments (the Constitutional Court and the Supreme Court respectively). The situation in these countries fundamentally undermines the Court’s assumption that compulsory divorce legislation is a proportionate means for securing the objective of protecting the traditional institution of marriage as a union between a man and a woman.

The Court largely ignored the implications of compulsory divorce regulations in Finland for the applicant’s marriage and family life, which it did not include in the balancing exercise undertaken under Article 8 of the Convention. Admittedly, in Finland registered partnership is comparable to marriage in terms of the legal benefits offered. However, as the Court itself had emphasized on countless occasions when it was occupied to justify its special status, marriage has social and symbolic connotations that cannot easily be dismissed. This case reveals tensions in the Court’s jurisprudence more broadly, since on the one hand the Court emphasizes the importance of marriage justifying enhanced protection, and yet on the other it trivializes its significance in order to justify why some people (like the applicant) should be deprived of it. In addition, the Court has not considered in any detail the consequences of prolonged uncertainty and of the eventual dissolution of marriage on the applicant’s wife and minor daughter. What matters more though is that, as opposed to the applicants in Schalk and Kopf who demanded recognition of a presumptive right to get married, the applicant in this case benefited from an acquired right, which has to be protected in the interest of legal certainty, which the Court recognized elsewhere as a “an underlying value of the Convention” (Fabris v. France [GC], §66).

This case touches on another grey area in the Court’s case-law, namely that of the material scope of Article 12 and of its relationship with Article 8. As noted above, the Court held that Article 12 was not applicable to this case (§53), although adjudication under this heading could have been a viable alternative to Article 8 insofar as the applicant’s family rights claim was concerned. The Court’s approach is manifestly inconsistent, as it decided that Article 12 applied and did not apply to this case at the same time. On the one hand the Court relied on the strictures of Article 12 (marriage between man and woman, state discretion) to deny the applicant’s claims under Articles 8 and 12, on the other hand it declared Article 12 inapplicable, because it only concerned the foundational act of marriage and not married life as such. In my view, a consistent and logical interpretation of Article 12 left two possibilities to the Court. Either the Court could opt for a narrow interpretation of Article 12 as applying strictly to the foundational act of marriage. In this scenario Article 12 would not be an obstacle to recognising the continued validity of the applicant’s marriage subsequently to her legal gender recognition, as at the time when they got married the applicant and her spouse were a different sex couple. Or, the Court could interpret Article 12 more broadly to apply to married life in general and in particular to any interference resulting in the termination of marriage as exemplified by this case. In this scenario the Court would have to examine whether legislation compelling the applicant to divorce injures the “very substance of the right” to marry in line with its previous jurisprudence.