Friday, 26 July 2013

M.K.N. v Sweden - a failure of empathic imagination?

I am delighted to post an insightful and thoughtful commentary by Dr. Loveday Hodson on the recent judgement in M.K.N. v Sweden. Many thanks to Loveday for taking the time to write this excellent piece.



During this, the hottest period the UK has seen in some years, I am compelled to respond to Paul Johnson’s urgent call in this blog for more heat in the discussion on the European Court of Human Rights’ recent judgment in M.K.N. v Sweden.  I am, in particular, drawn to the failing that his critique implies in the legal imagination, a failing that stifles law’s capacity to respond empathically to suffering.

The facts of the case are set out concisely in that author’s post; but, to briefly restate, the case concerned the potential deportation of a married Iraqi man who had entered Sweden in 2008 and unsuccessfully applied for asylum.  Among his claims, and of particular relevance to readers of this blog, was his contention that a homosexual relationship he had had in Iraq, discovered by the Mujahedin, meant that his deportation would involve a violation of Article 3 of the Convention.  He contended that his partner in that relationship had been stoned to death.  As presented by the Court, this aspect of the applicant’s claim was made belatedly in the proceedings before both national and international tribunals.  Further, it was a claim unsubstantiated by supporting evidence.  Consequently, the Court had little difficulty in rejecting it.

Johnson is clearly troubled by the resounding silence that has greeted this judgment, a judgment that he finds leaves a number of questions unanswered.  I have to confess, I have had some difficulty in sharing his chagrin with the Court on this particular occasion.  In his first commentary on this judgment, Johnson professed himself troubled by the question: how could the applicant in this instance prove his homosexuality?  As he acknowledges, however, the actual question posed by the Court was rather different: had the applicant adduced evidence capable of proving there existed substantial grounds to believe that, if returned to Iraq, he would be at real risk of treatment contrary to Article 3 as a result of a previous homosexual relationship?  The Court was quite clear that he had failed to do so.  No evidence was forthcoming that the applicant had been in a homosexual relationship, let alone that the relationship had come to the attention of the Mujahedin and consequently placed him at real risk of ill-treatment.  The applicant contended this aspect of his claim was made belatedly as he had not known that homosexuality was accepted in Sweden.  The Court responded that it was satisfied that the asylum process had been confidential and accessible to the applicant.

The applicant made no bones of the fact that he intended to continue to live a heterosexual, married life.  Johnson argues in his second post on this judgment, “the fact that the applicant did not claim to be a homosexual should not diminish the validity or legitimacy of his complaint about potential persecution based on a previous homosexual relationship”.  Here Johnson seems to rather misrepresent the Court’s position.  The Court did not say that a homosexual encounter could not lead to a successful non-refoulement claim by a married person.  Rather, it held that the applicant’s stated intention to live a married and heterosexual life meant that, if internally relocated, there were no grounds established to demonstrate that his previous relationship would place him at risk.  In fact, the Court barely addressed this point, and placed much greater emphasis on the fact that this aspect of the claim was not made until after the initial asylum application was unsuccessful and it was also included in the initial application to the Court.  In short, the applicant’s claim lacked credibility.

My initially reading of this judgment left me largely unperturbed by its outcome.  And yet, and yet…

In common with Johnson, I do find that the all-too-swift dismissal of the applicant’s stated vulnerabilies sits uncomfortably.  There is something dehumanising about the Court’s analysis of the applicant’s claim.  Firstly, my discomfort lies in the sociologically-informed knowledge that individuals face a herculean task when asked to prove wrongs at an international level.  Without support or resources, the task is an almost impossible one.  As Johnson rightly notes, this is only compounded in cases that require applicants to surmount feelings of shame and majoritarian repression.  These difficulties form the background to the enormous numbers of inadmissible applications to the Court that we lawyers pay scant attention to.

Perhaps more forceful yet, however, is my sense that the Court found that this applicant has failed somehow in the implicit task of fitting his sexuality into a category that would perhaps have made little sense to him.  Without the process of consciously labelling oneself as gay – a process, I would argue, that is specifically Western – how would one ever become recognised (to adopt the Court’s phrase) as a ‘real’ homosexual?  What does this term mean?  The applicant may well not have been truthful about his homosexual relationship – that much is clear. Empathic imagination, however, demands that we are at least able to ask the question, ‘what if…?’  That is almost certainly the question that the legal imagination, in its demands for certainty, cannot bear to confront.

Now more prepared to acknowledge the difficulties and unanswered questions in this case, on second-reading the Court’s application of its case-law seems less sure-footed.  In fact, it becomes clear that the Court never seriously considered whether the applicant could safely return and internally relocate in spite of his homosexual relationship.  It was clear that the Court was simply not persuaded that the relationship had taken place at all.  Was it right to end its analysis where it did?  The Court acknowledged that asylum seeker’s face particular difficulties in substantiating their claims, and therefore they should be afforded “the benefit of the doubt when it comes to assessing the credibility of their statements” (para. 27).  The Court has previously held that “when information is presented which gives strong reasons to question the veracity of an asylum seeker’s submissions, the individual must provide a satisfactory explanation for the alleged discrepancies” (Collins and Akaziebie v Sweden).  In this case, what such information presented that would shift the burden of proof?  The only explanation appears to be the applicant’s tardiness in the making of the claim.  This, I would suggest, was insufficiently strong reason to shift the burden of proof to him.

Monday, 22 July 2013

M.K.N. v Sweden

It has been over three weeks since I first reported the judgment of the European Court of Human Rights in M.K.N. v Sweden

In its judgment the Court dismissed the applicant's complaint that his deportation from Sweden to Iraq would put him at risk of being subject to treatment in violation of Article 3 of the European Convention on Human Rights. 

The applicant, a married man with a wife and two children, claimed that one of the reasons that he was at risk of treatment that would violate his Article 3 rights was because of potential persecution in light of a previous homosexual relationship.

The applicant stated:

'after his departure from Iraq, the Mujahedin had found out that he had had a homosexual relationship and that, as a consequence, his partner had been stoned to death. The Mujahedin had also been looking for the applicant in 2009 due to this relationship. He had not revealed this information earlier as he had not been aware that homosexual relationships were accepted in Sweden. Despite this relationship, his intention was to continue living with his wife'.

In the time since I reported this judgment there has been (as far as I can see) no other discussion in any Internet fora of the homosexual aspect of the complaint. Apart from the report of the judgment by the excellent European Courts blog, no one has given serious consideration to the risk of homophobia raised by the applicant.  

As I reported in my earlier post, one of the key issues of this complaint was that the applicant did not claim to be gay. The complaint did not involve the applicant either attempting to prove a homosexual sexual identity or demonstrate his desire to live in the future as a man with a homosexual sexual orientation. On the contrary, the applicant stated that he wished to continue living with his wife. 

However, as I also argued in my previous post, the fact that the applicant did not claim to be a homosexual should not diminish the validity or legitimacy of his complaint about potential persecution based on a previous homosexual relationship. The applicant's complaint, that a previous homosexual relationship put him at risk of being subject to treatment in violation of Article 3, should be considered irrespective of his present sexual identity or intimate relationship. 

I find the lack of interest in this case very concerning, especially in light of the behaviour of the Court. The Court gave no serious consideration to the issue of homophobia raised by the applicant. Furthermore, in dismissing the applicant's claim as 'not credible' the Court provided no explanation of why it did not believe the applicant's account. 

There is no doubt that the facts in this case were weak but, as I argued in my previous post, there are many possible reasons for this and these could have been given more robust consideration. The Court could have engaged in a more reasoned analysis of how it is possible to prove homosexuality (in the form of a previous homosexual relationship) under the circumstances of the applicant. The Court could also have considered why an individual in the applicant's position might decide not to reveal such information immediately to immigration authorities.  

My central concern about this judgment, and the lack of response to it, is that those who do not claim to be gay and attempt to convince the Court of a homosexual sexual identity will potentially be overlooked and forgotten. This is worrying because those who do not wish to assert a homosexual identity (for whatever reason) are as vulnerable to homophobia as those that do. 

Whilst the facts in this case were indeed weak, the issues the judgment raises are important and this case deserves more discussion and debate. 

Monday, 15 July 2013

Same-sex marriage in England and Wales, a result of 'collusion' with the European Court of Human Rights?

The UK House of Lords today passed the Marriage (Same Sex Couples) Bill 2013 at Third Reading without division. 

Soon after Baroness Stowell of Beeston moved the motion 'That the Bill do now pass', Lord Framlingham made a final impassioned speech against it. 

In his speech, Lord Framlingham asserted that the reason the Bill had been presented to Parliament was a result of a collusion between the Government, the Equal Love campaign, and the European Court of Human Rights:

"The questions that many are asking are: why now and why the haste? The simple truth is that the coalition Government have colluded with equal love campaigners and the European Court of Human Rights in bringing a case—an appeal—against our country’s long-established and settled position on marriage. There was a suggestion—some would call it a threat—that if legislation were not brought forward by June this year then changes would be forced on us. The House of Lords Library tells me that as legislation is proceeding the case in the European Court of Human Rights will probably not now be pursued. What outrageous, behind-the-scenes arm twisting."

Lord Framlingham has clearly not been keeping up with ECHR jurisprudence and is not a regularly reader of HUDOC. If he was, he would know how unlikely such a 'collusion' is, given that the Court has now repeatedly stated that no right exists to same-sex marriage under the Convention. 

The understanding of the House of Lords library staff about the Equal Love complaint not being pursued is advice that Lord Framlingham can probably rely on, given that marriage for same-sex couples will soon be available and a review of opening up civil partnerships for opposite-sex couples will follow.

However, Pink News does report Peter Tatchell as stating that “[o]ur campaign isn’t over yet. This legislation includes six discriminatory aspects, which we will seek to overturn in a subsequent bill'. Such a statement will satisfy at least one Briton, Sir Gerald Howarth, who may regard this as vindication that some in the 'aggressive homosexual community' regard the Marriage (Same Sex Couples) Bill as 'a stepping stone to something even further'.

Friday, 12 July 2013

Recently communicated complaint - Association 'Accept' and Others v Romania

The European Court of Human Rights has communicated the complaint in Association 'Accept' and Others v RomaniaThe applicants are members of an NGO in Romania that exists to promote the rights of sexual minorities.

The complaint relates to the requirement under Romania law that all organisations provide details of their membership for publication in the public register of associations. The applicants complain under Articles 8, 11 and 14 (as well as Article 6 and Article 1 of Protocol 12) of the European Convention on Human Rights that this requirement unnecessarily interferes with their freedom of association, their right to respect for private life, and that it is discriminatory. 

The applicants claim that the requirement to disclose membership information is discriminatory because it does not take into account that, as members of a group that advocates for the rights of sexual minorities, members fear that if their names and addresses are published it will compromise their safety given the degree of intolerance in Romania towards homosexuality. Discrimination is created, they allege, because the law treats all organisations equally and does not take into account their special circumstances and needs.

This is an interesting complaint because rather than complaining about differential treatment created by law the applicants are complaining about the failure of law to recognise difference. 

There is case law in the Court to support the applicants. In Thlimmenos v Greece the Court held that: 

'[...] the right under Article 14 not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is violated when States treat differently persons in analogous situations without providing an objective and reasonable justification [...] However, the Court considers that this is not the only facet of the prohibition of discrimination in Article 14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.'

This supports the applicants' complaint that a law that applies to everyone equally and thereby fails to recognise the serious and negative consequences for vulnerable groups amounts to (indirect) discrimination under Article 14 of the Convention. 

Wednesday, 10 July 2013

Vinter and Others v the United Kingdom

The Grand Chamber of the European Court of Human Rights yesterday issued its judgment in Vinter and Others v the United Kingdom. 

This multi-applicant judgment addresses the complaint made by Peter Moore about his 'whole life' sentence following his conviction in 1996 for four separate murders of homosexual men.

Mr Moore complained that the irreducibility of a whole life order under English law amounted to a violation of Article 3 of the European Convention on Human Rights.

The Court applied the previously established principle that '[w]here national law affords the possibility of review of a life sentence with a view to its commutation, remission, termination or the conditional release of the prisoner, this will be sufficient to satisfy Article 3'.

In light of the current composition of English law, which does not provide a dedicated mechanism for the review of whole life orders, the Court concluded that it was 'not persuaded that, at the present time, the applicants’ life sentences can be regarded as reducible for the purposes of Article 3 of the Convention'.

The Court held by 16-1 that there had been a violation of Article 3 of the Convention.

For the avoidance of doubt, the Court included in its judgment an explicit clarification of the meaning of its judgment:

'...the Court would note that, in the course of the present proceedings, the applicants have not sought to argue that, in their individual cases, there are no longer any legitimate penological grounds for their continued detention. The applicants have also accepted that, even if the requirements of punishment and deterrence were to be fulfilled, it would still be possible that they could continue to be detained on grounds of dangerousness. The finding of a violation in their cases cannot therefore be understood as giving them the prospect of imminent release.'


Tuesday, 9 July 2013

Working paper on Russian 'homosexual propaganda' laws

I have posted a substantially revised copy of my working paper on the Russian 'homosexual propaganda' laws.

The revised version takes account of:

  • The enactment of the federal legislation
  • The opinion of the Venice Commission
  • The recent PACE resolutions

It can be downloaded here:

Monday, 8 July 2013

Wednesday, 3 July 2013

Sexual orientation and gender identity - a year in review

The American Bar Association have made available the very useful essay 'Sexual Orientation and Gender Identity' by Professor David Austin (California Western School of Law).  

It provides an overview of developments in human rights law, including the ECHR, in 2012.

It can be downloaded here: