Monday, 24 February 2014

Sexual Orientation and the European Convention on Human Rights: Voices and Perspectives - full programme

The full programme for the "Sexual Orientation and the European Convention on Human Rights: Voices and Perspectives" event at the University of York, on Friday 16th May, is now available here:

There are a small number of places remaining for this event so, if you would like to attend, please email me.

Saturday, 15 February 2014

Is the European Court of Human Rights behaving irresponsibly in relation to gay and lesbian human rights in Russia?

At a time of increased media attention on laws in the Russian Federation that ban either 'homosexual propaganda' (at a regional level) or propaganda of 'non-traditional sexual relations' (at a national level) to minors, it is worth pausing to consider what action the European Court of Human Rights has taken in respect of these legislative developments.

Although the Court recently communicated the complaint in Bayev v Russia, which contains linked complaints under Article 10 of the Convention about the existence of regional laws regulating 'homosexual propaganda', there has been no judgment in respect of this or any other related complaint. This is despite the application in Bayev being lodged with the Court four years ago, in 2009. 

Of course, all complaints to Strasbourg take a considerable time from application to judgment, but in the absence of the Court having ever issued a positive Article 10 judgment in respect of sexual orientation discrimination, and the increasingly hostile environment for sexual minorities in Russia and other European states, the Strasbourg organs could have ensured that a definitive judgment on this issue was given by now.

This is not to say the Council of Europe have not been dealing with the question of anti-gay law in Russia. The Council of Ministers, in their supervision of the execution of the judgment in Alekseyev v Russia, have made repeated statements about the laws. The Venice Commission issued a strongly worded opinion on the subject back in June 2013, the substance of which was supported in a Resolution by the Parliamentary Assembly of the Council of Europe. Secretary General Jagland has also expressed his concern about homosexual propaganda laws.

Whilst these activities at the Council of Europe are welcome, they are no substitute for a direct judgment from the Court which, if it found that the propaganda laws were in violation of Article 10 of the Convention, would bind the Russian government to undertake measures to address this. If the Court concluded that the mere existence of such laws violated the Convention right to freedom of expression, it would effectively require the Russian Federation to significantly modify if not repeal these laws. 

However, the judgment in Bayev v Russia could be years in the coming. Worse still, no complaint has been communicated about the federal law prohibiting propaganda of 'non-traditional sexual relations' and, because the Court does not make public a list of complaints that have been lodged, it is difficult to know if any complaint has been made. 

As the world looks on to the plight of LGBT people in Russia, and claims about a rising tide of violence are increasingly made, it seems essential that the Court, the highest authority on human rights in Europe, provides a definitive judgment at the earliest time on this central question: do laws that regulate forms of public expression about homosexuality violate the human right to freedom of expression?

Thursday, 6 February 2014

Sabalić v Croatia - newly communicated case

The European Court of Human Rights has communicated the complaint in Sabalić v Croatia

The complaint concerns the lack of an appropriate procedural response by domestic authorities following to an act of violence by a private party motivated by antipathy towards homosexuality.

The applicant suffered an attack in a bar by a man to whom she had disclosed her (homo)sexual orientation. She was hit and kicked all over her head and body causing her multiple contusions on the head and forehead, face, lips, neck, chest, palms of her hands and her knees. During the attack, the man shouted that all lesbians should be killed. 

The attacker of the applicant was prosecuted for minor charged and subject to a fine of 40 Euros.

In the Croatian courts the applicant unsuccessfully complained that domestic authorise had failed to take appropriate action against her attacker.

Complaint to the Court

The applicant complains, under Articles 3 and 8 of the Convention, of the lack of an appropriate procedural response of the domestic authorities to an act of violence by a private party motivated by her sexual orientation.

She further complains, under Article 13 of the Convention, that she did not have an effective domestic remedy concerning her complaints.

Lastly, the applicant complains, under Article 14 taken in conjunction with Articles 3 and 8 of the Convention, that she was discriminated against on the basis of her sexual orientation.

Questions to the parties
  1. Have the State authorities complied with their procedural obligations under Articles 3 and 8 of the Convention?
  2. Did the applicant have at her disposal an effective domestic remedy for her complaints under Article 3 and 8 of the Convention, as required by Article 13 of the Convention?
  3. Has the applicant suffered discrimination on the grounds of her sexual orientation, contrary to Article 14 of the Convention read in conjunction with Articles 3 and 8 of the Convention?
An opportunity to evolve Article 3

My opinion is that this complaint offers the Court an important opportunity to evolve its Article 3 jurisprudence in respect of sexual orientation discrimination. 

The Court could not only find a procedural violation of Article 3 in respect of the violence suffered by the applicant, but also a violation of Article 3 taken in conjunction with Article 14 because the violence was motivated by her sexual orientation.

Such an outcome would be significant, because it would send a clear message to all contracting states that they have a positive obligation to address inhuman and degrading treatment suffered by sexual minorities. 

Recognising the failure of domestic authorities to address homophobic violence as a violation of Article 3 (rather than Article 8) would be a much welcomed development.