Monday, 20 October 2014

Recently communicated complaints concerning alleged defamation of a Portuguese TV presenter and mistreatment by Bulgarian police

The European Court of Human Rights has recently communicated the following two complaints:

Sousa Goucha v Portugal 

The applicant is a well-known male television presenter in Portugal. Since 2008, it has been publicly known that he is gay.

On 28 December 2009 one of the channels of the national television service (RTP2) broadcast a live talk-show. In the course of the programme, during a quiz, the following question was asked to the guests: 'Who is the best Portuguese female TV presenter?' The possible answers to the question included the name of three female TV presenters and the applicant’s (which was designated as the correct one).

The applicant was unsuccessful in the domestic courts with regard to his complaint that he was the victim of defamation and insults. 

In his complaint to the European Court of Human Rights, the applicant relies on Article 14 of the Convention, taken with Article 8, to complain that he has been discriminated against by the domestic courts on the grounds of his homosexuality.

Kostadinov v Bulgaria

The applicant, along with more than 80 other people, was arrested during the first Gay Pride event in Sofia in 2008. 

The arrests were made in the context of a heavy police presence at the event as a result of threats of violence against gay men and lesbians from far-right groups. 

The applicant claims he showed no sign of aggression towards the participants of Gay Pride and had no intention to be violent towards them. 

In his complaint to the European Court of Human Rights, the applicant submits that the circumstances of his arrest - in particuar the fact that he was forced to remain for 30 minutes on the ground before the eyes of many passers-by and journalists, the unwarranted use of force against him, his transport to the police station and detention for more than nine hours in undignified conditions - amount to inhuman and degrading treatment contrary to Article 3 of the Convention. 

Under Article 3 of the Convention he also complains that the authorities have failed in their obligation to conduct an effective investigation into his allegations of abuse.

Saturday, 11 October 2014

59th anniversary of the first complaint to Strasbourg about sexual orientation discrimination

This week marks the 59th anniversary of the first complaint to the former European Commission of Human Rights about discrimination based on sexual orientation.

The complaint was lodged on 10 October 1955 by a male applicant, Mr. W.B., who was serving a fifteen month term of imprisonment in Hagen. It was registered by the Commission on 12 October 1955.

Mr. W.B. had been convicted for 'two cases of homosexuality' (contrary to article 175 of the German Criminal Code) and 'attempted serious homosexuality' (contrary to article 175a of the German Criminal Code).

In 1954, at the time of his conviction, the German Criminal Code imposed a total prohibition on male homosexual acts. The extensive regulation of sexual relationships between men was the result of an amendment to the criminal law by the National Socialist German Workers' (Nazi) Party.

Mr. W.B.'s complaint to the Commission

Mr. W.B. complained that his conviction for homosexual acts violated his rights under the following articles of the European Convention on Human Rights:

Article 2 - Right to life
Article 8 - Right to respect for private and family life
Article 14 - Prohibition of discrimination 
Article 17 - Prohibition of abuse of rights
Article 18 - Limitation on use of restrictions on rights

Specifically, Mr. W.B. complained that the existence of law that criminalised male homosexual acts infringed the right to respect for private life (Article 8) and, because it was limited to acts between men, infringed the principle of 'sexual non-discrimination' (Articles 8 and 14 combined).

The Commission's decision

The Commission declared the complaint inadmissible. 

In doing so, it held that:

The Convention 'permits a High Contracting Party to legislate to make homosexuality a punishable offence' and, in respect of Article 8, that 'private and family life may be the subject of interference' by laws 'dealing with the protection of health or morals'.

Furthermore, Article 14 of the Convention 'does not exclude the possibility of a High Contracting Party differentiating between the sexes in the measures it takes with regard to homosexuality for the protection of health or morals'. 

The result of the decision in W.B.

The Commission's terse response (as Robert Wintemute describes it) to Mr. W.B.'s complaint remains astonishing.

The applicant was convicted under laws that had been shaped by German National Socialism - the politics of which the ECHR was developed to respond to.

The Commission's decision established that any regulation of private and consensual homosexual acts between men, including their total prohibition, did not violate any aspect of the ECHR. As such, the Commission implicitly sent the message to gay men: you have no human rights. 

It took 26 years for the Strasbourg organs to change their mind. It was not until 1981 that they finally recognised that the total prohibition of male homosexual acts amounted to a violation of the right to respect for private life.

Remembering Mr. W.B.

Next year, on the 60th anniversary of Mr. W.B.'s complaint to the Commission, I will hold a seminar at the University of York with the provisional title '60 years of complaining: what's left to achieve?'.

Please email me, if you would like to attend!