Tuesday, 26 May 2015

Gay asylum complaint in A.T. v Sweden - AIRE Centre and others' submission to the European Court of Human Rights

The Aire Centre, along with the ICJ, Amnesty International, UKLGIG and ILGA-Europe, have published their joint intervention to the European Court of Human Rights in the case of A.T. v Sweden

The applicant in A.T. v Sweden is an Iranian national who applied for asylum and a residence permit in Sweden. He primarily claimed that he was homosexual and thus would risk persecution upon return to his home country. His application was rejected.

The applicant complains under Articles 2 and 3 of the Convention that his expulsion from Sweden to Iran would expose him to a real risk of being sentenced to death or subjected to torture or ill-treatment because of his sexual orientation.

One of the key arguments made by the interveners is that the Court should establish that 'the existence of laws criminalizing consensual same-sex sexual conduct discloses evidence of a real risk of Article 3 prohibited treatment' or, alternatively, establish 'that there is a high presumption that such laws engender such risk' (§ 18).

The Court has never held that the existence of laws criminalising homosexual acts amounts to a violation of Article 3. It has, of course, held several times that the existence of such laws violates Article 8, but this is of limited value to an asylum seeker contesting deportation from a Contracting State. This is because, as the Court has stated, if a person lived 'under a ban against homosexual adult consensual relations [this] would in Contracting States disclose a violation of Article 8' but '[o]n a purely pragmatic basis, it cannot be required that an expelling Contracting State only return an alien to a country which is in full and effective enforcement of all the rights and freedoms [such as Article 8] set out in the Convention' (F. v the United Kingdom).

However, Article 3 place stronger obligations on Contracting States. Unlike under Article 8, States have no margin of appreciation available to them, or scope for derogation, in terms of their obligation not to return an individual to a jurisdiction where they would be at real risk of ill-treatment amounting to a violation of Article 3. And, as the Grand Chamber held in Saadi v Italy, in cases such as this, 'the Court is [...] called upon to assess the situation in the receiving country in the light of the requirements of Article 3' and '[i]n so far as any liability under the Convention is or may be incurred, it is liability incurred by the Contracting State, by reason of its having taken action which has as a direct consequence the exposure of an individual to the risk of proscribed ill-treatment' (§ 126).

If the Court followed the interveners' recommendation and established that the existence of laws criminalizing consensual same-sex sexual conduct disclosed evidence of a real risk of Article 3 prohibited treatment, then a Contracting State would never be able to return a gay man or lesbian to a country that criminalised (at least in a blanket way) homosexual acts. This would be a major change in the Court's jurisprudence, given that it has never upheld a complaint by a homosexual asylum seeker alleging that deportation would result in discrimination based on sexual orientation. 

Some might argue that the interveners' recommended course of action is exactly what the Court should do because the mere existence of laws criminalising homosexual acts puts a gay man or lesbian at the constant risk of, depending on the context, "torture" or "inhuman" or "degrading" treatment (and/or punishment). 

However, the implications of the Court taking this step would be so significant - in terms of its impact on the immigration policies of Contracting States - that many will regard it as unlikely. 

One decisive factor, in this respect, could be the fact that the Court never held the existence of laws that criminalised consensual homosexual acts between adults in a Council of Europe state to be in violation of Article 3. It could be argued that, in light of the universal repeal and repudiation of such laws in all 47 Contracting States, the Court now has a total consensus on which to establish that the existence of such laws is in violation of Article 3. On the other hand, it could be said that if the Court never held that the existence of such laws in a Contracting States was in violation of Article 3, it is untenable that it should change its approach in respect of jurisdictions outside of the Council of Europe. 

Friday, 22 May 2015

‘Homosexual Propaganda’ Laws in the Russian Federation: Are They in Violation of the European Convention on Human Rights?

The Russian Law Journal has published my article "'Homosexual Propaganda' Laws in the Russian Federation: Are They in Violation of the European Convention on Human Rights?".

The issue also contains an interesting editorial by Chief Editor, Professor Dmitry Maleshin, about the challenges faced by discussing Russian law outside of its national jurisdiction.

Here is the abstract for my article:

This article examines recently enacted legislation in the Russian Federation designed  to regulate so-called ‘homosexual propaganda.’ Through an analysis of the extant jurisprudence of the European Court of Human Rights (Eur. Ct. H.R.) in respect of discrimination on the grounds of sexual orientation, the article considers the extent to which the existence and enforcement of ‘ homosexual propaganda’ laws can be said to violate rights and freedoms guaranteed by the European Convention on Human Rights (ECHR). The article demonstrates weaknesses in current Eur. Ct. H.R.’s jurisprudence – specifically in relation to Arts. 10, 11 and 14 of the ECHR – and argues that it requires significant evolution to better protect sexual minorities in Russia and elsewhere.

It can be found here:

Thursday, 21 May 2015

Updated list of complaints to Strasbourg relating to sexual orientation discrimination

I have updated the chronological list of complaints to the European Court of Human Rights and former European Commission of Human Rights in respect of sexual orientation discrimination. I had not updated the list since January 2014, so it now contains a number of new decisions and judgments. 

The revised list can be found here:


Saturday, 16 May 2015

Beliefs about the European Court of Human Rights in the UK Parliament

Following the recent election of a majority Conservative government in the UK, there is a strong potential for significant changes to be made to the relationship between the UK and the European Court of Human Rights. Such change may take the form of incremental attempts to limit various aspects of the Court's jurisdiction, or it may take the form of the UK withdrawing from the Convention system altogether.

The Conservative Party's ambitions for change draw upon (and encourage) widespread and growing mistrust of the Court in the UK. In response to what can be seen as the progressive ‘folk deviling’ of the ECtHR in the UK, I have made available on SSRN a forthcoming chapter that explores how beliefs about the ECtHR are created and sustained. 

The chapter focuses attention on beliefs about the ECtHR that are expressed by members of the UK Parliament. Through an analysis of parliamentary debates, the chapter examines how parliamentarians discursively represent their beliefs about the ECtHR and how these beliefs come to achieve degrees of collective acceptance among MPs and Lords. As the analysis of parliamentary debates shows, the ECtHR is often depicted as a biased institution that poses a risk to the human rights of large sections of the UK population. 

If it is accepted that parliamentary discourse has an influence on wider public perceptions and opinions, then the beliefs expressed by parliamentarians that are outlined in the chapter should be of concern to anyone with an interest in encouraging a balanced and informed understanding of the ECtHR among the population of the UK.

The chapter can be accessed here:

Wednesday, 13 May 2015

The judgment in Identoba and Others v Georgia is a triumph for LGBT rights in Europe

Yesterday's judgment in Identoba and Others v Georgia, which I wrote about here, is a triumph for LGBT rights in Europe. For the first time, the European Court of Human Rights has recognized that 'hate crime' committed against individuals based on sexual orientation amounts to a violation of Article 3 taken in conjunction with Article 14 of the European Convention on Human Rights.

The significance of the judgment is that the Court has gone beyond recognizing that the peaceful assembly of LGBT associations is protected by Article 11 (freedom of assembly and association) taken in conjunction with Article 14 (prohibition of discrimination) of the Convention (see, for example, Alekseyev v Russia) and now also recognizes that homophobic attacks against those participating in such assemblies amounts to a breach of Article 3 in conjunction with Article 14.

Why is Article 3 taken in conjunction with Article 14 important for LGBT individuals? 

The application of Article 3 to complaints about acts of hatred against LGBT people is important because Article 3 enshrines the absolute guarantee that:

'No one shall be subjected to torture or to inhuman or degrading treatment or punishment'.
Because Article 3 is written in unqualified terms, a state has no 'discretion' (no margin of appreciation) in meeting its obligations under it. Article 3 (taken in conjunction with Article 1) imposes on the state a positive obligation to ensure that all individuals within its jurisdiction are protected against all of the forms of ill-treatment that are prohibited, including ill-treatment that is administered by private individuals. 
The positive obligation that Article 3 imposes means that states must take both preventative and investigative action in respect of any ill-treatment of individuals. This means that states must provide effective protection of an individual or individuals from the criminal acts of a third party, as well as to take reasonable steps to prevent ill-treatment which authorities know or ought to known about. In addition, states must conduct effective official investigations into alleged illtreatment even if such treatment has been inflicted by private individuals.
When investigating allegations of illtreatment, states are under a duty to take all reasonable steps to unmask possible discriminatory motives. This is where Article 14 of the Convention becomes relevant, because it prohibits discrimination in the 'enjoyment of the rights and freedoms set forth' in the Convention. As the Court said in Identoba and Others v Georgia:
'Treating violence and brutality with a discriminatory intent on an equal footing with cases that have no such overtones would be turning a blind eye to the specific nature of acts that are particularly destructive of fundamental rights. A failure to make a distinction in the way situations that are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention' (para. 67).
The combination of Articles 3 and 14 therefore provide a framework through which to robustly assess whether a state has taken sufficient measures to protect LGBT individuals from 'torture' or 'inhuman and degrading treatment' administered by those who are motivated by homophobic hatred.

The message of Identoba and Others v Georgia

Identoba and Others v Georgia sends a clear message to all of the 47 states contracted to the Convention about their obligation to adequately protect LGBT people from 'hate speech and serious threats', as well as 'physical abuse', that arouse in them 'fear, anxiety and insecurity' (para. 79).

In this respect, the judgment establishes that Article 3 requires states to ensure that there are both preventative and investigative legal measures in place to protect LGBT individuals who peacefully assemble in public. The Court has made clear that inadequate police protection from homophobic hatred will violate Articles 3 and 14. Similarly, a failure to adequately investigate allegations of hate crime will amount to a violation of the same Articles. In respect of the failure of the state to investigate allegations of ill-treatment based on homophobic hatred, the Court held that:
'it was essential for the relevant domestic authorities to conduct the investigation [...], taking all reasonable steps with the aim of unmasking the role of possible homophobic motives for the events in question. The necessity of conducting a meaningful inquiry into the discrimination behind the attack [...] was indispensable given, on the one hand, the hostility against the LGBT community and, on the other, in the light of the clearly homophobic hate speech uttered by the assailants during the incident. The Court considers that without such a strict approach from the lawenforcement authorities, prejudice-motivated crimes would unavoidably be treated on an equal footing with ordinary cases without such overtones, and the resultant indifference would be tantamount to official acquiescence to or even connivance with hate crimes' (para. 77). 
The Court's language is extremely clear and sends a strong and powerful message to all contracting states: when there are negative attitudes towards sexual minorities in society and there is a known likelihood of homophobic abuse, then law-enforcement authorities are under a 'compelling positive obligation' (para. 80) to protect LGBT individuals. Furthermore, states have a procedural obligation to investigate homophobic hatred 'with particular emphasis on unmasking the bias motive' (para. 80). As the Court said, if states do not take such action then 'it would be difficult [...] to implement measures aimed at improving the policing of [...] peaceful demonstrations in the future' (para. 80).

At its simplest, the Court's message is that states must have a robust framework of law enforcement that protects LGBT individuals from ill-treatment motivated by homophobia.

A significant milestone

Gay men and lesbians have been making complaints under Article 3 since 1955 about the inhuman and degrading treatment they have experienced because of their sexual orientation. This is only the second time that the Court has upheld a complaint relating to sexual orientation discrimination under Article 3 taken in conjunction with Article 14 (the first time was in 2012 in X v Turkey, which concerned the ill-treatment of a gay male prisoner). Recognizing that homophobic hatred amounts to inhuman and degrading treatment in violation of Article 3 is a significant milestone in the long human rights journey that gay men and lesbians have travelled.

Tuesday, 12 May 2015

Historic judgment in the European Court of Human Rights upholds Article 3 complaint about 'hatred' on the grounds of sexual orientation

A chamber of the Fourth Section of the European Court of Human Rights has today issued the judgment in Identoba and Others v Georgia. The judgment is a historic step forward for gay and lesbian rights. The Court has recognised, for the first time, that violent and abusive treatment of individuals assembling in public to peacefully demonstrate about issues relating to sexual orientation amounts to a violation of Article 3 of the European Convention on Human Rights. 


The complaint, brought by a non-govermental organisation and a group of individuals, concerned a peaceful march organised and attended by the applicants. During the march the individual applicants were threatened by counter-demonstrators – members of two religious groups – who outnumbered them. The counter-demonstrators shouted insults at the marchers – calling them, among other things, 'perverts' and 'sinners' – and blocked their passage and encircled them. Eventually the counter-demonstrators attacked several of the applicants physically, leaving at least three of them with injuries which had to be treated. 

According to the applicants, the police remained relatively passive in the face of the violence. Four of the applicants were arrested and briefly detained and/or driven around in a police car. 

After the demonstration, the NGO and 13 of the individual applicants filed several criminal complaints, requesting in particular that criminal investigations be launched into the attacks against them by the counter-demonstrators and into the acts and omissions of the police officers who had failed to protect them. Two investigations into the injuries sustained by two of the applicants were opened, which remain pending. Two of the counter-demonstrators, who had been arrested for a minor breach of public order, were given a fine of the equivalent of 45 euros (EUR) each.

The Article 3 taken in conjunction with Article 14 complaints

Article 3 of the Convention provides:

'No one shall be subjected to torture or to inhuman or degrading treatment or punishment.'

The Court considered the complaints of thirteen individual applicants (but not the NGO's complaint) under Article 3 taken in conjunction with Article 14 (prohibition of discrimination). The individuals complained under Articles 3 and 14 that the domestic authorities had failed to protect them from the violent attacks perpetrated by the counter-demonstrators during their peaceful march and to investigate effectively the incident by establishing, in particular, the discriminatory motive of the attackers.

The Court considered whether the attack on the applicants reached the minimum threshold of severity under Article 3 taken in conjunction with Article 14 of the Convention. In considering this, the Court said that it must bear in mind 'the various reports on the rights of lesbian, gay, bisexual and transgender (LGBT) people in Georgia' and acknowledge 'that the [LGBT] community finds itself in a precarious position' (§ 68). Against this social context the Court examined the clashes between the participants of the march and representatives of the two religious groups – Orthodox Parents’ Union and Saint King Vakhtang Gorgasali’s Brotherhood – and noted the that the religious groups were 'insulting in the language used, spitefully calling the [LGBT marchers] “fagots”, “perverts” and so on' (§ 69). In light of this, the Court stated that it considered
'that the question of whether or not some of the applicants sustained physical injuries of certain gravity becomes less relevant. All of the thirteen individual applicants became the target of hate speech and aggressive behaviour, which facts are not in dispute by the Government [...] Given that they were surrounded by an angry mob that outnumbered them and was uttering death threats and randomly resorting to physical assaults, demonstrating the reality of the threats, and that a clearly distinguishable homophobic bias played the role of an aggravating factor [...], the situation was already one of intense fear and anxiety. The aim of that verbal – and sporadically physical – abuse was evidently to frighten the applicants so that they would desist from their public expression of support for the LGBT community [...]. The applicants’ feelings of emotional distress must have been exacerbated by the fact that the police protection which had been promised to them in advance of the march was not provided in due time or adequately' (§ 70).
On this basis, the Court concluded that the treatment of the applicants 'must necessarily have aroused in them feelings of fear, anguish and insecurity' (§ 71) which were not compatible with respect for their human dignity and reached the threshold of severity within the meaning of Article 3 taken in conjunction with Article 14 of the Convention.

The Court examined whether the authorities provided due protection to the applicants and whether an effective investigation was conducted into the incident, deciding in both cases that they had not. In light of this, the Court held, by six votes to one, that there has been a violation of Article 3 taken in conjunction with Article 14 of the Convention with respect to the individual applicants.

Judge Wojtyczek (Poland) dissented citing, inter alia, the standard of evidence relating to the events and inconsistencies in the Court's application of Article 3. 

The Article 11 taken in conjunction with Article 14 complaints

The Court considered the applicants' complaints relating to freedom of expression (Article 10) and freedom of association (Article 11) together under Article 11 taken in conjunction with Article 14. 

The Court concluded
'that the domestic authorities failed to ensure that the march [...], which was organised by the first applicant and attended by the thirteen individual applicants [...], could take place peacefully by sufficiently containing homophobic and violent counter-demonstrators. In view of those omissions, the authorities fell short of their positive obligations under Article 11 taken in conjunction with Article 14 of the Convention' (§ 100).
The Court held unanimously that there was no need to examine the complaint under Article 10 of the Convention, and that there had been a violation of Article 11 taken in conjunction with Article 14 of the Convention.

Significance of the judgment

Identoba and Others v Georgia is significant because it continues to confirm the Court's approach to upholding complaints from applicants under Articles 11 and 14 of the Convention about interferences with the right to freedom of peaceful assembly and association. 

However, the most significant aspect of the judgment is that it brings public expressions of hatred against individuals on the grounds of sexual orientation into the scope of Article 3. This is a historic step forward in recognising that public acts of hatred against sexual minorities amounts to a form of 'inhuman or degrading treatment' that Article 3 prohibits.

Moreover, in bringing public attacks on the grounds of sexual orientation into the scope of Article 3, the Court has stated that treatment may be regarded as 'inhuman or degrading' even if it does not amount to physical violence. As the Court stated, the individual applicants were subject to 'violence, which consisted mostly of hate speech and serious threats, but also some sporadic physical abuse in illustration of the reality of the threats' and this 'rendered the fear, anxiety and insecurity experienced by all thirteen applicants severe enough to reach the relevant threshold under Article 3 read in conjunction with Article 14 of the Convention' (§ 79).

The message is now clear: domestic authorities that do not protect individuals from public attacks relating to sexual orientation, in the form of hate speech and physical violence, fail to fulfil their positive obligations under Article 3 of the Convention. 

This is only the second time that the Court has upheld a complaint relating to sexual orientation discrimination under Article 3 taken in conjunction with Article 14 (the first time was in 2012 in X v Turkey). Given that gay men and lesbians have been making complaints under Article 3 since 1955, in an attempt to show that sexual orientation discrimination amounts to inhuman and degrading treatment, today's judgment is a significant milestone. 

The Legal Implications of a Repeal of the Human Rights Act 1998 and Withdrawal from the European Convention on Human Rights

A policy paper, "The Legal Implications of a Repeal of the Human Rights Act 1998 and Withdrawal from the European Convention on Human Rights", was published today.

The policy paper, edited by Kanstantsin Dzehtsiarou and Tobias Lock, considers the implications of the Conservative Party's plans to repeal the UK Human Rights Act 1998 and to potentially withdraw the UK from the ECHR. 

I contributed to the policy paper which considers, among many other issues, how these changes to UK human rights law would impact on gay and lesbian rights. 

The policy paper can be downloaded here:

Friday, 8 May 2015

Is Article 12 of the European Convention on Human Rights applicable to same-sex couples?

I published an article recently in the European Law Review about the history of the ‘right to marry’ enshrined in Article 12 of the European Convention on Human Rights. 

In that article I made the claim that the European Court of Human Rights (ECtHR) has consistently held that Article 12, which provides that ‘[m]en and women of marriageable age have the right to marry and to found a family…’,  is applicable only to marriage between persons of the opposite sex. This claim has caused some interesting discussion among colleagues who take the different view that the ECtHR has established that Article 12 is applicable to same-sex couples. 

In light of this, I have written a guest post for the European Courts website on the applicability of Article 12 to same-sex couples. The post can be found here:


I am very grateful to Marc de Werd, Professor of European law (Maastricht University) and judge in the Amsterdam Court of Appeal, who edits the European Courts website.