Sunday, 27 September 2015

Workshop on 17 December 2015 to mark the 60th anniversary of the first complaint about sexual orientation under the ECHR

I am delighted to announce that the University of Sheffield will host a workshop to mark the 60th anniversary of the first complaint about sexual orientation discrimination ever made under the European Convention on Human Rights. 

The workshop will be held on Thursday 17th December 2015, sixty years to the day that the former European Commission of Human Rights declared that a complaint by a man imprisoned for "two cases of homosexuality" was inadmissible (I detailed the case last October). This was the very first case about sexual orientation discrimination brought under international human rights law. 

Damian Gonzalez-Salzberg (lawyer, lecturer in law, and expert in sexual orientation discrimination and the ECHR) has organised the workshop, which is kindly supported by the School of Law at the University of Sheffield. Also participating is Loveday Hodson (barrister at law, senior lecturer in law, and also expert in sexual orientation discrimination and the ECHR). 

The day will consist of short talks on aspects of the last sixty years of litigation relating to sexual orientation discrimination under the Convention and a seminar aimed at examining issues relevant to future litigation. To mark the day, Damian, Loveday and myself will launch an online publication consisting of the text of the talks that we will deliver. 

The event is free and we hope that as many people as possible will join us. There is a free lunch! We welcome anyone who has an interest in LGBT human rights. 

A flyer for the event can be found here and we would be very grateful to anyone who distributes it to publicise the event. 

Registration for the workshop is available here.

Friday, 25 September 2015

M.B. v Spain - recently communicated complaint concerning expulsion of an asylum seeker who had a same-sex relationship

The European Court of Human Rights has communicated the complaint in M.B. v Spain. The applicant is a Cameroonian national who was refused asylum in Spain. The applicant complains under Articles 2 and 3 of the Convention that her life and physical integrity will be at risk if she is ever removed to Cameroon. She raises a further complaint under Article 13 of the Convention relating to the effectiveness of domestic remedy.

One aspect of the applicant's complaint concerns a same-sex relationship she had in Cameroon. The relationship had started out as a "secret" but people had found out and informed the applicant’s family. The applicant’s oldest son told her that her family had found out that she was in a relationship with another woman and were threatening her to inform the police about her sexual orientation.

In Cameroon sexual relations with a person of the same sex are criminalized. Article 347 bis of the Penal Code criminalises "homosexuality", meaning sexual acts between persons of the same-sex, and allows for a punishment of up to five years in prison and a fine of 200,000 francs* (£224) - these penalties are doubled in respect of a person who has committed sexual acts with a person between sixteen and twenty-one years of age.

The Spanish authorities had dismissed the issue of the applicant's same-sex relationship on the grounds that "it was very unlikely that people in the village had found out about her homosexual relationship, as it was a secret one" and, in combination with a consideration of other issues, stated that the application for asylum lacked credibility. The General Deputy Director of Asylum concluded that it was not credible that the applicant had faced a situation of “social and familiar harassment” due to her sexual orientation and that there was no evidence that the Cameroonian public authorities were aware of the applicant’s sexual orientation.

* "Est puni d'un emprisonnement de six mois à cinq ans et d'une amende de 20.000 à 200.000 francs toute personne qui a des rapports sexuels avec une personne de son sexe".

Tuesday, 22 September 2015

Misrepresentation and misunderstanding of the European Court of Human Rights in the UK Parliament

As the UK Conservative government steps up its campaign to reform UK human rights law, which will potentially significantly change the UK's relationship with the European Court of Human Rights, there is bound to be an upsurge in political claims about the Court and what it does. My recent paper considers the ways in which UK politicians frequently misrepresent and misunderstand the Court and examines the consequences of this. 

Here is the abstract:

There is widespread and growing mistrust of the European Court of Human Rights (ECtHR) in the United Kingdom (UK). In response to what can be seen as the progressive ‘folk deviling’ of the ECtHR in the UK, the aim of this chapter is to explore how beliefs about the ECtHR are created and sustained. To achieve this aim, 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 this 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 paper can be found here:

Monday, 21 September 2015

The voting record of the new President of the European Court of Human Rights in respect of sexual orientation discrimination

Guido Raimondi, who has been a judge in the European Court of Human Rights since 2010, was today elected its President. 

Since 2010, President-elect Raimondi has sat in five major cases relating to sexual orientation discrimination. 

Here is how he voted:

In X v TurkeyJudge Raimondi joined a unanimous chamber in declaring that the mistreatment of a gay man in prison amounted to a violation of Article 3, and joined a majority (6-1) in declaring the mistreatment a violation of Article 14 taken in conjunction with Article 3 (which was the first time that the Court had ever recognised that discrimination on the grounds of sexual orientation amounted to a violation of Article 3). 

In X and Others v Austria, Judge Raimondi joined a unanimous Grand Chamber in declaring that the refusal to permit step-parent adoption for same-sex couples did not amount to a violation of Article 14 taken in conjunction with Article 8 when unmarried same-sex couples are compared to married different-sex couples (confirming that contracting states that do not permit same-sex couple to marry, and restrict step-parent adoption to different-sex married couples, are not in violation of the Convention) but joined a majority (10-7) in declaring that the refusal to permit step-parent adoption for same-sex couples did amount to a violation of Article 14 taken in conjunction with Article 8 when unmarried same-sex couples are compared to unmarried different-sex couples (thus declaring, for the first time, that rights to step-parent adoption that are available to unmarried different-sex couples must also be available to unmarried same-sex couples). 

In Vallianatos and Others v Greece, Judge Raimondi joined a majority in the Grand Chamber (16-1) in declaring that the exclusion of same-sex couples from civil unions, that were an alternative to marriage available only to different-sex couples, amounted to a violation of Article 14 taken in conjunction with Article 8. 

In Hämäläinen v Finland, Judge Raimondi joined a majority in the Grand Chamber (14-3) in declaring that the requirement that a transsexual end a different-sex marriage in order to gain full legal recognition of her acquired sex did not amount to a violation of any aspect of the Convention, including Article 12. 

In Oliari and Others v Italy, Judge Raimondi joined a unanimous chamber in declaring that the lack of legal recognition for same-sex relationships (other than marriage) in Italy (his own country) amounted to a violation of Article 8 of the Convention. 

Thursday, 17 September 2015

New article on heteronormativity and human rights law

Giulia Dondoli, of the University of Waikato, has made available a conference paper entitled "The Heteronormativity of the Human Rights Law: Causes and Consequences".

Here is the abstract:

The Universal Declaration of Human Rights (UDHR) and the subsequent human rights covenants and conventions are characterised by heteronormativity. Although many authors have discussed the consequences that heteronormativity has in the life of LGBTI (lesbian, gay, bisexual, transgender and intersex) individuals, the circumstances that led to the articulation of this heteronormativity are overlooked. This proposed paper aims to research the causes of this event through a study of the travaux préparatoir (preparatory documents) of the UDHR. In detail, the paper will look at the different drafts of Article 16 (right to marry and to found a family). Particular attention will be given to the nongovernmental advocacy of religious groups and women’s groups in the formulation of this article. Finally, the paper aims to demonstrate that heteronormativity is only a formal limit to the development of LGBTI rights. Indeed, heteronormativity masks the political intention of governments and international organisations not to allocate certain rights to LGBTI individuals. To do so, the paper will present several international and national examples.

The paper can be found here:

Article on Oliari and Others v Italy

Giuseppe Zago, a researcher in comparative sexual orientation law at Leiden University, has produced an interesting analysis of the recent judgment of the European Court of Human Rights in Oliari and Others v Italy.

Here are the details:

A victory for Italian same-sex couples, a victory for European homosexuals? A commentary on Oliari v Italy
In Oliari and others v. Italy the European Court of Human rights established for the first time that the legislator’s failure to guarantee a legal framework recognizing non-marital same-sex relationships constitutes a violation of the right to respect for private and family life under article 8 of the European Convention of Human Rights. This article aims to underline positives and negatives in judges’ reasoning. Particularly, it will be underlined the relevance of the judgment both as a critique on major contradictions characterizing Italian institutional debate around the issue of same-sex partnerships, and as a further step in the progressive application of article 8 ECHR to protect same-sex individuals committed in an intimate relationship. Such result is indeed achieved by referring expressly to the US Supreme Court judgment in Obergefell v. Hodges, which is uncommon for the Strasbourg Court and should not be overlooked for future cases. However, the article observes how the Chamber surprisingly failed ascertaining a possible violation of the right of private and family life in conjunction with the non-discrimination principle. This risks limiting the effects of its reasoning to the Italian situation only. Moreover, it is disappointing to notice that the European Court did not even examine Italy’s violation of the right to marry under art.12 of the Convention, and contrarily granted a wide margin of appreciation to the States. At present, same-sex marriage still remains “taboo” for the ECtHR.

The article can be found here:

Tuesday, 15 September 2015

Thursday, 10 September 2015

Communication to the Council of Europe about continuing restrictions on LGBT human rights in Moldova

In advance of the next quarterly meeting of the Committee of Ministers' Deputies, which examines the state of execution of the judgments of the European Court of Human Rights, two NGO(Genderdoc-M and ILGA-Europe) have submitted a communication regarding the case of Genderdoc-M v Moldova

In the submission, Genderdoc-M acknowledge the progress made by law enforcement authorities in respect of LGBT rights that have enabled pride parades to take place in 2014 and 2015. However, they express concern that: the authorities do not fully comply with their obligation to protect persons demonstrating for the rights of LGBTI people and to prosecute counter-demonstrators who act illegally; and that some members of the police force take actions which Genderdoc-M considers are intended to obstruct or otherwise limit the right of its members and supporters to exercise freedom of assembly. 

The communication provides a range of data to substantiate the expressed concerns and requests that the Committee of Ministers, contrary to the request of the Moldovan authorities, do not reclassify the case from "enhanced supervision" to "standard supervision".