Friday, 29 January 2016

The ill-treatment of a man by police at Bulgaria's first Gay Pride event in 2008 violates Article 3 of the Convention - judgment in Kostadinov v Bulgaria

The Fifth Section of the European Court of Human Rights has issued its judgment in Kostadinov v Bulgaria

The case concerned the treatment of the applicant, Boris Yordanov Kostadinov, who, during a Gay Pride event in Sofia in 2008, was intercepted by police who handcuffed him, forced him to lie on the ground, and kicked, punched and hit him with truncheons on the back, shoulders and legs. Mr Kostadinov was then taken to the police station where he was left in the corridor for a period of two hours and forced to face a wall with his hands up and legs apart. During this time he was also kicked in the ankles and hit with a truncheon in the back of his knees. Mr Kostadinov was then detained in a hot, crowded cell where he was not given any food or drink or allowed to go to the toilet. After his release, Mr Kostadinov complained but the domestic authorities found that the police had been justified in using force.

Relying in particular on Article 3 (prohibition of inhuman or degrading treatment), Mr Kostadinov argued that he had suffered ill-treatment at the hands of the police both on arrest and in detention and that his complaints had not been effectively investigated.

The Court unanimously found three violations of Article 3 of the Convention: two substantive violations relating to the force used in the course of Mr Kostadinov's arrest and the conditions of his detention and treatment in the police station; and one procedural violation in respect of the nature of the subsequent investigation of Mr Kostadinov's ill-treatment by the police. 

This is a significant judgment because it adds to the Court's (very recently established) Article 3 jurisprudence on sexual orientation (see previous comment on Identoba and Others v Georgia). Although Mr Kostadinov's complaint did not concern sexual orientation discrimination it does addresses an issue of fundamental importance, which is the role of public authorities in maintaining public order during 'gay pride' events. 

Tuesday, 12 January 2016

UK Parliament repeals final anti-gay law relating to the armed forces

The UK Parliament yesterday (11th January 2016) adopted an amendment to the current Armed Forces Bill that, upon enactment, will repeal two sections of the Criminal Justice and Public Order Act 1994 that make provision for a "homosexual act" to constitute grounds for discharging a member of Her Majesty's armed forces from the service. I wrote about the provisions here

The debate in Parliament, which can be watched here, or read here, was fascinating for a number of reasons. One of the most interesting aspects was the discussion of the history of the "witch hunt" against gay men and lesbians in the armed forces and whether the Government should examine and address this. 

The repeal of the 1994 legislation is relevant to the subject matter of this blog because it has been encouraged by Duncan Lustig-Prean - former Lieutenant Commander in the Royal Navy - who was one of the litigants in Lustig-Prean and Beckett v the United Kingdom. The judgment of the European Court of Human Rights in that case, as is well known, was instrumental in ending the "ban" on gay men and lesbians serving in the armed forces (a ban which was lifted exactly 16 years ago today).

During the course of my research for the Going to Strasbourg oral history project, I have been privileged to meet some of the people who, along with Duncan Lustig-Prean, challenged and ended the prohibition of homosexuality in the armed forces: Kevin Bazeley, Graeme Grady, Terry Perkins, and Emma Riley. They, like many, many others, were subject to the most distressing and humiliating treatment by the armed forces - truly deserving of the term "witch hunt" - and the tone of yesterday's debate in Parliament is a testimony to their courage to change our society for the better.

Saturday, 9 January 2016

Pshenkina v Sweden - complaint by prisoner about marriage discrimination deemed inadmissible

The European Court of Human Rights has declared the complaint in Pshenkina v Sweden inadmissible. The grounds for the Court's decision are that the applicant did not exhaust domestic remedies within the meaning of Article 35 of the European Convention on Human Rights.

The applicant is a Russian national currently serving a life sentence in Ystad, Sweden, for murder. While in prison, she initiated a relationship with another woman by correspondence and they decided to marry. Same-sex marriage is legal in Sweden and the applicant requested the prison authorities to grant her permission for a supervised visit from her partner so that they could marry. The prison rejected the application for a number of reasons, including that the applicant and her partner had not had a relationship before the applicant arrived at the prison and that the visit posed a security risk. Several appeals against this decision failed but, one year after the initial rejection, upon the submission of a new request, the applicant was granted permission for a supervised visit in order for her to marry her partner.

The applicant complained under Articles 8, 12 and 14 of the Convention that the decision not to permit her partner to visit her in prison in order for them to marry violated her right to private and family life and her right to marry, and that this was discriminatory since she is homosexual.

The complaint raises important and interesting questions, particularly in respect of Article 12. The settled jurisprudence of the Court is that the State cannot restrict or reduce the right to marry in such a way or to such an extent that the very essence of the right is impaired (Rees v the United Kingdom, 1986, § 50). Refusing the applicant a visit in order that she could marry would seem to impair the essence of the right to marry and, therefore, amount to a violation of Article 12 (in this respect, see: Frasik v Poland and Jaremowicz v. Poland). In respect of Article 14 and the alleged discrimination, the facts of the case as presented in the Court's decision do not readily show that the prison authorities refused the supervised visit because the applicant is homosexual. The authorities did consider that the relationship between the applicant and her partner was not of a "permanent or stable nature" but it is difficult to determine whether, in reaching this conclusion, they had been influenced by the applicant's sexual orientation.

In any case, the Court considered none of these issues because it held that the applicant had not sought to resolve her complaint through the domestic courts. The Court reiterated that "States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system" and that "the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights".

This does, of course, raise the perennial question of whether it is appropriate to apply these standards to a person serving a life sentence of imprisonment, who may not have the resources or capacity to access the domestic remedies available to free citizens.

Thursday, 7 January 2016

UK Parliament poised to repeal final remaining discriminatory legislation relating to homosexuality and the armed forces

Next Monday (11th January 2016), the UK Parliament will debate an amendment to the current Armed Forces Bill that has been tabled by Secretary of State for Defence, Michael Fallon. If the amendment is agreed and enacted it will repeal 24 words from statute law dealing with “homosexual acts” and the armed forces. Although it is nearly 16 years since the “ban” on gay men and lesbians serving in the armed forces was lifted – following judgments by the European Court of Human Rights in Lustig-Prean and Beckett v the United Kingdom and Smith and Grady v the United Kingdom in 1999 – Parliament has never repealed sections 146(4) and 147(3) of the Criminal Justice and Public Order Act 1994 which continue to make provision for a “homosexual act” constituting a ground for discharging a member of Her Majesty’s armed forces from the service.

Parliament’s consideration of these provisions in the 1994 Act is the result of written evidence that former Lieutenant Commander Duncan Lustig-Prean and I submitted to the Select Committee on the Armed Forces Bill in October 2015. In that submission, we set out our case for why these provisions should be repealed - which was, in essence, that they served no purpose and were discriminatory. In our view, Parliament had not simply forgotten or overlooked the 1994 provisions because they had been subject to a minor amendment by the Armed Forces Act 2006. Furthermore, they had been left untouched by the Law Commission who last reviewed the 1994 Act in 2015. Although the 1994 provisions were effectively made redundant by the change in Ministry of Defence policy relating to homosexuality and the armed forces in 2000, we argued that they could not be regarded – as is the case with any statute law currently in force – as entirely “dead letter”.

The provisions in the 1994 Act came into existence at the moment that homosexual acts ceased to be an offence under service law. They were enacted to ensure that although it would no longer be possible to prosecute personnel under the former Service Discipline Acts for engaging in a homosexual sexual act – which had previously been considered to constitute the offence of ‘disgraceful conduct’ of an ‘indecent or unnatural kind’ – the armed forces would still be able to administratively discharge (in effect, sack) gay men and lesbians. As Viscount Cranborne explained in the House of Lords, during Third Reading of the Criminal Justice and Public Order Bill, the aim was “to put on the face of the Bill a statement to the effect that the decriminalisation of homosexuality in the services … would not affect their ability to discharge homosexuals”. This reflected the dominant belief in Parliament at the time that, although it was acceptable to (albeit somewhat grudgingly) “decriminalize” homosexual sexual acts committed by service personnel, it was certainly not acceptable to continue to employ gay men and lesbians once they were “discovered”.

One of the most interesting features of the Parliamentary consideration of our proposal to repeal the provisions in the 1994 Act so far has been the unanimity among MPs and other stakeholders. When the Select Committee took oral evidence in November 2015, it put our case to a range of witnesses, which included General Sir Nick Carter (Chief of the General Staff), who all agreed that the repeal was appropriate and necessary. No member of the Select Committee dissented from that view and Kevan Jones MP – who was, until yesterday, Shadow Minister for Defence – moved an amendment to include a new clause in the current Armed Forces Bill to repeal the 1994 provisions. That amendment was deemed not to be acceptable because, since the 1994 provisions relate to the Merchant Navy as well as the Armed Forces, the Government’s view was that “it would appear unfair and inconsistent to amend the provisions in the 1994 Act only on behalf of the armed forces”.

We could see the Government’s point, but we continued to argue that the Armed Forces Bill was the most appropriate legislative vehicle for repealing discriminatory law relating to armed forces personnel. We were pleased, then, when Kevan Jones again moved his amendment when the Bill was considered in December 2015 in a Committee of the Whole House. MPs – including Martin John Docherty and Kirsten Oswald, both of the SNP – were supportive and there was again universal agreement about the need to repeal the provisions. However, the Government would still not accept the amendment because, as Mark Lancaster MP explained, although they were keen to see the legislation repealed, “[w]e would wish to repeal the legislation for both groups, but that is not possible in this Bill as the merchant navy falls under the auspices of the Department for Transport”.

It appears, from the contents of the amendment tabled by Michael Fallon, that the Government has changed its mind and now agrees that it is both appropriate and important to repeal the 1994 provisions immediately. If the House of Commons adopt the amendment at Report Stage of the Armed Forces Bill it will, upon enactment, remove the 1994 provisions relating to the armed forces and leave in place the provisions relating to the Merchant Navy (which can be repealed at the next legislative opportunity). Given that the amendment now has Government backing, it appears highly likely that it will be accepted. If it is, some might remember it as the “Kevan Jones amendment” and be grateful for the way he twice made a strong case for its inclusion.

The Parliamentary passage of this amendment to the 1994 Act tells us much about the degree of change that there has been in the armed forces, and in society more generally, in respect of issues relating to homosexuality. Next Monday, when Michael Fallon’s amendment is debated, will be the day before the 16th anniversary of the end of the “ban” on gay men and lesbians serving in the armed forces. During that time, the armed forces have gone from being homophobic institutions to being recognized as some of the most “gay friendly” workplaces in the UK. Parliamentarians, who used to fall over each other to decry the evils of homosexuals and homosexuality in the armed forces, appear united in the belief that this change has been positive and beneficial. The repeal of the provisions in the 1994 Act will have no immediate impact on serving personnel, but their passing will be a strong signal that the days of the State tolerating any discrimination on the grounds of sexual orientation in the armed forces are well and truly over. And this signal will be relevant to those around the world who continue to be criminalized and discharged from the armed forces for being gay.