Saturday, 18 February 2017

Charron and Merle-Montet v France - discrimination against same-sex couple in respect of "medically assisted procreation"

The European Court of Human Rights has communicated the complaint in Charron and Merle-Montet v France, which concerns a same-sex couple's inability to access "medically assisted procreation" that is available to opposite-sex couples.

The facts

Ms Charron and Ms Merle-Montet have been married since May 2014. Ms Charron has a "fertility problem". The couple wish to have a child and decided to turn to medically assisted procreation, with a view to achieving the insemination of Ms Merle-Montet. They asked the medical center for procreation of the University Hospital Center in Toulouse to provide the treatment. A doctor at the hospital replied that they could not receive treatment because the law currently in force in France regulating medically assisted procreation does not authorize the treatment of same-sex couples.

French law

The relevant law in France (Article L. 2141-2 of the Code de la santé publique) states that the purpose of medical assistance for procreation is to remedy the infertility of a couple and that the pathological character of infertility must have been medically diagnosed. 

The law states that medical assistance for procreation is intended for a "man and woman" who, forming a couple ("L’homme et la femme formant le couple..."), must be alive and be of childbearing age.

Complaint to the Court

Ms Charron and Ms Merle-Montet complain under Article 8 alone and in conjunction with Article 14 of the Convention that the rejection of their request for support for medically assisted procreation violates their right to respect for their private and family life and amounts to discrimination on the grounds of sexual orientation. 

In respect of their claim of discrimination, Ms Charron and Ms Merle-Montet compare their situation to that of an opposite-sex couple in which man is infertile.

Questions to the parties

The Court has asked the parties the following questions:

1. Did the applicants exhaust domestic remedies in respect of their complaints? 

2. If so,

(A) What are the conditions under French law regarding access to medically assisted procreation? Could same-sex couples gain access to assistance in private clinics?

(B) Does the refusal to assist Ms Charron and Ms Merle-Montet infringe the right to respect for private and family life of the couple or, indeed, the one who wishes to be inseminated? If the refusal interferes with this aspect of Article 8, can it be justified? 

(C) Does the refusal to assist Ms Charron and Ms Merle-Montet amount to discrimination based on their sexual orientation?

Thursday, 9 February 2017

European Court of Human Rights upholds complaints against Russia by gay activists

On 7 February 2017 the European Court of Human Rights issued its judgment in Lashmankin and Others v Russia. The case was brought by 23 applicants from different parts of Russia who alleged that local authorities had imposed severe restrictions on peaceful assemblies planned by them, without any proper justification.

Five of the applicants are gay rights activists and their complaints related to refusals to allow them to hold the following events: two different pickets to protest about electoral violations and discrimination against certain groups; and two gay pride events in 2010 and 2011. In respect of the latter event, the applicants, despite obstruction by public authorities, participated in a gay pride event and were arrested and charged with the administrative offence of breaching the established procedure for the conduct of public events.

In considering the applicants' complaint that "the domestic law conferred an unduly wide discretion on the executive authorities to propose a change of the location, time or manner of conduct of public events which was not restricted by the requirements of proportionality or necessity in a democratic society or by effective judicial control" (§ 416), the Court noted the "clear risk of arbitrariness in the grant of such broad and uncircumscribed discretion to the executive authorities" (§ 429). The Court stated:
Indeed, the present case shows that the above powers are often used in an arbitrary and discriminatory way. It provides ample examples of situations where opposition groups, human rights defenders or gay rights activists were not allowed to assemble at a central location and were required to go to the outskirts of town on the ground that they might hinder traffic, interfere with the everyday life of citizens, or present a security risk, and were dispersed and arrested if they refused to comply, while pro‑government public events were allowed to take place at the same location, traffic, everyday-life disturbances and security risks notwithstanding. The most telling example is the case of gay rights activists who proposed ten different locations in the town centre, all of which were rejected by the town authorities on various grounds, while an anti-gay public event was approved to take place at one of those same locations on the same day ... (§ 429).
The Court concluded that the treatment of these applicants amounted to a violation of Articles 11 and 13 of the Convention.

Tuesday, 7 February 2017

New article on same-sex marriage

Malcolm Langford, from the University of Oslo, has made available a paper called "Revisiting Joslin v. New Zealand: Same-Sex Marriage in Polarised Times". Readers of this Blog may be interested in the paper because of its consideration of Article 12 of the Convention in relation to same-sex marriage.

Here is the abstract:

In Joslin v. New Zealand (2002), the UN Human Rights Committee rejected the claim that marriage equality could be grounded in the International Covenant on Civil and Political Rights (ICCPR). Some scholars have argued that emerging state practice and a proper understanding of the drafting of the convention now justify the argument for marriage equality. Instead, this paper argues that a project of human rights integration reveals, paradoxically, additional legal challenges. Taking a departure point in relevant regional and national judgments, the chapter sets out a three-tiered cumulative argument for a right to same-sex marriage in Article 23(2) of the ICCPR. The crux of the argument is that the Committee will be able to recognise marriage equality when the ordinary meaning of ‘marriage’ becomes ambiguous as to the gender identity of spouses.

The paper can be found here:

Wednesday, 1 February 2017

Who will be pardoned under "Turing Law" in the UK?

On 31 January 2017, the UK Parliament passed the Policing and Crime Act 2017 and, in doing so, enacted a range of significant provisions relevant to people previously convicted of or cautioned for certain "homosexual" sexual offences. 
The 2017 Act enables those persons, both living and dead, who were convicted of or cautioned for certain repealed offences to be pardoned. 
There has been widespread media coverage of, what many people are calling, the "Turing Law". However, much of the coverage suggests that there is confusion about who will receive a pardon, how they will obtain one, and when it will be given. 
My aim in this post is to address these questions by way of providing an overview of the legislation.
What is a "pardon"? What is a "disregard"?
The first thing to note is that there are now two "schemes" in operation which address convictions and cautions relating to certain repealed sexual offences. 
First, there is the "disregard scheme", which allows a person convicted of or cautioned for one or more certain offences to apply to have a conviction or caution disregarded. The most significant effect of a successful application is that any details of a conviction or caution are deleted in official records. Furthermore, the person who has had a conviction or caution disregarded is treated for all purposes in law as if they had not committed the offence. 
Second, a person who has been convicted of or cautioned for one or more certain offences may be "pardoned". In this context, a pardon does not affect a conviction, caution or sentence. Furthermore, a pardon does not give rise to any right, entitlement or liability. The general effect of a pardon is to remove from the subject of the pardon all the pains, penalties and punishments ensuing from a conviction.
England, Wales and Northern Ireland only
The "schemes" described above do not extend to Scotland. Rather, they relate to convictions or cautions in England and Wales, and Northern Ireland. This does not mean, however, that people living in Scotland cannot benefit, if they were convicted or cautioned in another part of the United Kingdom. But offences originally dealt with under Scottish law are not currently covered and those people will need to wait for the Scottish Parliament to make separate legislative provisions relating to pardons and disregards. 
Which offences are covered by the pardon and disregard schemes?
The following offences are covered:
"buggery", which was an offence in England and Wales between 1533 and 2003, and in Northern Ireland between 1634 and 2008; 
"gross indecency between men", which was an offence in England, Wales and Northern Ireland between 1885 and 2003; 
either of the above two offences dealt with under Service (military) law going back to 1917 in respect of the Royal Air Force, 1881 in respect of the Army, and 1661 in respect of the Royal Navy; and 
"procuring others to commit homosexual acts", in respect of Northern Ireland, which was an offence between 1982 and 2003.
An important, but often overlooked, fact is that the offence of "buggery" did not relate only to sexual acts committed between men. The offence also regulated sexual acts between men and women and, as such, those convicted of or cautioned for a "heterosexual" act of buggery may be eligible for a pardon or disregard.

A further important fact is that these offences, for the purposes of pardons and disregards, include an attempt, conspiracy or incitement to commit an offence, and aiding, abetting, counselling or procuring the commission of an offence. Moreover, an attempt to commit an offence includes conduct dealt with under vagrancy legislation. 

Who is eligible for a pardon or disregard? 

To be eligible for a pardon or a disregard, a person who has been convicted of or cautioned for one of the offences mentioned above (except procuring others to commit homosexual acts) must meet the following conditions:
first, the other person involved in the conduct constituting the offence must have consented to it; 
second, the other person involved in the conduct constituting the offence must have been aged 16 or over in respect of an offence in England and Wales, or aged 17 or over in respect of an offence in Northern Ireland; and 
third, the conduct constituting the offence, if it took place today, must not constitute the offence of "sexual activity in a public lavatory".
Slightly different conditions apply in respect of the offence of procuring others to commit homosexual acts insofar as the issue of consent is concerned. 
Which deceased persons will be pardoned?
Those persons convicted of or cautioned for an offence mentioned above will be pardoned if they have died before the legislation comes into force (see below) and if they meet the conditions mentioned above.
To be pardoned, therefore, no "application" needs to be made on behalf of a deceased person, such as by a relative or friend. Rather, the deceased person is deemed to be pardoned for an offence.
This arrangement may leave relatives or friends of a deceased person who was convicted or cautioned wondering whether the deceased person has been pardoned. The government has not offered any assistance to determine whether, in each case, a person has been pardoned. For example, no list of names of those pardoned will be issued. As matters stand, therefore, each deceased person's case will need to be considered by any interested party - relatives, friends or others - to determine whether a deceased person meets the conditions outlined above and, consequently, is pardoned. 
Which living persons will be pardoned?
For a person who is living to be pardoned they must first apply to have a conviction or caution, for one of the offences mentioned above, disregarded. 
In England and Wales, the process for making such an application has been in place since 2012. Any person who wishes to apply for a conviction or caution to be disregarded can do so by completing and submitting a form available here. In Northern Ireland, the process will be introduced by the Department of Justice in due course.
For an application to be successful, the person who has been convicted or cautioned must meet the conditions outlined above. 
If an application to have a conviction or caution disregarded is successful, the person is also pardoned. A person who has previously made a successful application to have a conviction or caution disregarded in England and Wales, is now pardoned. 
Therefore, no person who is living can be pardoned without first successfully applying to have a conviction or caution disregarded. 
Are other offences covered by the disregard or pardon schemes?
As explained above, only people convicted of or cautioned for certain repealed offences are eligible to be pardoned or have a conviction or caution disregarded. 
However, it is recognized that many men were convicted for other offences, such as "importuning", in respect of same-sex conduct that is now lawful. 
Therefore, Parliament has made provisions for further offences to be included in the disregard and pardon schemes in the future, both in England and Wales and in Northern Ireland. 
When such provisions are used, an offence can only be added to the disregard and pardon schemes if the offence has been repealed or abolished, and either the offence expressly regulated homosexual activity or was used to target homosexual activity. 
When will people be pardoned? 
Those people who are deceased, who were convicted of or cautioned for an offence mentioned above in England and Wales and meet the conditions described above, were pardoned on the day that the legislation came into force - that is, at midnight on Tuesday 31 January 2017. 
Those people who are deceased, who were convicted of or cautioned for an offence mentioned above in Northern Ireland and meet the conditions described above, will be pardoned on a day, in the future, to be determined by the Department of Justice. 
In respect of pardons for persons who are living, to obtain a pardon those persons must first successfully apply, as described above, to have a conviction or caution disregarded. As also explained above, an application can now be made in England and Wales, and in Northern Ireland in the future.

Monday, 30 January 2017

H.A. and H.A. v Norway - inadmissible

The European Court of Human Rights has declared the complaint in H.A. and H.A. v Norway inadmissible. 

The facts

The applicants are two brothers of Iranian nationality, born in Dubai, the United Arab Emirates. The first applicant was born in 1992, and the second in 1995. They are currently living in Norway.

The applicants entered Norway via Russia on 30 October 2015 together with their mother and three minor brothers, and applied for asylum on the same day. In support of their applications they submitted they feared being considered as apostates upon travelling to Iran. 

The Directorate of Immigration rejected their applications for asylum, finding that there was no risk of persecution in Iran. Even though the applicants were of Buddhist faith, there was nothing in the way that they manifested their faith that would attract any sort of negative attention from the Iranian authorities. 

Both applicants appealed against this decision, on grounds that they would be persecuted in respect of their Buddhist beliefs. 

The first applicant also argued that his father had alleged that he was homosexual and that he, his siblings and their mother had harmed the family honour by escaping from their father, and that this would put them at risk.

On the merits, the Immigration Appeals Board agreed with the decisions adopted by the Directorate of Immigration. As to the first applicant, the Board held that it was unlikely that the Iranian branch of his family would report him to the religious police or that he would risk persecution due to his father’s allegations that he was homosexual.

Complaint to the Court

The applicants complained that their removal to Iran would be contrary to Articles 2, 3 and 8 of the Convention. Moreover they submitted under Article 3, in conjunction with Article 13, that the domestic authorities had failed to engage in a rigorous scrutiny of all the facts on which their decisions were based.

Articles 2 and 3 (in respect of the issue relating to homosexuality)

The Court stated "as to the ... reasons relied on by the applicants in support of their request for asylum, namely ... the allegation of homosexuality ... the Court sees no grounds to deviate from the conclusions drawn by the domestic authorities".

The Court declared this and the other aspects of the application inadmissible.

Sunday, 22 January 2017

M.B. v Spain - complaint by lesbian asylum seeker declared inadmissible

The European Court of Human Rights has published its decision in M.B. v Spain in which it has declared part of the complaint inadmissible and struck out the remainder. The complaint, which I wrote about here when it was communicated in August 2015, concerns the deportation of a lesbian woman, now aged 40, to Cameroon. 

The facts

The facts of the case, so far as they relate to sexual orientation discrimination, can be summarised as follows:

In 2013, the applicant, Ms M.B., fell in love with a woman whilst living in Douala and they started a secret relationship. However, people found out and informed Ms M.B.'s family about the existence of the relationship. Ms M.B.'s oldest son telephoned her and told her that her family had found out that she was in a relationship with another woman and were threatening to inform the police about her sexual orientation. 

In Cameroon sexual relations with a person of the same sex are criminalized. Article 347-1 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.

In light of the threats against her, Ms M.B. had to leave her apartment and moved to another neighbourhood. A week later, her brother telephoned her and urged her to leave immediately. Ms M.B. decided to leave the country with the help of a trafficker. On 7 March 2015, she landed in Madrid Airport, where she was arrested by the border authorities.

The domestic proceedings

On 8 March 2015, Ms M.B. applied for asylum in Spain. Her request was rejected on 11 March 2015. On 11 March 2015, the Spanish Delegation of the United Nations High Commissioner (UNHCR) issued a report in support of Ms M.B.'s request seeking international protection “due to the seriousness of the applicant’s allegations and the current situation of the LGBT groups in Cameroon”. 

On 13 March 2015, Ms M.B. brought an appeal against the asylum decision, which was rejected on 16 March 2015. 

Ms M.B. then initiated judicial proceedings before the Audiencia Nacional against the asylum decision. On 18 March 2015, the Audiencia Nacional granted Ms M.B.'s request to stay her deportation. However, on 26 March 2015, the Audiencia Nacional lifted this measure, and Ms M.B. was to be deported on 28 March 2015, while an appeal on the merits before the Audiencia Nacional was still pending. 

On 27 March 2015, Ms. M.B. lodged a request with the Court under Rule 39 of the Rules of Court asking for the stay of her removal to Cameroon. On the same date, the Court granted her request and indicated to the Spanish Government that it should stay Ms M.B.'s removal to Cameroon for the duration of the proceedings before the domestic courts.

Further domestic proceedings following Ms M.B.'s application to the Court

After Ms M.B. had applied to the Court, and it had ordered the Spanish government not to deport her to Cameroon whilst her appeal was being considered by the domestic authorities, the Audience Nacional issued its judgment in respect of her appeal. The judgment upheld her appeal with the effect that her application for asylum by the administrative authorities will be reconsidered. 

In accordance with Spanish law, once asylum protection has been requested, an alien may not be expelled until the application is decided (Law 12/2009 of 30 October 2009 on the right of asylum and subsidiary protection). 

Decision of the Court

Ms M.B. complained under Articles 2 and 3 of the Convention that her life and physical integrity would be at risk if she was removed to Cameroon. She further complained under Article 13 taken in conjunction with Articles 2 and 3 of the Convention that the administrative and judicial proceedings concerning her asylum application did not meet the requirements of an effective remedy.

In respect of both complaints, the Court reached a similar conclusion. 

In respect of the Article 13 complaint, the Court stated that, within the terms of Article 37(1)(b) of the Convention ("The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that...the matter has been resolved"), there was no justification for continuing with the application because Ms M.B. could no longer be deported, given that her application for asylum was being re-examined by the domestic authorities. The Court therefore struck out this part of the application. 

In respect of the Article 2 and 3 complaints, the Court stated that Ms M.B.'s application was "premature" within the meaning of Article 35(1) of the Convention ("The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken") because a decision on her asylum application was still pending before the domestic authorities. The Court therefore declared this part of Ms M.B.'s application inadmissible on the basis that she had not exhausted domestic remedies. 

A reasonable decision?

Although the Court's decision may appear reasonable, given that Ms M.B.'s application for asylum is continuing to be examined by the Spanish authorities, it should be considered in the context of the facts of the case and, importantly, the broader jurisprudence of the Court. 

In respect of the facts of the case, it should be noted that the only reason that Ms M.B. was not deported to Cameroon was because she applied to the Court and it ordered a stay of her removal. It was the Interim Measures of the Court that meant that Ms M.B. remained in Spain whilst her appeal was being considered - an appeal that was ultimately successful. Were it not for this, it seems that Ms M.B. would have been deported and, as a consequence, her successful appeal may have been of no benefit to her since, as she claimed, she may have been killed as a consequence of her return to Cameroon. 

In light of this, one could conclude that the Court's decision is reasonable, given that Ms M.B.'s asylum application is now being reconsidered and she will not be deported during this period. 

On the other hand, one could claim that it may have been judicious for the Court to wait for the domestic authorities to conclude their examination of Ms M.B.'s asylum application before reaching its decision. The Court has previously held that Article 35 (exhaustion of domestic remedies) should be applied with "some degree of flexibility and without excessive formalism" (Selmouni v France, [GC] § 77) and Ms M.B.'s case would appear to be one in which such a flexible approach would have been desirable. It would seem reasonable to suggest that, at the point that Ms M.B. was facing deportation and applied to the Court to prevent this happening, that her attempt to use domestic remedies was, for all practical and effective purposes, exhausted. Therefore, at the point that she introduced her complaint to the Court, she was in compliance with Article 35. On this basis, the Court could have waited until the domestic authorities had concluded their consideration of her asylum application before reaching its decision. This would seem sensible because, if the domestic authorities again refuse the asylum application, Ms M.B. would not have to commence a new application to the Court. 

The decision in this case has to be considered in respect of the broader jurisprudence of the Court. Specifically, it has to be seen in the light of the fact that the Court has never held that the deportation of a gay person to a country of origin, outside the Council of Europe, that criminalises same-sex sexual activity amounts to a violation of any aspect of the Convention. The Convention has been in force for nearly 64 years and the Court has contributed little (if anything) to elucidating, safeguarding and developing the human rights of people who, should they be returned by Council of Europe states to the countries they flee, are at risk of inhuman and degrading treatment and punishment, torture, and death. This, as I have argued before here, amounts to a shameful history. 

It is difficult not to reach the conclusion that the decision taken in Ms M.B.'s case is just another example of the Court trying desperately to avoid ruling on the merits of a "gay asylum" case. Of course, the Court is going to have to rule on the merits of some such case one day. But, for now, it seems determined to declare any application of this kind, by any means it can, inadmissible. 

Saturday, 31 December 2016

2016 - a year in review

Here is my annual round-up of cases concerning sexual orientation discrimination that were considered by the European Court of Human Rights in 2016.

This was a significant year, in many ways, which saw the Court issue some important judgments that enhance its existing LGBT jurisprudence. However, it was also a year in which the Court issued judgments that continue its established refusal to extend to same-sex couples the human right to marry...

In January, the Court declared the complaint in Pshenkina v Sweden, which concerned the refusal to permit the same-sex partner of a prisoner to visit in order to marry, inadmissible on the grounds that the applicant had not exhausted domestic remedies. The Court also issued its judgment in Kostadinov v Bulgariaupholding a complaint about the role of police in maintaining public order during a "gay pride" event. 

In February, the Court issued its judgment in Pajić v Croatia, upholding a complaint about sexual orientation discrimination in immigration law. 

In April, the Court held in Sousa Goucha v Portugal that a homophobic joke did not violate the Convention. It also held in M.C. and A.C. v Romania that the failure of police to take into account discriminatory motives when investigating a homophobic attack amounted to a violation of Article 3 (procedural limb) taken in conjunction with Article 14 of the Convention.

In May, the Court, in A.N. v France, once again rejected an application by a gay asylum seeker, thus continuing its established approach in respect of complaints by gay men and lesbians about Council of Europe States that seek to return them to States outside of Europe that criminalise homosexual acts. 

In June, the Court, in Chapin and Charpentier v France, restated its established opinion that denying a same-sex couple access to marriage does not violate the Convention. The Court also held, in Aldeguer Tomás v Spainthat a surviving same-sex partner who was denied access to survivor’s pension was not discriminated against. But, at the end of the month, in Taddeucci and McCall v Italy, the Court held that Italy had violated the Convention by refusing a residence permit to a same-sex partner. 

In July, in O.M. v Hungary, the Court held that the conditions of detention to which a gay asylum seeker was subjected amounted to a violation of the Convention.

And in November, the court held, in Kaos GL v Turkey, that the seizure of copies of a magazine promoting LGBT rights in Turkey breached Article 10 of the Convention.

"Judges of the Year"

Apologies for this tabloid turn, but I want to pay tribute to Judges Spano and Bianku who this year, in their concurring opinion in Taddeucci and McCall v Italy, made some striking statements about same-sex couples, marriage and family life. 

Specifically, Judges Spano and Bianku spoke of the Court being a "sanctuary" for same-sex couples when they are denied access by States to the family life rights available to opposite-sex couples. Such a plain statement from judges in the Court is heartening, encouraging and most welcome. 

Blog stats

In the time since I began this blog in February 2013, the stats page has recorded a total of 132,711 page views. The worldwide readership of the blog, from Aruba to United Arab Emirates, has improved my worldwide geography no end. Here is a list of the top ten countries by page views of all time: 

Thanks and Happy New Year

I want to thank everyone who has read this blog over the year for their interest. Many thanks to those of you who have written to me personally. Special thanks to Dr. Loveday Hodson for her excellent Guest Post on Pajić v Croatia.

I wish you all a very happy, a very peaceful, and a very prosperous 2017.