Tuesday, 11 October 2016

New book provides judicial perspectives on the impact of the ECHR in Central and Eastern Europe

I have recently been reading a fascinating new book, The Impact of the ECHR on Democratic Change in Central and Eastern Europe: Judicial Perspectives, which is edited by Iulia Motoc (judge for Romania at the ECtHR) and Ineta Ziemele (former judge for Latvia at the ECtHR). The book is, in essence, a survey of the influence of the ECHR in the ‘post-communist’ States that joined the Council of Europe from 1990 onwards. The editors have orchestrated an authoritative guide to the multi-faceted relationship between these States, the ECHR, and the ECtHR that has developed over the last 25 years. Because current or former judges of the ECtHR, or senior national judges or academics, have written many of the chapters in the book, the insights made and the arguments advanced are particularly commanding. I thought I would write a brief review of the book because I think it is a particularly useful resource for examining issues relating to sexual orientation discrimination across a large number of States contracted to the ECHR.

In her Introduction, Iulia Motoc explains that the book ‘offers an insight into some aspects of a long and complex process of change from totalitarian regimes to democracy through the implementation of the ECHR obligations’ (page 5); a process, she notes, which ‘is not completed’ (ibid). It is the incompletion of the process of democratization in Europe that perhaps makes this book so important because it provides a ‘snapshot’ of the state of human rights law in a number of Central and Eastern European States and, in doing so, shows the range of issues and problems that remain therein. After a very useful overview chapter by Luzius Wildhaber (former Swiss judge and President of the ECtHR) – the most interesting aspect of which is the description of various ‘problems’ that followed the accession of some of the Central and Eastern European States to the ECHR, including the attempt, allegedly in the name of the President of one State, to blackmail the ECtHR – the book is then divided into 19 State-specific chapters that each offer a window onto the observation and implementation of the ECHR within domestic legal cultures and practices.

The primary aim of the book is to give an overview of the relationship between the law in a number of Central and Eastern European States and the ECHR and, specifically, to discuss the status of the ECHR in the legal order of each State. This is extremely useful because the status of the ECHR across Contracting States is far from uniform and it is therefore fascinating to see how each State has dealt with incorporating the ECHR into their legal regime. Not all Central and Eastern European States are covered – for example, Bulgaria and Georgia are absent – but the book can certainly be described as comprehensive given that it includes separate chapters on States that signed the Convention in 1990 (Hungary), 1991 (Czech Republic, Poland, Slovakia), 1993 (Estonia, Lithuania, Romania, Slovenia), 1995 (Albania, Latvia, Macedonia, Ukraine), 1996 (Croatia, Russia), 2001 (Armenia, Azerbaijan), 2002 (Bosnia and Herzegovina) and 2003 (Montenegro, Serbia). Such a macro-view across these States of the Council of Europe is very welcome because it allows a comparative insight into domestic practices that would not otherwise be readily accessible.

One of the ways in which the story of the impact of the accession to the ECHR by the Central and Eastern European States is told is through a narrative about how the ECHR system has itself changed. Writing about the pre-1990s ECHR system, Dean Spielmann, former President of the ECtHR, argues that ‘[n]ot many truly grave, gross or flagrant violations of human rights came to Strasbourg during that time’ and, quoting Wojciech Sadurski, that the ECtHR was largely concerned with establishing ‘standards which were admittedly exciting for academic lawyers, but rarely going so far as to reverse really important policy and legal choices adopted within national systems’ (page xxvi). Spielmann argues ‘[t]his was to change radically after the 1990s’ (ibid) with the accession of the Central and Eastern European States. There is no question that Spielmann is, in part, correct, because the substantive nature of the complaints brought to the ECtHR by those in Central and Eastern European States has often concerned ‘traumatic situations’ (page xxvii) not found in Western Europe. However, approached from the point of view of sexual orientation discrimination, the reverse could be said to be true: ‘truly grave, gross or flagrant violations of human rights’ relating to sexual orientation discrimination did consistently come to Strasbourg in the pre-1990s period and, moreover, the way Strasbourg dealt with them subsequently impacted on the Central and Eastern European States once they joined the ECHR system. For example, when the ECtHR issued its judgment in Dudgeon v the United Kingdom in 1981, in which it held that the criminalization of consensual sexual acts committed between two adult males in private amounted to a violation of the right to respect for private life – a conclusion reached after 26 years of the former European Commission of Human Rights repeatedly rejecting complaints about the criminalization of homosexual acts in States such as Austria, (West) Germany, and the United Kingdom – it set a human rights standard that any Central and Eastern European State wishing to join the ECHR system was required to observe.

As I said above, I read each chapter of the book with a particular interest in the discussion of issues relating to sexual orientation discrimination. I won’t review every chapter – not all deal with sexual orientation discrimination issues in any case, although all are worth reading – but will focus on three chapters concerning Poland, Romania and Serbia.

The chapter on Poland, written by Lech Garlicki and Ireneusz Kondak, is particularly interesting for its discussion of Bączkowski and Others v Poland in which the ECtHR held that, inter alia, the refusal of Polish authorities to grant permission for a public march and meetings to protest against homophobia amounted to a violation of the right to freedom of peaceful assembly. The domestic authorities had refused permission for the public assembly because the organizers had not submitted a ‘traffic organization plan’. An appeals tribunal subsequently quashed this decision and, moreover, the Constitutional Court deemed the law on which it was based to be incompatible with the right to freedom of assembly guaranteed by the Polish Constitution. Therefore, Garlicki and Kondak argue that it is important to recognise that, whilst Bączkowski and Others represents ‘the most prominent input of the Strasbourg Court’ into Poland’s process of democratization, the ECtHR’s judgment was adopted after the rulings of the domestic courts and, as such, confirmed their positions (page 327). There are other examples where this has been the case and the authors cite them in support of their argument that the Polish transformation in the area of democratization ‘appears to be quite successful’ and has benefited largely from the ‘indirect’ influence of the ECtHR (ibid).

In their chapter on Romania, Iulia Motoc and Crina Kaufman discuss the ‘first authentic reference by the Constitutional Court to the case law of the ECtHR’ (page 341). This was in a decision issued in 1994 which concerned whether Article 200(1) of the Criminal Code, which criminalized sexual acts committed between persons of the same sex, was compatible with the Constitution. Drawing upon ECtHR case law relating to the criminalization of male homosexual acts – namely Dudgeon v the United Kingdom, Norris v Ireland, and Modinos v Cyprusthe Constitutional Court held that Article 200(1) did not comply with provisions in the Constitution ‘insofar as it applies to sexual relations between adults of the same-sex, freely consented, not committed publicly or that do not cause public scandal’ (ibid). This marked, the authors argue, the opening of an important ‘dialogue’ between the highest domestic judicial authority and the ECtHR – a dialogue which they feel remains, in part, problematic – that has enabled judges in the Constitutional Court to utilize ECtHR case law to resolve conflicts and tensions in respect of human rights at the domestic level. This was extremely important in respect of the criminalization of same-sex sexual acts because ECtHR jurisprudence allowed the Constitutional Court to reach a decision that resulted in homophobic, Communist-era law being amended to bring about the partial decriminalization of consensual sexual acts between adults.

The chapter on Serbia, written by Dragoljub Popović and Tanasije Marinković, explores the reasoning of the Constitutional Court of Serbia in its decision to ban the far-right political organization Obraz. The organization had made a number of statements about those it considered to be ‘Serbian enemies’ which included ‘homosexuals’ who, it said, ‘will be prevented’ if they ‘have no shame’ and decide to assemble in public. The Constitutional Court, in deciding that there was a pressing social need to suppress Obraz and that the recent historical context made it proportionate to do so, based its ruling entirely on ECtHR case law. Specifically, the Constitutional Court drew upon Vejdeland and Others v Sweden in which the ECtHR held that the criminal conviction of individuals who had circulated homophobic leaflets at a school did not amount to a violation of their right to freedom of expression. This is one example of how, as the authors argue, there ‘is a visible impact of the Convention case law on the democratization and rule of law in Serbia’ (page 388). The authors also state that it ‘remains doubtful’ whether this impact has ‘reached a satisfactory level’ (ibid).

There are other chapters in the book that deal with issues relating to sexual orientation discrimination. One absence, however, that I found disappointing was in the chapter on Russia written by Anatoly Kovler. I had expected to find a discussion of Alekseyev v Russia, not least because the ECtHR’s judgment – that the repeated refusal of domestic authorities to permit ‘gay pride’ marches in Moscow amounted to a violation of, inter alia, Article 11 of the ECHR – has not been executed by the domestic authorities and the suppression of LGBT speech in the Russian Federation remains ongoing. Kovler was one of the judges sitting in the First Section of the ECtHR that decided Alekseyev so his views on the manner in which the Russian authorities continually obfuscate on the issues raised in the judgment when the Committee of Ministers of the Council of Europe questions them would have been very insightful. He does note, however, that legislative efforts to impose ‘harsher punishment […] for “propaganda” of unconventional sexual orientation’ will likely create a surge in complaints to the ECtHR that, in turn, ‘will justify talking about new “systemic” problems’ (page 371).

Overall, I think this is a fascinating book, and one that will be widely read by legal practitioners and scholars across Europe and beyond. It will be particularly useful for students trying to come to terms with the many ways in which the ECHR influences and shapes widely different legal cultures and practices. The high price of the book (£99.99) – a perennial issue in academic publishing – will limit its audience and it is to be hoped, therefore, that Cambridge University Press will hasten the issue of a paperback edition. Priced more reasonably, I think this book will appeal to a wide audience because it addresses a subject of considerable public interest: the ongoing transformation of Europe, from a continent that once comprised a mass of totalitarian regimes often ruled by brutal dictators to a continent made up of democratic and pluralistic societies at different stages of legal evolution. The book shows the importance of the Council of Europe, and the ECtHR, in facilitating this transformation and supporting States in meeting their obligation to respect human rights and fundamental freedoms.

Saturday, 24 September 2016

"Going to Strasbourg" - 30% discount

Oxford University Press are offering a 30% discount on my new book, Going to Strasbourg: An Oral History of Sexual Orientation Discrimination and the European Convention on Human Rights, which reduces the price from £50 to £35. 

The book can be ordered here and purchasers will need to quote the promotional code ALAUTHC4 (which is valid until 31st March 2017) to obtain the discount. 

Sunday, 18 September 2016

E.S. v Spain - communicated case concerning deportation of gay Senegalese national

The European Court of Human Rights has communicated the case of E.S. v Spain. The case concerns the deportation of a gay Senegalese national from Spain to his country of origin and raises the question of whether, in light of his sexual orientation, this would would expose him to a real risk of being subjected to treatment contrary to Article 2 (right to life) and Article 3 (prohibition of torture) of the European Convention on Human Rights.

Same-sex sexual activity is a criminal offence in Senegal. The Court recently rejected an application in a similar facts case concerning Senegal in A.N. v France.

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. For a summary of recent jurisprudence in this area, see here.

Tuesday, 6 September 2016

"Going to Strasbourg" published this week

I have just received some advance copies of my new book, Going to Strasbourg, which is published this Thursday by Oxford University Press

The book, which contains oral history accounts by applicants to Strasbourg who challenged sexual orientation discrimination in the UK, is published just as the UK Conservative government begins another round of criticism of human rights law. 

The UK government looks set to repeal the Human Rights Act 1998 and replace it with legislation that will almost certainly remove or weaken the duty of UK domestic courts to 'take into account' the jurisprudence of the European Court of Human Rights. 

If that was not bad enough, there remains the lingering concern that the UK might leave the ECHR system. The Prime Minister, Theresa May, is an outspoken opponent of the ECHR and has said that it "can bind the hands of parliament, adds nothing to our prosperity, [and] makes us less secure by preventing the deportation of dangerous foreign nationals". 

Going to Strasbourg tells a different story, showing how the ECHR system has been a vital means by which people in the UK have challenged discrimination based on sexual orientation. It demonstrates very clearly that the tolerance and equality that characterises the UK today is the result, in large part, of the UK's membership of the ECHR.

On the same day that my book is published, OUP also publish Professor Conor Gearty's new book, On Fantasy Island, which looks set to provide further antidote to the anti-human rights fever that is spreading across the UK.

The Going to Strasbourg book launch is on Friday October 21 at Conway Hall and everyone is welcome.

Friday, 2 September 2016

New article on "gay" family life and the ECHR

Sabrina Ragone and Valentina Volpe have published an article in the German Law Journal titled "An Emerging Right to a 'Gay' Family Life? The Case Oliari v. Italy in a Comparative Perspective". 

Here is the abstract: 
This Article analyses, through the lens of comparative law, the Oliari and others v. Italy judgment,which was issued by the European Court of Human Rights (ECtHR) in July 2015. The Oliari case is important for being the first judgment in which the ECtHR established the granting of legal "recognition and protection" to same-sex couples as a positive obligation for the Member States of the Council of Europe on the basis of Article 8 of the European Convention on Human Rights. In order to understand the role of judicial bodies in the progressive protection of homosexual rights, thisArticle combines an analysis of European case law with the national perspective. As it concerns the supranational facet, the authors illustrate Oliari's reasoning and situate the case in the jurisprudence of the ECtHR. Elements of both continuity and innovation emerge from the analysis, as well as a relevant dimension of judicial dialogue supporting the incremental recognition of gay rights inEurope. As it concerns the national facet, this specific case was initially dealt with at the domestic level and was the object of judgment 138/2010 by the Italian Constitutional Court. The judgment is critically put into perspective through the examination of the jurisprudence of other EuropeanConstitutional Courts (France, Portugal and Spain) that were called on to decide similar cases in the same period. Therefore, the Article offers a comparative analysis of the Oliari judgment clarifying its relevance and speculating on the potential value of this case for the future recognition of the right to a "gay" family life in Europe.
The article can be downloaded here:


Thursday, 11 August 2016

New book on Peter Wells and X. v the United Kingdom 1975-79

For those interested in the history of applications to the Strasbourg organs about sexual orientation discrimination, the case of X. v the United Kingdom (1975-79) has long been of significance and fascination. This is not least because the application - lodged by a twenty-six-year-old man who had been convicted and sentenced to two-and-a-half years in prison for committing buggery with two eighteen-year-old men - was the very first application concerning sexual orientation discrimination to be declared admissible by the European Commission of Human Rights. The complaint by the applicant - about both his conviction and the legislation under which it was secured - was also the first attempt to use the Convention as a means to challenge the 'age of consent' in England and Wales which, for male homosexual acts, was twenty-one years (five years higher than for most opposite-sex acts and female same-sex acts).

The Commission rejected all of the applicant's complaints brought under Articles 8, 10 and 14 of the Convention. The Commission's report has long been the subject of discussion and analysis by legal and socio-legal scholars and can be regarded as having provided an important foundation for subsequent complaints to the Commission about discrimination created by the age of consent. Yet, until now, very little - if anything - has been publicly known about the applicant who brought the case. I am pleased, therefore, that in my forthcoming book, Going to Strasbourg, the applicant's lawyer in the Commission, William Nash, provides an insightful oral history account of the case and discusses its importance. And I am delighted that a new book has now appeared that provides an illuminating and fascinating account of the applicant himself, Peter Wells. 

The Story About Peter Wells, by Merrick Badger, is a short but detailed account of Wells' life and the key events that led to his conviction and subsequent Strasbourg case. Badger has painstakingly traced Wells' life from his youth until his death, allowing us an insight into the biographical context in which the Strasbourg case was brought. Badger first became aware of Peter Wells when he noticed a reference to him in the first version of Tom Robinson's song 'Glad to be Gay'. An interest in the song sparked a quest to track down people who knew Wells - including, most importantly, Wells' eighteen-year-old boyfriend at the time of his arrest and conviction - and to interview them. The interview material allows Badger to bring Wells' story to life and to highlight the appalling treatment he endured. What becomes apparent is that Wells was a 'complex' character, and the book does not ignore certain 'difficult' aspects of the intimate relationships he formed with others. On the contrary, the book attempts to tease out some of these issues and show how they contributed to Wells' treatment by the criminal justice system and by the Strasbourg organs. 

The book is a moving account of the criminalisation of a man for engaging in intimate relationships that are now legal and of the failure of the Convention system to protect him. I recommend it to anyone interested in this case or Strasbourg case law on sexual orientation generally.

The book is available here:

An audiobook, wonderfully read by Tom Robinson, is also available. 

The Commission's report on X. v the United Kingdom is available here:

Monday, 25 July 2016

Judges Spano and Bianku on same-sex couples, marriage, and family life

In the recently issued judgment of the European Court of Human Rights in Taddeucci and McCall v Italy - in which the Court held that excluding a same-sex couple, who were unable to marry, from a benefit available to married couples was a violation of Article 14 taken in conjunction with Article 8 of the Convention - Judge Spano (Iceland), who was joined by Judge Bianku (Albania), made some very striking comments, in a concurring opinion, about same-sex couples, marriage and family life. Judge Spano said:
I will not express a view on the Court’s current case-law granting deference to the Member States in deciding whether to legalise same-sex marriage. As things stand, that is the position of the Court, one by which I am bound on the basis of the principle of stare decisis. However, as recognised in Schalk and Kopf v. Austria (no. 30141/04, § 105, ECHR 2010), things may change [...] I am writing separately to highlight the fact that although States are not under an obligation to afford same-sex couples access to the institution of marriage, that does not mean that these individuals are unable to find sanctuary in this Court when invoking the right to respect for their family lives in particular contexts. On the contrary, if States decide to exclude same-sex couples from being able to marry, such a decision may have consequences when this Court is called upon to examine a claim of unjustified discrimination within a specific context that falls within the ambit of the right to respect for family life under Article 8 taken in conjunction with Article 14 of the Convention.
The significance of these comments will be obvious to anyone who follows the Court's jurisprudence on same-sex couples, marriage and family life. They are made in the context of the Court having consistently maintained that the right to marry enshrined in Article 12 of the Convention 'refers to the traditional marriage between persons of opposite biological sex' (Rees v the United Kingdom [1986], reiterated by the Grand Chamber in Hämäläinen v Finland [2014]) and that this places no obligation on Contracting States to grant same-sex couples access to marriage (see, most recently, Chapin and Charpentier v France [2016]). It also, in my viewremains unclear whether and in what circumstances Article 12 is applicable to same-sex couples. Moreover, there is the general context of the Court (and the former Commission) having for decades promulgated the view that same-sex couples enjoy no protection for their "family lives" under Article 8 of the Convention - a view that was finally changed in 2010 (Schalk and Kopf v Austria [2010]).

Understood within the history of Convention jurisprudence, the comments made by Judges Spano and Bianku appear to me to be incredibly important. It may be wishful thinking, but I read the comments in the following way:
I will not express a view on the Court’s current case-law granting deference to the Member States in deciding whether to legalise same-sex marriage [I am now going to express my view on the Court's current case law and its deference to States that do not wish to legalise same-sex marriage] 
As things stand, that is the position of the Court, one by which I am bound on the basis of the principle of stare decisis [I disagree with the current position of the Court, but, unfortunately, precedent dictates that I must be bound to the collective decision-making of my colleagues].  
However, as recognised in Schalk and Kopf v. Austria ... things may change [Things, however, are going to change, and at some point in the future, the Court will declare that Article 12 of the Convention requires States to permit same-sex couples to marry]. 
I am writing separately to highlight the fact that although States are not under an obligation to afford same-sex couples access to the institution of marriage, that does not mean that these individuals are unable to find sanctuary in this Court when invoking the right to respect for their family lives in particular contexts [I am writing to make it absolutely clear that, regardless of whether States decide to allow same-sex couples to marry, same-sex couples can find sanctuary - and I use that word deliberately to mean refuge from persecution and danger - in the European Court of Human Rights when States do not respect their right to respect for their family lives]. 
On the contrary, if States decide to exclude same-sex couples from being able to marry, such a decision may have consequences when this Court is called upon to examine a claim of unjustified discrimination within a specific context that falls within the ambit of the right to respect for family life under Article 8 taken in conjunction with Article 14 of the Convention [If States continue to exclude same-sex couples from marriage, and grant special privileges to married opposite-sex couples, this Court is now ready to more effectively use provisions in the Convention to address this unjustified discrimination]. 
Wishful thinking? Perhaps, but not outlandishly so.

Many thanks, Judges Spano and Bianku!