Saturday, 3 December 2016

New academic article on ECHR and homosexuality

Christine Byron, lecturer in law at Cardiff Law School, has published a new article in the Judges' Journal (published by the American Bar Association) titled "The European Court of Human Rights: A Living Instrument as Applied to Homosexuality".

The article can be found here:


Tuesday, 22 November 2016

Seizure of copies of a magazine promoting LGBT rights in Turkey breached ECHR - Kaos GL v Turkey

The European Court of Human Rights has today issued its judgment in Kaos GL v Turkey in which it has unanimously held that the applicant had suffered a violation of Article 10 (freedom of expression) of the European Convention on Human Rights. The case concerned the seizure of all the copies of a magazine published by Kaos GL, a "cultural research and solidarity association for gays and lesbians".

The facts 

From the Court's press release: 

The applicant is a Turkish association known as “The Kaos cultural research and solidarity association for gays and lesbians”, based in Ankara. Its aim is to promote the rights of the lesbian, gay, bisexual and transsexual (LGBT) community in Turkey. 

On 21 July 2006 the Ankara Chief Prosecutor, drawing on section 25(1) of the Press Act, seized three copies of issue 28 of the magazine Kaos GL before its distribution. The issue in question contained articles and interviews on pornography related to homosexuality, illustrated with occasionally explicit images. On the same day the Criminal Court of First Instance, at the request of the Chief Prosecutor, ordered the seizure of the 375 copies of issue 28 of the magazine with a view to launching criminal investigations. That court considered that the content of some of the articles and some of the images published were contrary to the principle of protection of public morals. The Kaos GL association appealed against that decision before the Ankara Criminal Court, which dismissed the appeal.

Furthermore, the Ankara Chief Prosecutor charged Mr Umut Güner, the President of the applicant association and editor-in-chief of the Kaos GL magazine, with publishing obscene images via the press, an offence punishable under Article 226 § 2 of the Penal Code. He considered that the painting reproduced on page 15 of the issue seized, showing a sexual act between two men, whose sexual organs were visible, was clearly obscene and pornographic. In 2007, the Ankara Criminal Court acquitted Mr Güner of the charge against him. It held that not all the factors constituting the offence were present because the copies of the magazine had been seized before they could be distributed. The Criminal Court also ordered the return of the 378 copies of the magazine seized to the defendant once the decision had become final. In 2012 the Court of Cassation upheld the judgment of the Criminal Court of First Instance.

The Court's judgment

From the Court's press release: 

Assessing whether the interference was prescribed by law, the Court noted that the domestic authorities had seized the copies of issue 28 of the magazine Kaos GL pursuant to Article 28 of the Constitution and Article 162 of the Code of Criminal Procedure. Furthermore, the Court observed that the legitimate aim pursued by the impugned interference had been to protect public morals.

As regards whether the interference had been “necessary in a democratic society”, the Court considered the reasons given by the domestic court and concluded that in the present case it was impossible to determine, from the decisions taken by the domestic courts, the reason why a given article or a specific an image in the issue in question of the magazine had infringed public morals. Indeed, there was nothing in the decision of the Criminal Court of First Instance to seize the magazines to suggest that the judge had examined in detail the compatibility of the magazine’s content with the principle of protection of public morals. Nor did the Criminal Court’s decision to dismiss the appeal against the seizure decision set out any further relevant details or reasoning. The Court accordingly considered that the protection of public morals argument advanced in such a broad, unreasoned manner had been insufficient to justify the decision to seize and confiscate all the copies of issue 28 of the magazine for over five years.

The Court then conducted its own analysis of the impugned publication, and noted that having regard to the content of the articles concerning the sexuality of the LGBT community and pornography, and to the explicit nature of some of the images used, issue 28 of the magazine could be considered as a publication specifically aimed at a certain social category. Nonetheless, the Court was prepared to accept that the measures taken to prevent access by specific groups of individuals - minors in particular - to this publication might have met a pressing social need, namely the need to protect the sensibilities of a section of the general public.

The Court noted, however, that it had been unjustifiable to prevent general public access to the impugned issue of the magazine. It emphasised that the domestic authorities had not attempted to implement any preventive measure less harsh than seizure of all the copies of the issue in question. Such a measure might have involved, for example, prohibiting the sale of the magazine to persons under the age of 18, or requiring special packaging with a warning for minors, or even withdrawing the publication from the newspaper kiosks, but not seizing subscriber copies.

Even supposing that the issue seized, accompanied by a warning for persons under the age of eighteen, could have been distributed after the return of the confiscated copies, that is to say after the Court of Cassation judgment of 29 February 2012, the Court held that the confiscation of the copies of the magazine and the delay of five years and seven months in distributing the publication could not be considered as proportionate to the aim pursued.

The Court therefore held that the seizure of all the copies of issue 28 of the magazine Kaos GL amounted to a disproportionate interference with the exercise of the applicant association’s right to freedom of expression and had not been “necessary in a democratic society” within the meaning of Article 10 of the Convention. There had therefore been a violation of Article 10 of the Convention.

Significance of the judgment

This is a significant judgment for at least two reasons. 

First, this is the first time that the Court has held that the suppression of a LGBT-specific publication promoting the interests of LGBT people amounts to a violation of Article 10 of the Convention. As such, the judgment establishes that the protection of morals cannot justify the blanket restriction of publications which positively promote LGBT people. 

Second, the judgment also appears to evolve the Court's jurisprudence on the issue of the regulation of pornography. This is the first time that the Court has held that the blanket restriction of pornographic images amounts to a violation of Article 10 and, as such, it establishes a new human rights standard for the regulation of sexual imagery. Whilst this is, obviously, not a LGBT-specific issue it is significant for LGBT rights because of the way in which public authorities have often focused on any sexual content in publications to justify their suppression. 





Tuesday, 25 October 2016

New communicated case against Russia concerning "homosexual propaganda" law

The European Court of Human Rights has communicated the case of Sozayev and Others v Russia. The case concerns the treatment of five applicants who were involved in peaceful public protests against the introduction of a regional law banning “homosexual propaganda directed at minors”.

The facts

In 2012 the Novosibirsk Regional Legislative Assembly introduced a federal bill banning “propaganda for non-traditional sexual relationships directed at minors” to the State Duma (the lower chamber of the Russian Parliament). The bill was supported by Ms Yelena Mizulina from the Fair Russia party; it became known as “the Mizulina bill” after her.

On several occasions in December 2012 and January 2013 opponents of the bill gathered in front of the State Duma building in Moscow to protest against its adoption by kissing each other. They were arrested and charged with minor disorderly acts under the Code of Administrative Offences of Russia.

In the evening of 6 June 2013 the mass media announced that the second and the third readings of the Mizulina bill were to take place on 11 June 2013 in the State Duma. On 8 June 2013 Ms Yelena Kostyuchenko, a journalist, called on opponents of the bill to come to the State Duma building and take part in a peaceful protest against it on the day of the second and third readings. Information about the protest was published on social media.

On 11 June 2013 at around noon about thirty opponents of the bill came to the entrance of the State Duma building facing Georgiyevskiy Lane in Moscow. Journalists were present there, as well as a group of about 100 conservative Orthodox Christian activists who were supporting the bill. Riot officers from the Moscow Police Department were also present in Georgiyevskiy Lane; they stood between the opponents of the bill and the Christian activists. The opponents of the bill lined up against the wall of the State Duma building and kissed their partners. Christian activists chanted “Moscow is not Sodom!”; the bill opponents tried to shout them down by chanting “Down with fascism”, “Moscow is not Iran” and “Fascism shall not pass”. At some point Christian activists started throwing eggs and nettles at the opponents of the bill.

At around 12.15 p.m. the police officers surrounded the anti-bill protesters and pushed them into police buses. About thirty of them were apprehended in this way and taken to police stations. 

None of the Christian activists were apprehended in this way.

Complaints to the European Court of Human Rights

All the applicants complain under Articles 10 and 11 of the Convention about the allegedly unlawful and disproportionate measures taken against them as peaceful protesters. 

Furthermore, they claim that the dispersal of the gathering which called for equality for LGBT people constituted discrimination on the grounds of their sexual orientation and political views, in violation of Article 14 of the Convention.

The applicants complain that their apprehension by the police officers during the gathering was arbitrary. One applicant complains under Article 5 § 1 of the Convention that his detention at the police station after being arrested at the gathering was unlawful.

All the applicants complain under Article 6 § 1 of the Convention that the proceedings in which they were convicted of administrative offences fell short of the guarantees of a fair hearing. They point out, in particular, lack of impartiality on the part of the domestic courts owing to the absence of any prosecuting authority; that role was allegedly performed by the judges.

Four applicants complain under Article 6 § 3 (d) of the Convention that the courts refused to call prosecution witnesses, namely the police officers who had arrested them at the gathering.

Questions to the Parties

Common questions
1. As regards each applicant, has there been an interference with his or her freedom of peaceful assembly, within the meaning of Article 11 § 1 of the Convention? 
2. If so, was that interference prescribed by law and necessary in terms of Article 11 § 2 of the Convention, in respect of each applicant? In particular, given the spontaneous character of the assembly and that it was impossible to give notice within the time-limit prescribed by law, was the interference proportionate in the circumstances of the present case (see Bukta and Others v. Hungary, no. 25691/04, §§ 35-37, ECHR 2007‑III, and Eva Molnar v. Hungary, no. 10346/05, §§ 36-38, 7 January 2009)? 
3. Have the applicants suffered discrimination in the enjoyment of freedom of assembly contrary to Article 14 of the Convention read in conjunction with Article 11 of the Convention? 
4. Was each applicant’s arrest on 11 June 2013 compatible with the requirements of Article 5 § 1 of the Convention? In particular:(a) What were the legal grounds for the applicant’s arrest during the gathering on 11 June 2013?(b) Did it pursue any aim enumerated in Article 5 § 1 of the Convention? 
5. As regards the applicants’ trials, did they have fair hearings by independent and impartial tribunals in the administrative proceedings against them, in accordance with Article 6 § 1 of the Convention, given the absence of any prosecuting authority, whose role was allegedly performed by the judge?
Case-specific questions
Mr Babitskiy, Ms Mishina, Ms Samoshkina (no. 67685/14) and Mr Samburov (no. 35199/15) 
1. As regards each applicant, were they able to examine witnesses against them, in particular the police officers who had arrested them at the gathering, as required by Article 6 § 3 (d) of the Convention? 
Mr Samburov (no. 35199/15) 
2. Was the applicant’s deprivation of liberty lasting four hours compatible with the requirements of Article 5 § 1 of the Convention? In particular:(a) What were the legal grounds for the applicant’s detention?(b) Did the detention pursue any aim enumerated in Article 5 § 1 of the Convention?

Monday, 24 October 2016

"Going to Strasbourg" book launch



An event was held on Friday 21st October 2016, at Conway Hall in London, to launch Going to Strasbourg: An Oral History of Sexual Orientation Discrimination and the European Convention on Human RightsI and five former applicants to Strasbourg spoke at the event. An audio recording of the talks is available here.



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.