Monday, 22 July 2013

M.K.N. v Sweden

It has been over three weeks since I first reported the judgment of the European Court of Human Rights in M.K.N. v Sweden

In its judgment the Court dismissed the applicant's complaint that his deportation from Sweden to Iraq would put him at risk of being subject to treatment in violation of Article 3 of the European Convention on Human Rights. 


The applicant, a married man with a wife and two children, claimed that one of the reasons that he was at risk of treatment that would violate his Article 3 rights was because of potential persecution in light of a previous homosexual relationship.


The applicant stated:

'after his departure from Iraq, the Mujahedin had found out that he had had a homosexual relationship and that, as a consequence, his partner had been stoned to death. The Mujahedin had also been looking for the applicant in 2009 due to this relationship. He had not revealed this information earlier as he had not been aware that homosexual relationships were accepted in Sweden. Despite this relationship, his intention was to continue living with his wife'.

In the time since I reported this judgment there has been (as far as I can see) no other discussion in any Internet fora of the homosexual aspect of the complaint. Apart from the report of the judgment by the excellent European Courts blog, no one has given serious consideration to the risk of homophobia raised by the applicant.  

As I reported in my earlier post, one of the key issues of this complaint was that the applicant did not claim to be gay. The complaint did not involve the applicant either attempting to prove a homosexual sexual identity or demonstrate his desire to live in the future as a man with a homosexual sexual orientation. On the contrary, the applicant stated that he wished to continue living with his wife. 

However, as I also argued in my previous post, the fact that the applicant did not claim to be a homosexual should not diminish the validity or legitimacy of his complaint about potential persecution based on a previous homosexual relationship. The applicant's complaint, that a previous homosexual relationship put him at risk of being subject to treatment in violation of Article 3, should be considered irrespective of his present sexual identity or intimate relationship. 

I find the lack of interest in this case very concerning, especially in light of the behaviour of the Court. The Court gave no serious consideration to the issue of homophobia raised by the applicant. Furthermore, in dismissing the applicant's claim as 'not credible' the Court provided no explanation of why it did not believe the applicant's account. 

There is no doubt that the facts in this case were weak but, as I argued in my previous post, there are many possible reasons for this and these could have been given more robust consideration. The Court could have engaged in a more reasoned analysis of how it is possible to prove homosexuality (in the form of a previous homosexual relationship) under the circumstances of the applicant. The Court could also have considered why an individual in the applicant's position might decide not to reveal such information immediately to immigration authorities.  

My central concern about this judgment, and the lack of response to it, is that those who do not claim to be gay and attempt to convince the Court of a homosexual sexual identity will potentially be overlooked and forgotten. This is worrying because those who do not wish to assert a homosexual identity (for whatever reason) are as vulnerable to homophobia as those that do. 

Whilst the facts in this case were indeed weak, the issues the judgment raises are important and this case deserves more discussion and debate. 

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