Monday, 22 May 2017

"Are gay rights human rights?" - text of a "Pint of Science" talk

On the 16th of May 2017, I was invited to give a "Pint of Science" talk on the theme of "Sexuality in Society". My co-speakers were Prof Stevi Jackson, and Alix Fox. The event took place in a pub in York, and the theme of my talk was "are gay rights human rights?"

The text of the talk is available here:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2971762

 

Wednesday, 17 May 2017

IDAHOT 2017: COME OUT FOR HUMAN RIGHTS!

Many thanks to Silvia Falcetta, for the following:

To mark the International Day Against Homophobia, Transphobia and Biphobia, IDAHOT, the Council of Europe has launched a webpage – under the slogan COME OUT FOR HUMAN RIGHTS - which gives an interactive overview of the legal and social conditions experienced by sexual minorities throughout the 47 Countries of the CoE.

Thanks to a user-friendly layout and clear keywords, it is easily accessible to the general public and it explains the origins and the importance of commemorating, every 17 May, the 1990 decision of the World Health Organisation to remove homosexuality from the list of mental disorders. Under each thematic section, data and animations highlight the rates of discrimination and the incidence of hatred violence on LGBTI people, showing how prejudice still affects the everyday life of gay men, lesbians and transgender persons across the CoE. Further, detailed Reports and short interviews to Commissioners and Parliamentary members involved in specific projects illustrate the actions undertaken by the CoE against homophobia and transphobia.

The message conveyed throughout this webpage is as simple as powerful: LGBT rights are not special rights and, as the Secretary General of the CoE remarked yesterday “LGBTI people have the same rights as everyone else under the European Convention on Human Rights”.

A particular praise goes to the Secretary General for directly addressing the violent crackdown on gay men in Chechnya and for his firm condemn of hatred violence and irresponsible political speech: “I am particularly concerned about the recent allegations of mass persecutions of LGBTI people in the Chechen Republic of the Russian Federation. Discrimination and violence against LGBTI people is the worst kind of populism. Using minorities as scapegoats is unfortunately a growing trend. It is dangerous to democracy and governments must do all they can to stop it. Societies based on human rights, democracy and the rule of law need strong anti-discrimination laws, which are properly applied, and policies to integrate minorities and protect their rights. We also need to tackle irresponsible political dialogue inciting people to hatred and prejudice”.

It is to be hoped that such explicit stances will encourage the CoE institutions to actively urge the Russian Federation and all CoE countries to fully comply with their obligations under human rights law. Likewise, it is to be hoped that the clear reference to the European Convention of Human Rights as the crucial legal frame to tackle homophobic and transphobic discrimination will reinforce the ECHR willingness to act as a ‘sanctuary’ for people discriminated and prosecuted on the grounds of their sexual orientation and gender identity. 

Link to COME OUT FOR HUMAN RIGTHS page: 
http://www.coe.int/en/web/human-rights-channel/idahot

Link to the Secretary General speech: 


Monday, 8 May 2017

New communicated case - Beus v Croatia

The Second Section of the European Court of Human Rights has communicated the case of Beus v Croatia, which was lodged on 27 February 2017. 

The case concerns the complaint by Mr Ante Beus that, following a homophobic attack (during which he was hit twice on the head and once on the body, resulting in haematoma and swellings on his face), that domestic authorities failed to act appropriately in dealing with the crime committed against him. 

Mr Beus complains, under Articles 3, 8 and 14 of the European Convention on Human Rights, about the lack of an appropriate procedural response of the domestic authorities to the acts of homophobic violence against him.


Thursday, 4 May 2017

Religion, marriage, and same-sex couples

I'm pleased to make available a new article, co-written with Professor Robert Vanderbeck at the University of Leeds, which explores the ways in which "space" and "words" are used to maintain differences between same-sex and opposite-sex couples in respect of "religious marriage".

Information about the article, which includes some interesting and revealing statistics, is available here:

https://www.york.ac.uk/news-and-events/news/2017/research/same-sex-couples-marriages/


Tuesday, 25 April 2017

New article on the Church of England and sexual orientation equality law

I am pleased to make available a new article, co-written with Robert Vanderbeck at the University of Leeds, called "Sexual Orientation Equality and Religious Exceptionalism in the Law of the United Kingdom: The Role of the Church of England".

The article, as its title suggests, considers the role of the Church of England in ensuring the inclusion of provisions in legislation that exempt it and other religious organisations from the legal requirement to treat people equally on the grounds of sexual orientation.

Here is the abstract:

There is a growing literature that addresses the appropriateness and merits of including exceptions in law to accommodate faith-based objections to homosexuality. However, what has rarely been considered and, as a consequence, what is generally not understood, is how such religious exceptions come to exist in law. This article provides a detailed analysis of the contribution of the Church of England to ensuring the inclusion of religious exceptions in United Kingdom legislation designed to promote equality on the grounds of sexual orientation. The article adopts a case study approach that, following the life of one piece of anti-discrimination legislation, shows the approach of the Church of England in seeking to insert and shape religious exceptions in law. The analysis contributes to broader debates about the role of the Church of England in Parliament and the extent to which the United Kingdom, as a liberal democracy, should continue to accommodate the Church’s doctrine on homosexuality in statute law.

Tuesday, 18 April 2017

New communicated case concerning gay asylum - O.S. v Switzerland

The Third Section of the European Court of Human Rights has communicated the case of O.S. v Switzerland. The case concerns a Gambian national, Mr O.S., who is approximately 33-years-old and who has been refused asylum in Switzerland.

The facts

Mr O.S. arrived in Switzerland in 2008 and applied for asylum under a false name and nationality. This request was rejected and Mr O.S.'s expulsion was ordered. Mr O.S. was subsequently convicted of an offence and served two periods in prison. Prior to his first period of imprisonment, Mr O.S. had applied again for asylum under his real name. He based his request on the fact that he is homosexual and is therefore at risk of persecution in Gambia. 

Gambia continues to enforce law relating to homosexual acts that was enacted during the British colonial period. The Gambian Criminal Code makes "carnal knowledge of any person against the order of nature" (which has been defined to include any homosexual act) an offence punishable by up to 14 years of imprisonment, or up to life imprisonment in certain "aggravated" circumstances. The Criminal Code further makes "gross indecency" between persons of the same sex an offence punishable by up to five years of imprisonment. Gambian criminal law relating to homosexual acts has been amended twice since 2005 to strengthen the prohibition of such acts. 

Mr O.S.'s second asylum request was denied.

In 2014, Mr O.S. and his same-sex partner officially registered their relationship and applied for family unification - that is, a residence permit for Mr O.S. to stay with his registered partner in Switzerland.

In 2015, the Swiss migration authorities refused Mr O.S.'s request and ordered his expulsion. They further stated that Mr O.S. had to await the outcome of any appeals outside of Switzerland. Mr O.S. appealed the refusal, and this appeal is pending before the Administrative Court.

Mr O.S. also requested an interim measure, allowing him to stay in Switzerland during the appeal proceedings. This request has been repeatedly denied. In December 2015, the Swiss Federal Supreme Court held that there was a high probability that Mr O.S.'s appeal against his expulsion would not be successful, in particular owing to his criminal conviction and his conduct during the asylum proceedings. The Court further held that:
"there were no concrete obstacles for [Mr O.S.] to return to Gambia, at least temporarily. [He] and his partner had so far only lived together for a very limited period since [he] had been imprisoned for a considerable amount of time during their relationship. Furthermore, there were no indications that the Gambian authorities were aware of [Mr O.S.'s] homosexuality or partnership. Therefore ... there was no real risk for [Mr O.S.] under Article 3 [of the Convention], when returned to Gambia."
Complaint to the Court

Mr O.S. complains under Article 3 of the Convention about his impending expulsion to Gambia. He fears that, "owing to his homosexuality, even a temporary return to Gambia would expose him to a real risk of arbitrary detention, imprisonment and torture".

Question to the Parties

The Court has asked the following question:
"In the light of [Mr O.S.'s] claims and the documents which have been submitted, would he face a risk of being subjected to treatment in breach of Article 3 of the Convention if the expulsion order were enforced?"
Context

As I have previously written here (the last time was in January, concerning the case of M.B. v Spain) this case 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 argued here, amounts to a shameful history.

The Council of Europe's approach to the issue of asylum and sexual orientation discrimination, including the case law of the Court, is summarised in my recent chapter which is available here: 

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2927098

Wednesday, 12 April 2017

European Court of Human Rights communicates further complaints against Russia regarding LGBT rights

The European Court of Human Rights has communicated Ecodefence and Others v Russia, which is a case against the Russian Federation comprising a large number of individual applications. Four of the applications are by LGBT focused organisations.

The complaints, which are made under Articles 10 (freedom of expression), 11 (freedom of assembly and association), and 14 (prohibition of discrimination) of the European Convention on Human Rights, concern the "Foreign Agents Act".

In 2012, the Foreign Agents Act introduced the concept of a “foreign agent” into the Law on Non-Commercial Organisations which had the effect of regulating Russian non-commercial organisations that receive funds and other property from foreign States and which engage in "political activity" (defined as participating "in the organisation and implementation of political actions in order to influence State authorities’ decision-making affecting State policy and public opinion").

The law requires all organisations exercising the functions of a “foreign agent” to seek registration with the Ministry of Justice. Such "foreign agent" bodies are subject to routine, unscheduled inspections. They are also required to label their publications as those of a "foreign agent". An organisation not complying with the law can be subject to criminal sanction.

The LGBT-focused complaints

The facts in the four applications that have an LGBT focus are as follows:

Rakurs v. Russia (application no. 44403/15, lodged on 04.09.2015) 

Full Russian name of the applicant organisation: Архангельская региональная общественная организация социально-психологической и правовой помощи лесбиянкам, геям, бисексуалам и трансгендерам (ЛГБТ) "Ракурс" 
Representative before the Court: I. Khrunova
Place of registration: Arkhangelsk
Mission of the applicant organisation: Protecting human dignity, rights and interests of victims of homophobia and discrimination; support and rehabilitation of LGBTs.
Date included in the register (or other type of interference): 15.12.2014
Date and authority that carried out the inspection: Arkhangelsk and Nenetskiy Region Justice Department, November-December 2014.
Actions taken to constitute political activities: Organising a seminar on communication problems between homosexuals and physicians, a round-table discussion on facts and myths relating to homosexuals and bisexuals; promoting non-discrimination and fighting against discrimination on the ground of sexual orientation; holding a training for medical doctors on prevention of HIV and sexually transmitted diseases in homosexual community; psychological assistance to the LGBTs’ next-of-kin; organising seminars on transgender issue, legal formalities in case of gender reassignment, “coming out” initiatives; protesting against the law on propaganda of homosexuality and advocating for protection of transgender people’s rights; meeting with representatives of the “Yabloko”, Russian opposition party; organising a round-table discussion on xenophobia and stigmatising and posting publication on this issue on a website; assisting to MSMs (men who have sex with men); discussing laws relating to LGBT community; participating in seminars on HIV prevention and on LGBT movement; organising flash mobs against discrimination of LGBTs; organising training on how to engage more volunteers to assist LGBTs; discussion on the issue of gender and gender equality; organising trainings on LGBTs’ health issues and posting information on this training on the Internet, security issues and rights of LGBTs in Russia; promoting amendments to Russian law to protect the LGBT community; distributing materials on discrimination on the ground of sexual orientation, submitting these materials to a library; storing materials on unisexual families, status of LGBTs, discrimination on the ground of sex orientation, a flyer describing a “homophobic law” adopted by the St.-Petersburg parliament; meeting with representatives of the USA parliament; making statements on discrimination of LGBTs in Russia on CNN, American television channel.
Foreign funder(s): Nordic Council of Ministers, Oslo Universitetssykehus HF, Civil Rights Defenders, OSIAF, Purpose Action Ins., Stichting Internationaal Onderwijs, Front Line Defenders, NED, Arcus Operating Foundation, Embassy of the Netherlands
Judicial decisions: 12 February 2015, Justice of the Peace of the Solombalskiy Court District, fine for failure to register as a foreign agent.
Any additional findings in the court proceedings: None. The courts fully endorsed the findings of the inspection. 

Maximum Centre v. Russia (application no. 49258/15, lodged on 30.09.2015)

Full Russian name of the applicant organisation: Мурманская региональная общественная организация "Центр социально-психологической помощи и правовой поддержки жертв дискриминации и гомофобии "Максимум"
Representative before the Court: I. Khrunova
Place of registration: Murmansk
Mission of the applicant organisation: Protecting and rehabilitating LGBT persons and protecting their rights; providing legal assistance; contributing to the elimination of discrimination and homophobia.
Date included in the register (or other type of interference): 04.02.2015
Date deleted from the register: 28.10.2015
Reason for deletion: Liquidated
Date and authority that carried out the inspection: Murmansk Region Justice Department, December 2014-January 2015.
Actions taken to constitute political activities: Organising a protest against xenophobia, violence and discrimination, “the Rainbow flash mob” on the International Day against Homophobia; supporting school teachers dismissed because of their sexual orientation; lodging applications with State authorities to have protests against xenophobia and discrimination; cooperating with other LGBT organisations; inviting minors to an LGBT centre where material on being LGBT was available; participating in events organised by the Russian LGBT network; publishing statements criticising Russian laws; cooperating with the Regional Youth Human Rights Council.
Foreign funder(s): Civil Rights Defenders, General Consulate of the Netherlands, Arcus Operating Foundation
Judicial decisions: 10 March 2015, Justice of the Peace of the Leninskiy Court District of Murmansk, fine for failure to register as a foreign agent.
Any additional findings in the court proceedings: None. The courts fully endorsed the findings of the inspection.

Perm Human Rights Centre (Perm HRC) v. Russia (application no. 35816/16, lodged on 08.06.2016)

Full Russian name of the applicant organisation: Общественная организация "Пермский региональный правозащитный центр"
Place of registration: Perm
Mission of the applicant organisation: Protecting human rights, particularly those of prisoners and the victims of crimes committed by law-enforcement officers.
Date included in the register (or other type of interference): 03.09.2015
Date and authority that carried out the inspection: Perm Region Justice Department, June-July 2015.
Actions taken to constitute political activities: Publications on and participation in discussions on respect for human rights in Perm prisons, the reform of the law-enforcement authorities, the recruitment of staff for human rights organisations, the protection of areas of cultural heritage, the equality of convicted persons, the prison officers’ ethics code, public monitoring committees, gender education, human rights, security and dignity in detention facilities, pro bono legal assistance in Russia, political competition, the interaction between human rights activists, defenders and the LGBT community, civil investigations, public control, amendments to defamation law, the right to work in detention facilities, access to information at police stations and courts, human rights and the work of psychologists in the penal system, the support of juvenile offenders, migrants’ human rights, international cooperation between NGOs, freedom of assembly, the law protecting children from harmful information, Perm’s town charter, the prevention of offences in detention facilities, correctional labour, transparency at the Perm Parliament, the interpretation of information provided by State authorities, the Foreign Agents Act, the right to spa-based therapy in Perm, conditions of detention, and xenophobia; monitoring respect for the right to information and work, children’s rights in Perm detention facilities, the issue of migrants and the Perm labour market, State authorities’ measures on the prevention of crimes and the rehabilitation of criminals; preparing recommendations sent to the authorities; inviting representatives of State authorities to some of the above events; the conviction of a Perm HRC board member, Mr Yushkov, of incitement to extremist actions, and the publication by a founder, Mr Averkiyev, of an article on Russian nationalism, liberalism and sexism on his website.
Foreign funder(s): UNDEF, Macarthur Foundation and European Union
Judicial decisions: 13 October 2015, Justice of the Peace of the Leninskiy Court District, fine for failure to register as a foreign agent.
Any additional findings in the court proceedings: None. The courts fully endorsed the findings of the inspection.

Coming Out v. Russia (application no. 4798/15, lodged on 20.01.2015)

Full Russian name of the applicant organisation: Автономная некоммерческая организация социально-правовых услуг "ЛГБТ организация Выход"
Representative before the Court: D. Bartenev
Place of registration: St Petersburg
Mission of the applicant organisation: Fighting for universal recognition of human dignity and equal rights for all, regardless of sexual orientation or gender identity.
Date included in the register (or other type of interference): No registration. Nature of interference: inspection
Date and authority that carried out the inspection: Prosecutor’s Office of the Tsentralnyy District of St Petersburg, October 2013.
Actions taken to constitute political activities: Protesting against the existence of an administrative offence of promoting homosexuality to minors; publishing guidelines on LGBT discrimination inciting people to protest against the administrative offence; holding a protest against politicians who did not support the values of love, family and human dignity.
Foreign funder(s): Embassies of the Netherlands and Norway
Judicial decisions: 21 July 2014, Vasileostrovskoy District Court of St Petersburg, allowing the prosecutor’s claim for forced registration.
Any additional findings in the court proceedings: The court held that the restrictions prescribed by the Foreign Agents Act did not breach the Convention, and that the guidelines on LGBT discrimination did not contain any direct appeal to influence State authorities’ decisions and change the political line. However, they aimed to shape public opinion. The court further held that there was no need to prove that an organisation had actually influenced State authorities’ decisions, the mere assumption of potential influence being sufficient.

Complaints to the Court

The applicants complain under Articles 10 and 11 regarding the quality of the Foreign Agents Act, their persecution for failing to register as foreign agents, and excessive State control.

The applicants also complain under Articles 10 and 11 taken in conjunction with Article 14 that they are subjected to discrimination and to restrictions and excessive reporting obligations while other NGOs are exempt from such duties. 

Questions to the Parties 

The questions communicated by the Court to the parties in respect of the LGBT focused applications are as follows:

1. In respect of all the applicants, was there a violation of Articles 10 and 11 of the Convention? In particular:
(a) Do the provisions of the Foreign Agents Act meet the “quality of law” requirements  contained in Article 10 § 2 and Article 11 § 2 of the Convention? In particular:
(i) Is the definition of the term “foreign agent” sufficiently clear and foreseeable?
(ii) Are the provisions on foreign financing foreseeable? Does Russian law establish any specific amount, period or form of foreign financing in order for an entity to be recognised a foreign agent?
(iii) Is the definition of “political activity” sufficiently clear and foreseeable in its application?
(iv) Are the labelling requirements formulated with sufficient clarity? Does the national law prescribe with sufficient clarity what material requires labelling or from where the material should originate?
(v) Is the amount of the fine for failure to register as a foreign agent sufficiently foreseeable?
(b) Was the interference “necessary in a democratic society”? Were the reasons for the interference “relevant” and “sufficient”? In particular:
(i) Were the negative connotations of the term “foreign agents” considered when choosing a name for organisations receiving foreign funding? Was such branding “necessary in a democratic society”?
(ii) Was the restriction of applicants’ access to foreign funding “necessary in a democratic society”? What were the consequences of such restriction in terms of the availability of alternative funding? The Government are requested to illustrate their response with specific examples.
(iii) Did registration as a foreign agent have an impact on the applicants’ ability to freely express their ideas and carry out political activity? Was the suppression of the applicant organisations’ free debate and political activities necessary in a democratic society?
(iv) Are the additional reporting requirements applicable to the applicant organisations – such as labelling publications, keeping separate records of income or expenses obtained from foreign sources, submitting reports on activities and the composition of their management bodies, and auditing – proportionate to the aim pursued, and do they impose an excessive burden on the applicants?
(v) Are the sanctions for violation of the Foreign Agents Act proportionate to the gravity of the imputed offences? Did the domestic courts weigh the amount of a fine against the financial standing of an applicant organisation and the potential impact of the fine on the organisation’s sustainability?

2. As regards Article 14, have the applicants suffered discrimination in the enjoyment of their Convention rights on account of their being labelled as foreign agents, contrary to Article 14 of the Convention, read in conjunction with Articles 10 and 11?

Friday, 31 March 2017

Case against Austria, concerning where couples could marry or form a registered partnership, struck out

The complaint in Hörmann and Others v Austria has been struck out by the Fourth Section of the European Court of Human Rights.

The applicants in the case, two same-sex couples, complained under Article 14 of the Convention in conjunction with Article 8 that they were discriminated against on the grounds of their sexual orientation because registered partnerships (which are open exclusively to same-sex couples) had to be concluded before and within the premises of the District Administrative Authority, whereas civil marriages (which are not open to same-sex couples) were concluded before the Office for Matters of Personal Status.

In January 2017, the Austrian Government informed the Court that, with effect from 1 April 2017, there would be no difference in the place where registered partnerships and marriages could be formed - the Office for Matters of Personal Status becoming the competent authority for both. The Government stated that it had eliminated the reason for the applicants’ complaints and requested that the Court strike the case out in accordance with Article 37 § 1 of the Convention.

In response, the applicants informed the Court that they still considered themselves to be victims of the alleged violation of their rights, as the Government had not expressly acknowledged the alleged violations of the Convention and had not afforded any redress for the discrimination suffered.

However, the Court considered that the matter complained of had been resolved within the meaning of Article 37 § 1(b) of the Convention and that respect for human rights as defined in the Convention and its Protocols did not require it to continue the examination of the case.

The applicants had each claimed 50,000 Euro in non-pecuniary damage, and sums in the range of tens of thousands of Euros to cover legal expenses. The Court cannot award damages if a case is struck out of the list, but it can make an award in respect of costs of the Convention proceedings. In this respect, the Court awarded each of the four applicants a small amount of money (750 Euro) each in respect of costs and expenses.

Saturday, 11 March 2017

"Going to Strasbourg" podcast

I am pleased to make available a podcast from the Going to Strasbourg oral history project. 

Here are some details about the podcast:
Why have some gay people in the UK decided to go to the European Court of Human Rights in Strasbourg to complain about discrimination against them? What was their experience of going to Strasbourg, and what was the result? 
In this podcast, Paul Johnson talks to Kevin Bazeley, Andrew Courten, Richard Desmond, Jeffrey Dudgeon MBE, Duncan Lustig-Prean, Will Parry, Emma Riley, Mary Simpson and Euan Sutherland about their experiences of going to Strasbourg. He also hears from academics Loveday Hodson and Robert Wintemute, as well as the human rights lawyer, William Nash.
The podcast can be found here: https://goingtostrasbourg.com/podcast/

Monday, 6 March 2017

My new chapter on LGBTI rights, the Council of Europe and the European Court of Human Rights

I am pleased to make available the first draft of a chapter that will eventually be published in a volume titled International LGBTI Law: Sexual Orientation and Gender Identity Law from an International-Comparative Perspective edited by Prof Andreas R. Ziegler (University of Lausanne).

The chapter aims to provide a comprehensive but condensed assessment of the current state of human rights protection offered to LGBTI people by the Council of Europe and, importantly, identify the gaps that currently exist in that protection. It examines the work of the statutory bodies of the Council of Europe – the Committee of Ministers and the Parliamentary Assembly – as well as the jurisprudence of the European Court of Human Rights. 

This is an uncorrected version of the chapter and any comments on it will be gratefully received! 

The chapter can be found here:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2927098



Tuesday, 28 February 2017

LGBT History Month talk

As part of LGBT History Month, I recently gave a talk at the University of York on "Going to Strasbourg". The slides for the talk can be found here.

Monday, 27 February 2017

Commenting on the sexual orientation of a pop singer violates Article 8 ECHR - Rubio Dosamantes v Spain

The European Court of Human Rights has issued its judgment in Rubio Dosamantes v Spain in which it held that Spanish authorities had failed in their positive obligation to protect the applicant - a pop singer who is famous in Spain - from remarks made on television about her, which amounted to a violation of her right to respect for her private life.

The facts

The case was communicated in 2013, and I wrote about it here at the time. 

Ms Rubio complained about, amongst other things, speculation in the media regarding her (homosexual) sexual orientation on the basis that this infringed her right to honour and to privacy. 

The domestic courts rejected this claim on the basis that homosexuality should no longer be considered shameful and Ms Rubio herself had tacitly consented to the debate on the subject. 

The Court's consideration

The Court, in considering Ms Rubio's complaint, noted that in various television programmes, frivolous comments had been expressed about certain aspects of her private life, mainly in respect of her sexual orientation (or her allegedly stormy relationship with a male partner, including the claim that she had humiliated him and encouraged him to take drugs).

The Court reiterated that journalists have to show "prudence and precaution" when talking about certain matters relating to private life. Therefore, the Court stated, journalists cannot spread unverified rumours or broadcast random comments on any possible aspect of a person’s life. Rather, as the Court stated, the national authorities had a duty to assess the TV programmes in question, in order to distinguish between and to weigh in the balance those matters which were intimately part of Ms Rubio’s private life and those which might have had a legitimate public interest.

The Court concluded that the national authorities had not carefully weighed those rights and interests in the balance, but had merely taken the view that the comments in question had not impugned Ms Rubio’s honour. They had not examined the criteria to be taken into account in order to make a fair assessment of the balance between the right to respect for freedom of expression and the right to respect for a person’s private life. The domestic authorities had therefore failed in their positive obligations and this amounted to a violation of Article 8.

A question...

I make no comment on the correctness of the judgment in this case. I do, however, ask a question: to what extent is it acceptable for the Court to extend the protection of the Convention to a "celebrity" who does not wish her sexual orientation to be discussed in the popular media, when it will not extend the protection of the Convention to gay asylum seekers in European states attempting to resist being forcibly returned to countries outside of Europe that criminalise same-sex sexual acts? The Court tells such asylum seekers that it is their responsibility, when returned to their country of origin, to be 'discrete' about their sexual orientation in order to avoid criminal sanction. In other words, it is for European states to protect individuals, such as Ms Rubio, from media discussion of their sexual orientations, but it is for asylum seekers to shoulder full responsibility for any interest taken in their sexual orientations by the legal systems of their countries of origin. Perhaps, to quote Judge Power-Ford, "[s]omething doesn’t fit"?
 

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:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2912904

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.