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.