tag:blogger.com,1999:blog-71009259320212102472024-03-13T20:50:15.858+00:00ECHR Sexual Orientation BlogPaul Johnsonhttp://www.blogger.com/profile/03461850697230434763noreply@blogger.comBlogger343125tag:blogger.com,1999:blog-7100925932021210247.post-69717021705939090372023-09-13T22:26:00.000+01:002023-09-13T22:26:03.003+01:00Sexual orientation discrimination and Article 14 of the ECHR<p></p><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgNXs7TJGX98tai_lA2adREdwPK_7u_d1vRu8h_OGkN32bn4L7kb4iXD7O7ahnk2wFlUJOJnkzqlvPcH87r0SptjzeuqHA0daig9eh0BJEEP8XKIDRi-d9VHDnX40_-RcHfiKHj9Zbo5rWyjjm6y_ZdNUxPhRSeHdPpKusn0NH_Wx49gfV8YZ1FuQ8EnKB7/s3010/Screenshot%202023-09-13%20at%2022.13.30.png" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="812" data-original-width="3010" height="173" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgNXs7TJGX98tai_lA2adREdwPK_7u_d1vRu8h_OGkN32bn4L7kb4iXD7O7ahnk2wFlUJOJnkzqlvPcH87r0SptjzeuqHA0daig9eh0BJEEP8XKIDRi-d9VHDnX40_-RcHfiKHj9Zbo5rWyjjm6y_ZdNUxPhRSeHdPpKusn0NH_Wx49gfV8YZ1FuQ8EnKB7/w640-h173/Screenshot%202023-09-13%20at%2022.13.30.png" width="640" /></a></div><span style="font-family: arial;"><br />I have made available a draft of an article that considers how the European Court of Human Rights applies and interprets Article 14 of the European Convention on Human Rights in cases concerning sexual orientation discrimination.</span><p></p><p><span style="font-family: arial;">Here is the abstract:</span></p><blockquote style="border: none; margin: 0 0 0 40px; padding: 0px;"><p style="text-align: left;"><span style="background-color: white; font-size: 16px;"><span style="font-family: arial;">Gay and lesbian people have long looked to Article 14 of the European Convention on Human Rights to challenge and address odious forms of discrimination against them. Article 14 ECHR, which prohibits discrimination in respect of the enjoyment of the rights and freedoms contained in the ECHR, has been invoked in a wide range of complaints about sexual orientation discrimination in the European Court of Human Rights since the early 1980s. Although, over time, the Court has developed important protections for gay and lesbian people through its evolving case law, its approach to Article 14 ECHR in respect of sexual orientation discrimination has remained inconsistent. This article critically explores the inconsistencies in the Court’s approach to applying and interpreting Article 14 ECHR in relation to sexual orientation discrimination. The article explains why the Court’s approach is problematic for gay and lesbian people in terms of the protection of their human rights.</span></span></p></blockquote><p><span style="font-family: arial;">The article is available here: <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4571301">https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4571301</a></span></p><p><br /></p>Paul Johnsonhttp://www.blogger.com/profile/03461850697230434763noreply@blogger.com0tag:blogger.com,1999:blog-7100925932021210247.post-87159548843878699262022-10-27T07:57:00.002+01:002022-10-27T08:10:39.295+01:0040th anniversary of gay law reform in Northern Ireland <p></p><div class="separator" style="clear: both; text-align: center;"><br /><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiaHRmWA6Haxjix9T3blpqLj1Vfs5yck2ZtdhAC8E4fxH3srp_nwF-N5x2bxlX72k9hhR78sqFeuB6-wcj8Jc2DyBo4u-jg4p01zvMHY1BOd-44NEJHtDbyslQcmjv7yIRrz-13B6bc7ZFj_IcO3LIagHioGwbXiQgbqPT65QnkqBqYxbFssL0veRLA_A/s3448/Screenshot%202022-10-26%20at%2022.15.50.png" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="1328" data-original-width="3448" height="246" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiaHRmWA6Haxjix9T3blpqLj1Vfs5yck2ZtdhAC8E4fxH3srp_nwF-N5x2bxlX72k9hhR78sqFeuB6-wcj8Jc2DyBo4u-jg4p01zvMHY1BOd-44NEJHtDbyslQcmjv7yIRrz-13B6bc7ZFj_IcO3LIagHioGwbXiQgbqPT65QnkqBqYxbFssL0veRLA_A/w640-h246/Screenshot%202022-10-26%20at%2022.15.50.png" width="640" /></a></div> <p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;">Forty years ago today, on the 27<sup>th</sup> October 1982, the Privy Council of the United Kingdom made the <a href="https://www.legislation.gov.uk/nisi/1982/1536/pdfs/uksi_19821536_en.pdf" style="color: #954f72;">Homosexual Offences (Northern Ireland) Order 1982</a>. <o:p></o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><o:p> </o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;">With Her Majesty The Queen on a Commonwealth visit to Tuvalu, it was Her Majesty Queen Elizabeth The Queen Mother and Her Royal Highness The Princess Margaret who, as the Counsellors of State in Council, made the Order.<o:p></o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><o:p> </o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;">The purpose of the Order, which came into operation on the 9<sup>th</sup> December 1982, was to extend to Northern Ireland the same reform of the law relating to “homosexual acts” that had happened in England and Wales in <a href="https://www.legislation.gov.uk/ukpga/1967/60/pdfs/ukpga_19670060_en.pdf" style="color: #954f72;">1967</a> and in Scotland in <a href="https://www.legislation.gov.uk/ukpga/1980/62/section/80/enacted" style="color: #954f72;">1980</a>.<o:p></o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><o:p> </o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;">As a consequence, the Order ended the complete criminalization of sexual acts between men in Northern Ireland by partially decriminalizing consensual sexual acts in private between two men of or over the age of 21 years. <o:p></o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><o:p> </o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><b>The European Court of Human Rights<o:p></o:p></b></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><b> </b></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;">The Order was the direct result of the judgment of the European Court of Human Rights in <a href="https://hudoc.echr.coe.int/eng?i=001-57473" style="color: #954f72;"><i>Dudgeon v the United Kingdom</i></a><i> </i>that was promulgated in October 1981. <o:p></o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><o:p> </o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;">In that judgment the European Court of Human Rights had agreed with the applicant, <a href="https://jeffdudgeon.com/" style="color: #954f72;">Jeffrey Dudgeon</a>, that the restriction imposed on him as a gay man, by the laws criminalizing all sexual acts between men, amounted to a violation of the right to respect for private life protected by Article 8 of the <a href="https://www.echr.coe.int/documents/convention_eng.pdf" style="color: #954f72;">European Convention on Human Rights</a>. <o:p></o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><o:p> </o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;">An event was held last year to mark the <a href="http://echrso.blogspot.com/2021/10/dudgeon-v-united-kingdom-40th.html" style="color: #954f72;">40<sup>th</sup> Anniversary</a> of Jeffrey Dudgeon’s victory in the European Court of Human Rights, and to acknowledge its global significance as the first successful “gay rights” case under international human rights law. <o:p></o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><o:p> </o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><b>Parliamentary debates<o:p></o:p></b></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><b> </b></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;">Two days before the Privy Council made the Order, a draft of the Order was debated by the <a href="https://hansard.parliament.uk/commons/1982-10-25/debates/470d7193-cc4e-4f06-8277-bb4d81b77321/NorthernIreland(HomosexualOffences)" style="color: #954f72;">House of Commons</a>. <o:p></o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><o:p> </o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;">The Secretary of State for Northern Ireland, James Prior MP, introduced the debate, emphasising that the United Kingdom had undertaken to abide by decisions of the European Court of Human Rights and, as such, that the Government believed that it must stand by its international obligations and abide by the Court’s judgment in the <i>Dudgeon </i>case.<o:p></o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><o:p> </o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;">Strong opposition to the Order was advanced by Rev. Ian Paisley MP, who argued that the Order “attacks the very cement of society” and “weakens not only the moral but the social fibre of society”, and by Rev. Martin Smyth MP – the MP for the constituency in which Jeffrey Dudgeon lived – who bemoaned Parliament “establishing a pattern as we yield to the gay rights lobby and cry out for equal opportunities”.<o:p></o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><o:p> </o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;">Enoch Powell MP also opposed the Order, principally on the grounds that the Government was acting under the “external compulsion” of the European Convention on Human Rights and, on this basis, that the House of Commons should not legislate “under duress” and impose “judge-made law” – an argument that Leo Abse MP described as an “infantile reaction”. <o:p></o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><o:p> </o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;">The House of Commons overwhelmingly supported the Order, voting Ayes 168 and Noes 21 to approve it.<o:p></o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><o:p> </o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;">A day after the House of Commons debate, the <a href="https://hansard.parliament.uk/lords/1982-10-26/debates/43d4351f-3537-4b21-8035-99afa6ab1d6c/HomosexualOffences(NorthernIreland)Order1982" style="color: #954f72;">House of Lords</a> debated the Order.<o:p></o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><o:p> </o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;">The tone of the Lords debate was overwhelmingly supportive. The Minister of State for Northern Ireland, the Earl of Gowrie, stated that the Order “will not have the adverse effect feared by some on the moral fabric of Northern Ireland society”. <o:p></o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><o:p> </o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;">Lord Elystan-Morgan, who regarded the Order as a measure of “compassionate tolerance” rather than “slack permissiveness”, stated:<o:p></o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><o:p> </o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm 0cm 0cm 36pt;">It is right that the citizens of Northern Ireland should enjoy the same rights in this respect as the citizens of the United Kingdom. It is right also that we should place our law in line with stern international obligations.<o:p></o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><o:p> </o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;">Lord Foot agreed, arguing:<o:p></o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><o:p> </o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm 0cm 0cm 36pt;">what I find intolerable is that, in a basic matter affecting human behaviour, conduct which is permissible in one part of the United Kingdom should be liable to draconian penalties in another part. That is something which, as a matter of principle, I do not think can ever be justified.<o:p></o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><o:p> </o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;">The Lords agreed to approve the Order without division.<o:p></o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><o:p> </o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><b>The legal effect of the Order<o:p></o:p></b></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><o:p> </o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;">In essence, the Order decriminalized homosexual acts – acts of “<a href="https://www.legislation.gov.uk/ukpga/Vict/24-25/100/section/61/enacted" style="color: #954f72;">buggery</a>” and “<a href="https://www.parliament.uk/about/living-heritage/transformingsociety/private-lives/relationships/collections1/sexual-offences-act-1967/1885-labouchere-amendment/" style="color: #954f72;">gross indecency</a>” between men – in line with the then law of England and Wales.<o:p></o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><o:p> </o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;">A homosexual act ceased to be a criminal offence if it was done “in private” – which did not include acts committed when more than two persons took part or were present, or acts committed in a public lavatory – between men who consented and had attained the age of 21 years. The then “age of consent” for different-sex sexual acts (other than buggery) and female same-sex sexual acts was 17 years. <o:p></o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><o:p> </o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;">The Order contained the same restrictions on consensual homosexual acts committed by adults that were then in force in England and Wales. These included provisions enabling such homosexual acts to remain offences under service (armed forces) law in force at the time, and for such homosexual acts to remain an offence if done on a merchant ship by members of crew. <o:p></o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><o:p> </o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;">The Order created the offence of “procuring others to commit homosexual acts”, which made it an offence for a man to procure another man to commit with a third man an act of buggery, even when the act of buggery would not in itself be an offence. <o:p></o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><o:p> </o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;">And the Order altered the punishments for certain homosexual acts and, in some cases, increased the maximum punishment. <o:p></o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><o:p> </o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><b>The Order today<o:p></o:p></b></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><o:p> </o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;">At the time it was being approved by Parliament, <a href="https://hansard.parliament.uk/commons/1982-10-25/debates/470d7193-cc4e-4f06-8277-bb4d81b77321/NorthernIreland(HomosexualOffences)" style="color: #954f72;">Leo Abse</a> commented on the “absurdities” of the Order:<o:p></o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><o:p> </o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm 0cm 0cm 36pt;">How absurd it is to say that the age of consent must be 21. How absurd it is that we should pass an order under which a ménage à trois can take place between a man and women but be outlawed when all men are involved. How absurd it is that the law should say that a man on a merchant ship can have a relationship with a passenger but that he cannot have such a relationship with a fellow sailor without an offence being committed.<o:p></o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><o:p> </o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;">However, whilst the Order represented only partial reform of the law relating to homosexual acts it set in motion a process of legal reform that has continued to the present day.<o:p></o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><o:p> </o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;">Since it was made, the Order has been amended and revoked many times by Parliament over the course of 40 years of law reform. <o:p></o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><o:p> </o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;">For example, the <a href="https://www.legislation.gov.uk/ukpga/1994/33/part/XI/crossheading/homosexuality/enacted" style="color: #954f72;">Criminal Justice and Public Order Act 1994</a> amended the Order to lower the “age of consent” for homosexual acts from 21 to 18 years, and revoked the restriction on homosexual acts in the armed forces and on merchant ships. <o:p></o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><o:p> </o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;">The <a href="https://www.legislation.gov.uk/ukpga/2000/44/section/1/enacted" style="color: #954f72;">Sexual Offences (Amendment) Act 2000</a> further amended the Order to create an <a href="https://www.openlynews.com/i/?id=ecbed8d5-1038-4c6d-91ec-a54251c96a20" style="color: #954f72;">equal “age of consent”</a> of 17 years (later reduced to 16 years). <o:p></o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><o:p> </o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;">Several provisions in the Order were revoked by the <a href="https://www.legislation.gov.uk/ukpga/2003/42/schedule/7" style="color: #954f72;">Sexual Offences Act 2003</a> as part of a package of law reform that led to the abolition of the offences of buggery and gross indecency. <o:p></o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><o:p> </o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;">Only one substantive offence in the Order remains in force which is the offence of “<a href="https://www.legislation.gov.uk/nisi/1982/1536/article/9" style="color: #954f72;">premises resorted to for homosexual practices</a>”, and the Order continues to make provision for premises to be treated as a brothel “if people resort to it for the purpose of lewd homosexual practices”. <o:p></o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><o:p> </o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><b>Disregards and pardons<o:p></o:p></b></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><o:p> </o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;">Parliament has recently taken several steps to address the wrongs done to people in Northern Ireland who were convicted or cautioned under now abolished homophobic laws.</p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><br /></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;">The Policing and Crime Act 2017 enabled individuals convicted of, or cautioned for, certain abolished homosexual offences to apply to have a conviction or caution <a href="https://www.legislation.gov.uk/ukpga/2017/3/section/168/enacted" style="color: #954f72;">disregarded</a> and, if successful, to be <a href="https://www.legislation.gov.uk/ukpga/2017/3/section/170/enacted" style="color: #954f72;">pardoned</a>.<o:p></o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><o:p> </o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><a href="https://www.legislation.gov.uk/ukpga/2017/3/section/169/enacted" style="color: #954f72;">Posthumous pardons</a> have also been granted to those convicted of, or cautioned for, certain abolished homosexual offences, under certain conditions, extending back to 1634. <o:p></o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><o:p> </o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;">The <a href="https://www.legislation.gov.uk/ukpga/2022/32/part/12" style="color: #954f72;">Police, Crime, Sentencing and Courts Act 2022</a> ensures that disregards and pardons will be available to members of the armed forces who were convicted under service law for consensual same-sex sexual acts that would not be an offence today. <o:p></o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><br /></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><o:p> </o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><o:p> </o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><o:p> </o:p></p><p class="MsoNormal" style="font-family: Calibri, sans-serif; margin: 0cm;"><o:p> </o:p></p>Paul Johnsonhttp://www.blogger.com/profile/03461850697230434763noreply@blogger.com0tag:blogger.com,1999:blog-7100925932021210247.post-21222642418481777092022-10-18T21:43:00.001+01:002022-10-18T21:43:13.385+01:00LGBT People, the Council of Europe and the European Court of Human Rights<p> </p><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiKZdjlF5TWUgExjHKSEH4qhc0kyrKi4gWs1DYXN57tfDpDoo8gpwroXQBZr5s4pEdck9IDQgY82v-vNqwcsE5JhAbbw_I8na1KYSYWT0FtnKwqTcIIv3FkL7JjU-VDJ1TC-VzN-h3hSymQaNF9UbvOlhD6Xdx57jtHYmb_C5U4Vpx_qK_8LT97eXjJ0g/s800/shutterstock_1400020055-800x450.jpeg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="450" data-original-width="800" height="360" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiKZdjlF5TWUgExjHKSEH4qhc0kyrKi4gWs1DYXN57tfDpDoo8gpwroXQBZr5s4pEdck9IDQgY82v-vNqwcsE5JhAbbw_I8na1KYSYWT0FtnKwqTcIIv3FkL7JjU-VDJ1TC-VzN-h3hSymQaNF9UbvOlhD6Xdx57jtHYmb_C5U4Vpx_qK_8LT97eXjJ0g/w640-h360/shutterstock_1400020055-800x450.jpeg" width="640" /></a></div><br /><span style="font-family: arial;">I am really pleased to make available an updated version of my chapter<i> LGBT People, the Council of Europe and the European Court of Human Rights.</i><br /><br />The chapter aims to provide a comprehensive but condensed assessment of the historical development and current state of human rights protection offered to LGBT people by the Council of Europe and, importantly, identify the gaps that currently exist in that protection. </span><div><span style="font-family: arial;"><br />The chapter 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.</span></div><div><span style="font-family: arial;"><br />This is an uncorrected draft of a chapter that will appear in the <i>Handbook on LGBTIQ Law</i> edited by <a href="https://www.unil.ch/llm/en/home/menuinst/faculty/teaching-staff/professor-andreas-r-ziegler.html">Prof. Andreas Ziegler</a> (University of Lausanne) et al. to be published by Oxford University Press.<br /><br />The chapter can be found here:<br /><br /><a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2927098">https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2927098</a></span></div>Paul Johnsonhttp://www.blogger.com/profile/03461850697230434763noreply@blogger.com0tag:blogger.com,1999:blog-7100925932021210247.post-43868945193213906462022-03-29T12:25:00.000+01:002022-03-29T12:25:12.119+01:00Refusal to recognise a legal relationship between a child and the biological mother’s ex-partner: no violation of Article 8 ECHR<p></p><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiRtd1Wk5u39hnM0TO_wz1h5KfVrGI2p4dwino6jfseHvajSRc_LZn9AUim7lfULvBx1iTp4_1Us2c1Xt2mY3YiIR6UAyquOtbkQh-3BXxxf3TZ4B5GB4L4vVK29THWmWwW4U-iWJCq1ujGkCN4PSEo111KoPnIEjfrhqS95kVIhIL0Y2Jx75eI25VkEw/s1200/Flag_of_France.svg.png" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="800" data-original-width="1200" height="266" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiRtd1Wk5u39hnM0TO_wz1h5KfVrGI2p4dwino6jfseHvajSRc_LZn9AUim7lfULvBx1iTp4_1Us2c1Xt2mY3YiIR6UAyquOtbkQh-3BXxxf3TZ4B5GB4L4vVK29THWmWwW4U-iWJCq1ujGkCN4PSEo111KoPnIEjfrhqS95kVIhIL0Y2Jx75eI25VkEw/w400-h266/Flag_of_France.svg.png" width="400" /></a></div><span style="font-family: arial;"><p>The Fifth Section of the European Court of Human Rights has issued its judgment in <a href="https://hudoc.echr.coe.int/eng?i=001-216706"><i>C.E. and Others v France</i></a> holding unanimously that there has been no violation of Article 8 (right to respect for private and family life) of the ECHR. </p></span><p></p><p><span style="font-family: arial;">The judgment concerns two cases. </span></p><p><span style="font-family: arial;">The first case relates to the rejection by the French domestic courts of an application for full adoption of a child, made by the biological mother’s former partner. </span></p><p><span style="font-family: arial;">The second case concerns the French domestic courts’ refusal to issue a document attesting to a matter of common knowledge ("acte de notoriété") recognising a legal parent-child relationship, on the basis of de facto enjoyment of status ("possession d’état"), between a child and the biological mother’s former partner.</span></p><p><span style="font-family: arial;">The judgment is only available in French, but a <a href="https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22homosex*%22],%22sort%22:[%22kpdate%20Descending%22],%22display%22:[2],%22itemid%22:[%22003-7293450-9940958%22]}">Press Release</a> of the Court summarises the judgment. </span></p>Paul Johnsonhttp://www.blogger.com/profile/03461850697230434763noreply@blogger.com0tag:blogger.com,1999:blog-7100925932021210247.post-59778684547467391462022-02-13T21:29:00.004+00:002022-02-13T21:29:51.614+00:00European Court of Human Rights rejects complaint by lesbian human rights group in Croatia <p></p><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/a/AVvXsEjUBnsGjsWcs4q7IJWW4040fvx5j5PtzLZqNxiKOdlYLE9o2uJxpbEtG9iwbvXYZE_OXEsWE22uqGMIr-_BXT_s9xeTsYL4W0lPBRB01shX4Cz4owIBBN4fKlJXZ73W2qSSS66vpACS03Kg_zKdyOx98px0aqtKh5M77GxLB53vOmzab4tCNmHVrsY7Kg=s600" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="600" data-original-width="600" height="320" src="https://blogger.googleusercontent.com/img/a/AVvXsEjUBnsGjsWcs4q7IJWW4040fvx5j5PtzLZqNxiKOdlYLE9o2uJxpbEtG9iwbvXYZE_OXEsWE22uqGMIr-_BXT_s9xeTsYL4W0lPBRB01shX4Cz4owIBBN4fKlJXZ73W2qSSS66vpACS03Kg_zKdyOx98px0aqtKh5M77GxLB53vOmzab4tCNmHVrsY7Kg=s320" width="320" /></a></div><span style="font-family: arial;"><span class="s68F5EAEF" style="box-sizing: border-box; text-align: justify; text-indent: 18.933332443237305px;">The First Section of the European Court of Human Rights, sitting </span><span class="s68F5EAEF" style="box-sizing: border-box; text-align: justify; text-indent: 18.933332443237305px;">as a Committee of three judges, has declared the complaints in </span><span style="background-color: white; text-align: center;"><i><a href="https://hudoc.echr.coe.int/eng?i=001-215606">Vlado Đurkan and Others v Croatia</a></i> inadmissible. All of the</span><span style="background-color: white; text-align: justify; text-indent: 18.933332443237305px;"> applications concerned the applicants’ right of access to the <a href="http://www.vsrh.hr/easyweb.asp?pcpid=39">Supreme Court of Croatia</a> in discrimination-related cases. </span></span><p></p><p><span style="font-family: arial;"><span style="background-color: white; text-align: justify; text-indent: 18.933332443237305px;">One of the applicants was </span><span class="s68F5EAEF" style="box-sizing: border-box;"><a href="https://www.kontra.hr/en/">Lezbijska grupa Kontra</a>, </span><span style="background-color: white; caret-color: rgba(0, 0, 0, 0.5);">a feminist non-governmental organization that promotes the human rights of lesbians.</span></span></p><p><span style="font-family: arial;"><b><span style="text-align: justify; text-indent: 14.2pt;">The facts relating to </span><span style="background-color: white;">Lezbijska grupa Kontra</span></b></span></p><p><span style="font-family: arial;"><span style="background-color: white;">Lezbijska grupa Kontra </span><span style="text-align: justify; text-indent: 14.2pt;">lodged a class action against a religion teacher of an elementary school because she had allegedly told the children during class that</span><span style="text-align: justify; text-indent: 14.2pt;"> </span>homosexuality <span style="text-align: justify; text-indent: 14.2pt;">was “an illness”. </span></span></p><p><span style="font-family: arial;"><span style="text-align: justify; text-indent: 14.2pt;">On 6 April 2016, the Supreme Court declared </span><span style="background-color: white;">Lezbijska grupa Kontra's </span><span style="text-align: justify; text-indent: 14.2pt;">appeal on points of law inadmissible for the failure to meet the relevant statutory requirements for lodging an “extraordinary” appeal on points of law.</span></span></p><p><b style="font-family: arial; text-align: justify; text-indent: 18.933332443237305px;">Croatian law</b></p><p><span style="text-align: justify; text-indent: 14.2pt;"><span style="font-family: arial;">Section 23 of the Prevention of Discrimination Act provides that an appeal on points of law with the Supreme Court shall be allowed in all cases concerning allegations of discrimination.</span></span></p><p><span class="s68F5EAEF" style="box-sizing: border-box; text-align: justify; text-indent: 14.2pt;"><span style="font-family: arial;">Under the Civil Procedure Act (“the CPA”) in force at the material time, parties could lodge an appeal on points of law with the Supreme Court in very limited circumstances, such as in certain types of employment disputes, or if the value of the subject-matter in dispute reached a certain threshold (so-called “ordinary” appeal on points of law under section 382(1) of the CPA).</span></span></p><p><span class="s68F5EAEF" style="box-sizing: border-box; text-align: justify; text-indent: 14.2pt;"><span style="font-family: arial;">In all other cases, parties could lodge a so-called “extraordinary” appeal on points of law only if they persuaded the Supreme Court that their case raised a point of substantive or procedural law which was important for the uniform application of the law (section 382(2) of the CPA). In the latter situation, the parties were expected to formulate specific questions and explain why the point raised in their case was important for ensuring the uniform application of the law.</span></span></p><p><span style="text-align: justify; text-indent: 14.2pt;"><span style="font-family: arial;"><b>Complaints to the Court</b></span></span></p><span style="font-family: arial;">Lezbijska grupa Kontra complained, under Article 6 § 1 of the Convention, about the unjustified restriction of their right of access to the Supreme Court, maintaining that their appeals on points of law should have been treated as “ordinary” and therefore not declared inadmissible.</span><p><span class="s68F5EAEF" style="box-sizing: border-box;"><span style="font-family: arial;"><span class="s68F5EAEF" style="box-sizing: border-box; text-align: justify; text-indent: 14.2pt;"><span style="background-color: white; text-align: left;">Lezbijska grupa Kontra</span> also complained, under Article 6 § 1 taken alone and in conjunction with Article 14 of the Convention, about the excessive length and the unfairness of the domestic proceedings, including the lack of a public hearing and the failure to hear witnesses.</span> </span></span></p><p><span style="background-color: white; text-align: justify; text-indent: 18.933332443237305px;"><span style="font-family: arial;"><b>The Court's decision</b></span></span></p><p><span style="font-family: arial;"><span class="s68F5EAEF" style="box-sizing: border-box; text-align: justify; text-indent: 14.2pt;">In respect of all of the applications, the Court reiterated that it is in the first place for the national authorities, and notably the courts, to interpret and apply the domestic law. This applies in particular to the interpretation by courts of rules of a procedural nature. The Court’s role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention</span><span class="s68F5EAEF" style="box-sizing: border-box; text-align: justify; text-indent: 14.2pt;">.</span></span></p><p><span style="font-family: arial;"><span class="s68F5EAEF" style="box-sizing: border-box; text-align: justify; text-indent: 14.2pt;">The Court further reiterated that the manner in which Article</span><span class="s68F5EAEF" style="box-sizing: border-box; text-align: justify; text-indent: 14.2pt;"> </span><span class="s68F5EAEF" style="box-sizing: border-box; text-align: justify; text-indent: 14.2pt;">6 §</span><span class="s68F5EAEF" style="box-sizing: border-box; text-align: justify; text-indent: 14.2pt;"> </span><span class="s68F5EAEF" style="box-sizing: border-box; text-align: justify; text-indent: 14.2pt;">1 applies to courts of appeal or of cassation depends on the special features of the proceedings concerned and that the conditions of admissibility of an appeal on points of law may be stricter than for an ordinary appeal</span><span class="s68F5EAEF" style="box-sizing: border-box; text-align: justify; text-indent: 14.2pt;">.</span></span></p><p><span style="font-family: arial;"><span class="s68F5EAEF" style="box-sizing: border-box; text-align: justify; text-indent: 14.2pt;">Therefore, in order to satisfy itself that the very essence of the applicants’ right of access to court was not impaired, the Court stated that it must examine whether the Supreme Court’s decisions to declare their appeals on points of law inadmissible could be regarded as "foreseeable" having regard to the relevant legislation and the case-law at the material time</span><span class="s68F5EAEF" style="box-sizing: border-box; text-align: justify; text-indent: 14.2pt;">.</span></span></p><span style="font-family: arial;">The Court analysed existing Croatian law and the practice of the Supreme Court, as well as noting that the applicants were represented by qualified attorneys, and concluded that any restriction of the applicants’ access to the Supreme Court had been foreseeable.<br /><br />The Court also noted that the situation complained of no longer obtains, because of subsequent developments in legislation and Supreme Court practice. <br /><br />On this basis, the Court declared the complaint under Article 6 § 1 of the Convention manifestly ill-founded and rejected it in accordance with Article 35 §§ 3(a) and 4 of the Convention.<br /><br />In respect of the complaint under Article 6 § 1 taken alone and in conjunction with Article 14 of the Convention the Court stated that it did not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols. As such, the Court rejected this part of the application in accordance with Article 35 § 4 of the Convention.</span><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;"><b>Further reading<br /></b></span><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">For a background to this case, see an article published in 2016 in </span><a href="https://www-vecernji-hr.translate.goog/vijesti/kontra-podnijela-tuzbu-ustavnom-sudu-zbog-navodnih-tvrdnji-vjerouciteljice-da-je-homoseksualnost-bolest-1124523?_x_tr_sl=hr&_x_tr_tl=en&_x_tr_hl=en&_x_tr_pto=wapp" style="font-family: arial;">Večernji list </a><span style="font-family: arial;">(in Croatian, translated into English by Google Translate).</span></div></div>Paul Johnsonhttp://www.blogger.com/profile/03461850697230434763noreply@blogger.com0tag:blogger.com,1999:blog-7100925932021210247.post-86730852200825531642022-01-07T07:41:00.002+00:002022-01-07T17:01:35.826+00:00The "gay cake" case - guest post on Lee v the UK<p><span style="font-family: arial;"></span></p><div class="separator" style="clear: both; text-align: center;"><span style="font-family: arial;"><a href="https://blogger.googleusercontent.com/img/a/AVvXsEjfXMbnxLHFEmlzi3LvKSX0kx5sKPO4_moieQk9HpB-5vODSEiCtQIkWVwV7_QbvJ53ad4MoKVjH8Sh4udwu2Qw2J-jY8VO_cVIiUKqAStHl1OINkQRGJOumpDkzmZ6wSFBL3ntg-ZksYebg1SnB3hiFuuyWXzaJEFUP89Opx8yawaa2kVbnnq5W55C2A=s621" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="350" data-original-width="621" height="225" src="https://blogger.googleusercontent.com/img/a/AVvXsEjfXMbnxLHFEmlzi3LvKSX0kx5sKPO4_moieQk9HpB-5vODSEiCtQIkWVwV7_QbvJ53ad4MoKVjH8Sh4udwu2Qw2J-jY8VO_cVIiUKqAStHl1OINkQRGJOumpDkzmZ6wSFBL3ntg-ZksYebg1SnB3hiFuuyWXzaJEFUP89Opx8yawaa2kVbnnq5W55C2A=w400-h225" width="400" /></a></span></div><b style="font-family: arial;"><p><b>Lee v the United Kingdom - guest post by Dr. <a href="https://www.york.ac.uk/sociology/our-staff/academic/silvia-falcetta/">Silvia Falcetta</a>, University of York</b></p></b><p></p><p class="MsoNormal" style="line-height: normal; margin: 0cm 0cm 8pt;"><span style="font-family: arial;">The Fourth Section of the European Court of Human Rights has published its decision in the case of <a href="https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22lee%20v%20the%20united%20kingdom%22],%22itemid%22:[%22001-214966%22]}" style="color: #954f72;"><i>Lee v the United Kingdom</i></a>.</span></p><p class="MsoNormal" style="line-height: normal; margin: 0cm 0cm 8pt;"><span style="text-align: justify;"><span style="font-family: arial;">This case concerns the refusal of a bakery, the</span></span><span style="font-family: arial;"><span style="text-align: justify;"> </span>Ashers Baking Company Limited<span style="text-align: justify;">, and its Christian owners to provide the applicant with a cake with the words ‘Support Gay Marriage’ iced on it.</span></span></p><p class="MsoNormal" style="line-height: normal; margin: 0cm 0cm 8pt;"><span style="font-family: arial; text-align: justify;">The Court declared the application inadmissible by a majority on the grounds of non-exhaustion of domestic remedies.</span></p><p class="MsoNormal" style="line-height: normal; margin: 0cm 0cm 8pt;"><b><span style="font-family: arial;">Facts of the case <o:p></o:p></span></b></p><p class="MsoNormal" style="line-height: normal; margin: 0cm 0cm 8pt; text-align: justify;"><span style="font-family: arial;">In May 2014, the applicant, Mr Gareth Lee, decided to order a cake from a bakery, Ashers Baking Company Limited (‘Ashers’), with a picture of two popular characters from a children’s television show, the logo of 'QueerSpace' (an LGBTIQ organisation the applicant is associated with) and the words ‘Support Gay Marriage’. Mr Lee’s order was received without comment, he paid for and received a receipt for his purchase. However, a few days later he received a telephone call from Ashers in which they explained that they were a Christian business and that they should not have taken the order.<o:p></o:p></span></p><p class="MsoNormal" style="line-height: normal; margin: 0cm 0cm 8pt; text-align: justify;"><span style="font-family: arial;">With the support of the Equality Commission for Northern Ireland, Mr Lee brought an action in the County Court for breach of statutory duty in and about the provision of goods, facilities and services against Ashers, as a limited company, and its owners, Mr and Mrs McArthur (‘the McArthurs’). Mr Lee claimed that he had been discriminated against contrary to the provisions of The Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 (‘the 2006 Regulations’) and/or The Fair Employment and Treatment (Northern Ireland) Order 1998 (‘the 1998 Order’), which prohibit direct or indirect discrimination on grounds of sexual orientation, political opinion or religious beliefs.<o:p></o:p></span></p><p class="MsoNormal" style="line-height: normal; margin: 0cm 0cm 8pt; text-align: justify;"><i><span style="font-family: arial;">The County Court proceedings<o:p></o:p></span></i></p><p class="MsoNormal" style="line-height: normal; margin: 0cm 0cm 8pt; text-align: justify;"><span style="font-family: arial;">The County Court considered whether Mr Lee had been discriminated against on grounds of sexual orientation and/or political opinion. It concluded that the McArthurs had directly discriminated against Mr Lee on the grounds of ‘his sexual orientation’ (para 13) and on the grounds of his ‘religious belief or political opinion’ (para 14).<o:p></o:p></span></p><p class="MsoNormal" style="line-height: normal; margin: 0cm 0cm 8pt; text-align: justify;"><span style="font-family: arial;">In respect of the sexual orientation claim, the County Court accepted that the McArthurs’ deeply held religious beliefs were genuine, but it noted that Ashers was not a religious organisation, rather a commercial business run for profit. Whilst the 2006 Regulations provide some exceptions for religious organisations, Christian-owned businesses are excluded from such exceptions. As a consequence, the County Court concluded that the actions of the McArthurs could not be justified under the 2006 Regulations.<o:p></o:p></span></p><p class="MsoNormal" style="line-height: normal; margin: 0cm 0cm 8pt; text-align: justify;"><span style="font-family: arial;">In respect of the political beliefs claim, the County Court held that, in the context of the ongoing debate on same-sex marriage in Northern Ireland, Mr Lee’s support for same-sex marriage amounted to a political opinion. Thus, in refusing to fulfil Mr Lee’s order the McArthurs had directly discriminated against him in a way that was incompatible with the 1998 Order.<o:p></o:p></span></p><p class="MsoNormal" style="line-height: normal; margin: 0cm 0cm 8pt; text-align: justify;"><span style="font-family: arial;">The McArthurs invited the County Court to ‘read down the provisions of the 2006 Regulations and the 1998 Order in a manner which was compatible with their Convention rights’ under section 3 of the Human Rights Act or, if that was not possible, ‘to disapply the relevant provisions of the 2006 Regulations and the 1998 Order’ (para 15). In this respect, the County Court accepted that Article 9 of the Convention was engaged in this case, but it ultimately concluded that whilst the McArthurs ‘were entitled to hold their genuine and deeply held religious beliefs and to manifest them, they could not do so in the commercial sphere if this would be contrary to the rights of others’ which included Mr Lee’s right not to be discriminated against on the grounds of his sexual orientation (para 16). The County Court further held that the McArthurs had not been required to ‘support, promote or endorse’ Mr Lee’s views and it therefore concluded that Article 10 was not engaged in this case (para 18).<o:p></o:p></span></p><p class="MsoNormal" style="line-height: normal; margin: 0cm 0cm 8pt; text-align: justify;"><i><span style="font-family: arial;">The Court of Appeal proceedings<o:p></o:p></span></i></p><p class="MsoNormal" style="line-height: normal; margin: 0cm 0cm 8pt; text-align: justify;"><span style="font-family: arial;">The Court of Appeal confirmed the findings of the County Court and found that there had been associative direct discrimination against the applicant on the ground of sexual orientation (that is, the applicant had been discriminated against on the basis of his association with the gay and bisexual community). Moreover, the Court of Appeal agreed with the County Court that the McArthurs had not been in any way required to promote or support same-sex marriage by fulfilling Mr Lee’s order (para 22).<o:p></o:p></span></p><p class="MsoNormal" style="line-height: normal; margin: 0cm 0cm 8pt; text-align: justify;"><i><span style="font-family: arial;">The Supreme Court proceedings<o:p></o:p></span></i></p><p class="MsoNormal" style="line-height: normal; margin: 0cm 0cm 8pt; text-align: justify;"><span style="font-family: arial;">The UK Supreme Court (UKSC) disagreed with the lower courts, and it unanimously held that the defendants’ refusal to fulfil Mr Lee’s order did not constitute unlawful discrimination.<o:p></o:p></span></p><p class="MsoNormal" style="line-height: normal; margin: 0cm 0cm 8pt; text-align: justify;"><span style="font-family: arial;">In respect of the sexual orientation claim, the UKSC disagreed with the County Court, and it held that Ashers had cancelled the order not on the basis of Mr Lee’s actual or presumed sexual orientation, but because they oppose same-sex marriage. The UKSC further disputed the Court of Appeal’s finding that Ashers had cancelled the order because the applicant was likely to associate with the gay and bisexual community, of which the McArthurs disapproved. Indeed, the UKSC established that ‘[i]n a nutshell, [the McArthurs’] objection was to the message and not to any particular person or persons’ (para 27).<o:p></o:p></span></p><p class="MsoNormal" style="line-height: normal; margin: 0cm 0cm 8pt; text-align: justify;"><span style="font-family: arial;">The UKSC further determined that the McArthurs’ objection was to ‘being required to promote the message on the cake’ and ‘the less favourable treatment was afforded to the message not to the man’. Thus, it concluded that Ashers had not discriminated against Mr Lee because of the owners’ religious beliefs (para 30).<o:p></o:p></span></p><p class="MsoNormal" style="line-height: normal; margin: 0cm 0cm 8pt; text-align: justify;"><span style="font-family: arial;">In respect of the political beliefs claim, the UKSC did not exclude that Mr Lee may have been discriminated against on the basis of his political opinions. However, the UKSC went on to consider the McArthurs’ rights under Article 9 and Article 10 of the Convention upon the effect of the 1998 Order, and it found that the 1998 Order ‘should not be read or given effect in such a way as to compel providers of goods, facilities and services to express a message with which they disagree unless justification is shown for doing so’ (para 34). Since no justification had been shown for justifying the compelled speech, the UKSC held that there had been no unlawful discrimination and dismissed Mr Lee’s claim for breach of statutory duty.<o:p></o:p></span></p><p class="MsoNormal" style="line-height: normal; margin: 0cm 0cm 8pt; text-align: justify;"><span style="font-family: arial;">In conclusion, the UKSC allowed the defendants’ appeal and set aside the declarations and order for damages made by the County Court.</span></p><p class="MsoNormal" style="line-height: normal; margin: 0cm 0cm 8pt; text-align: justify;"><b style="text-align: left;"><span style="font-family: arial;">Complaints to the Court</span></b></p><p class="MsoNormal" style="line-height: normal; margin: 0cm 0cm 8pt; text-align: justify;"><span style="font-family: arial;">The applicant claimed that the decision of the UKSC to dismiss his claim for breach of statutory duty violated his rights under Article 8, Article 9, and Article 10, alone and taken in conjunction with Article 14 of the Convention.</span></p><p class="MsoNormal" style="line-height: normal; margin: 0cm 0cm 8pt; text-align: justify;"><b style="text-align: left;"><span style="font-family: arial;">The Court’s assessment</span></b></p><p class="MsoNormal" style="line-height: normal; margin: 0cm 0cm 8pt; text-align: justify;"><span style="font-family: arial;">The Court started by considering whether the applicant had exhausted all domestic remedies before lodging his application under the Convention.<o:p></o:p></span></p><p class="MsoNormal" style="line-height: normal; margin: 0cm 0cm 8pt; text-align: justify;"><span style="font-family: arial;">The Court noted that the applicant had formulated his claim with reference to the 2006 Regulations and the 1998 Order, without expressly invoking any of his Convention rights at any point in the domestic proceedings. In this respect, the Court reiterated the subsidiary nature of the Convention machinery and the general principle that any complaint presented before it ‘must have been aired, either explicitly or in substance, before the national courts’ (para 68). <a name="_Hlk92373689"><o:p></o:p></a></span></p><p class="MsoNormal" style="line-height: normal; margin: 0cm 0cm 8pt; text-align: justify;"><span style="font-family: arial;">The Court took note of the applicant’s argument that a) he had raised his Convention arguments ‘in substance’ in domestic proceedings, since the 2006 Regulations and the 1998 Order had been enacted to protect his rights under Articles 8, 9, 10 and 14 of the Convention; and b) that the violations complained of before the Court had ‘only crystallised with the handing down of the judgment of the Supreme Court’ (para 69). <o:p></o:p></span></p><p class="MsoNormal" style="line-height: normal; margin: 0cm 0cm 8pt; text-align: justify;"><span style="font-family: arial;">Nevertheless, the Court was not persuaded by these arguments for two key reasons.<o:p></o:p></span></p><p class="MsoNormal" style="line-height: normal; margin: 0cm 0cm 8pt; text-align: justify;"><span style="font-family: arial;">First, the Court held that the relevant provisions in the 2006 Regulations and the 1998 Order cannot be said to ‘protect consumers’ substantive rights under Articles 8, 9 or 10 of the Convention’ (para 70). The Court acknowledged that the 2006 Regulations and the 1998 Order had been enacted in order to protect the Convention rights of consumers, but it also noted that those provisions, unlike the Convention, protect consumers in a ‘very limited way’ and concern only discrimination in access to goods and services (para 70). On this basis, the Court denied that the applicant has raised his rights protected under Article 8, Article 9 and Article 10 in substance during the domestic proceedings.<o:p></o:p></span></p><p class="MsoNormal" style="line-height: normal; margin: 0cm 0cm 8pt; text-align: justify;"><span style="font-family: arial;">In respect of whether the applicant had invoked Article 8, Article 9 and Article 10 taken together with Article 14, the Court acknowledged that the applicant had raised the issue of whether he had been discriminated against on the basis of his sexual orientation and/or political beliefs in the domestic proceedings. However, the Court reiterated the ancillary nature of Article 14 and recalled that ‘there can be no room for its application unless the facts at issue fall within the ambit of one or more substantive Convention rights’ (para 72). The Court did not exclude that the facts of the case could fall within the ambit of Convention rights, but it ultimately held that by relying solely on domestic law the applicant had ‘deprived’ the domestic courts of the opportunity to consider themselves whether the facts of the case engaged his rights under Article 8, Article 9 and Article 10 before lodging his application with the Court (para 74).<o:p></o:p></span></p><p class="MsoNormal" style="line-height: normal; margin: 0cm 0cm 8pt; text-align: justify;"><span style="font-family: arial;">Second, the Court noted that domestic courts had been tasked with balancing the applicant’s rights under the 2006 Regulations and the 1998 Order against the McArthurs’ rights under Articles 9 and 10 of the Convention, but at no point had the domestic courts been tasked with balancing the applicant’s Convention rights against the McArthurs’ Convention rights. Notably, the Court compared the approach followed by the applicant throughout the domestic proceedings with that followed by the McArthurs and concluded that the applicant had not provided a ‘satisfactory explanation’ for not advancing his Convention rights before domestic courts (para 77). Unlike the applicant, the McArthurs had effectively relied on their Convention rights throughout the domestic proceedings and had asked the courts to either read down the provisions of the 2006 Regulations and the 1998 Order in a manner which was compatible with their Convention rights or, if that was not possible, to disapply the relevant provisions of the 2006 Regulations and the 1998 Order.<o:p></o:p></span></p><p class="MsoNormal" style="line-height: normal; margin: 0cm 0cm 8pt; text-align: justify;"><span style="font-family: arial;">On this basis the Court held that in cases where ‘the applicant is complaining that the domestic courts failed properly to balance his Convention rights against those of another private individual, who had expressly advanced his or her Convention rights throughout the domestic proceedings, it is axiomatic that the applicant’s Convention rights should also have been invoked expressly before the domestic courts’ and it concluded that ‘[i]n choosing not to rely on his Convention rights, the applicant deprived the domestic courts of the opportunity to consider both the applicability of Article 14 to his case and the substantive merits of the Convention complaints on which he now relies’ and he invited the Court to ‘usurp the role of the domestic courts by addressing these issues itself’ (para 77).<o:p></o:p></span></p><p class="MsoNormal" style="line-height: normal; margin: 0cm 0cm 8pt; text-align: justify;"><span style="font-family: arial;">In conclusion, the Court considered that the applicant has failed to exhaust domestic remedies in respect of his complaints under Articles 8, 9 and 10 of the Convention, read alone and in conjunction with Article 14.</span></p><p class="MsoNormal" style="line-height: normal; margin: 0cm 0cm 8pt; text-align: justify;"><b><span style="font-family: arial;">Two brief considerations</span></b></p><p class="MsoNormal" style="line-height: normal; margin: 0cm 0cm 8pt; text-align: justify;"><i><span style="font-family: arial;">A peculiar interpretation of the relationship between the Human Rights Act 1998 and the Convention<o:p></o:p></span></i></p><p class="MsoNormal" style="line-height: normal; margin: 0cm 0cm 8pt; text-align: justify;"><span style="font-family: arial;">This decision hands down a peculiar interpretation of the relationship between the Human Rights Act 1998 and the Convention, that no doubt will draw criticism and raise debate.<o:p></o:p></span></p><p class="MsoNormal" style="line-height: normal; margin: 0cm 0cm 8pt; text-align: justify;"><span style="font-family: arial;">According to the Court’s reasoning, when reading and giving effect to primary and subordinate legislation domestic courts seem required to take into account the Convention rights of the litigants only if the litigants themselves invoke those rights. <o:p></o:p></span></p><p class="MsoNormal" style="line-height: normal; margin: 0cm 0cm 8pt; text-align: justify;"><span style="font-family: arial;">When reading the Court’s decision, one may reasonably get the impression that under the Human Rights Act 1998 domestic courts are not allowed to consider litigants’ Convention rights <i>motu proprio.</i> However, section 3 of the Human Rights Act 1998 does not mention any such constraint and simply states ‘[s]o far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights’. <o:p></o:p></span></p><p class="MsoNormal" style="line-height: normal; margin: 0cm 0cm 8pt; text-align: justify;"><span style="font-family: arial;">Nothing in this provision indicates that considerations of the relationship between domestic legislation and the Convention are conditional on the arguments made by litigants. On the contrary, a plain reading of this provision suggests that, whenever it is possible to do so, domestic courts should read and give effect to primary and secondary legislation in a way that is compatible with the Convention of their own accord.<o:p></o:p></span></p><p class="MsoNormal" style="line-height: normal; margin: 0cm 0cm 8pt; text-align: justify;"><span style="font-family: arial;">As a consequence, it remains unclear why the Court assumed that the UKSC could not assess <i>motu proprio</i> whether domestic legislation had been interpreted in a way that adequately protected Mr Lee’s Convention rights.</span></p><p class="MsoNormal" style="line-height: normal; margin: 0cm 0cm 8pt; text-align: justify;"><i><span style="font-family: arial;">A cautious approach?</span></i></p><p class="MsoNormal" style="line-height: normal; margin: 0cm 0cm 8pt; text-align: justify;"><span style="font-family: arial;">This decision arguably signals the Court’s intention to maintain a cautious approach on complaints concerning a ‘clash’ between the right of individuals to freedom of religion and the right of LGBTIQ individuals to not be discriminated against in accessing goods, facilities, and services.<o:p></o:p></span></p><p class="MsoNormal" style="line-height: normal; margin: 0cm 0cm 8pt; text-align: justify;"><span style="font-family: arial;">Whilst not examining the merits of the applicant’s complaint, the Court acknowledged that a balancing exercise of the applicant’s Convention rights against the McArthurs’ Convention rights would be ‘a matter of great import and sensitivity to both LGBTIQ communities and to faith communities’, especially in the context of Norther Ireland where ‘there is a large and strong faith community, where the LGBTIQ community has endured a history of considerable discrimination and intimidation, and where conflict between the rights of these two communities has long been a feature of public debate’ (para 75). <o:p></o:p></span></p><p class="MsoNormal" style="line-height: normal; margin: 0cm 0cm 8pt; text-align: justify;"><span style="font-family: arial;">As a general principle, the Court held that similar disputes must be resolved ‘with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market’ (para 75). <o:p></o:p></span></p><p class="MsoNormal" style="line-height: normal; margin: 0cm 0cm 8pt; text-align: justify;"><span style="font-family: arial;">However, the Court also reiterated that in the light of the ‘heightened sensitivity of the balancing exercise in the particular national context’ the domestic courts would be better placed than the international judge to strike the balance between Mr Lee’s competing Convention rights and the McArthurs’ Convention rights (para 76).</span></p><p class="MsoNormal" style="line-height: normal; margin: 0cm 0cm 8pt; text-align: justify;"><span style="font-family: arial; text-align: left;">On this basis, it seems likely that, even if Mr Lee’s complaint had been declared admissible, the Court would have deferred to the margin of appreciation available to domestic authorities and confirmed the findings of the UKSC.</span></p>Paul Johnsonhttp://www.blogger.com/profile/03461850697230434763noreply@blogger.com0tag:blogger.com,1999:blog-7100925932021210247.post-30988382136655825962021-12-17T22:15:00.000+00:002021-12-17T22:15:24.736+00:00Failure to conduct an investigation into homophobic hate crime in Moldova violates the ECHR<p></p><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/a/AVvXsEgxX49WoGYytt8AuD2B1lBYr1Eq01UXq1UYp1UeZVQQu4GEI2RmCPulZvEFkqf0gnNuIAdpetYNh07s5SO2OWDFBlwLWOW9kUbDUfp6PTQh_GLJjLYWsexF9s8rwfYLyke-Wp8dLlmQ329ep3aZikx1DFo-bWd-qxFyXUmX8HTgLuN2UAYmLKJvOjNTtw=s1235" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="1235" data-original-width="1200" height="400" src="https://blogger.googleusercontent.com/img/a/AVvXsEgxX49WoGYytt8AuD2B1lBYr1Eq01UXq1UYp1UeZVQQu4GEI2RmCPulZvEFkqf0gnNuIAdpetYNh07s5SO2OWDFBlwLWOW9kUbDUfp6PTQh_GLJjLYWsexF9s8rwfYLyke-Wp8dLlmQ329ep3aZikx1DFo-bWd-qxFyXUmX8HTgLuN2UAYmLKJvOjNTtw=w389-h400" width="389" /></a></div><p style="font-family: arial;"><span style="font-family: arial;"><br /></span></p><span style="font-family: arial;">The Second Section of the European Court of Human Rights has issued its judgment in <i><a href="https://hudoc.echr.coe.int/eng?i=001-213896">Genderdoc-M and M.D. v the Republic of Moldova</a></i>.</span><p></p><p><span style="font-family: arial;">Genderdoc-M is an association that represents the interests of LGBT people in the Republic of Moldova (see a previous judgment of the Court concerning Genderdoc-M: <i><a href="https://hudoc.echr.coe.int/eng?i=001-111394">Genderdoc-M v Moldova</a></i>, 2012).</span></p><p><span style="font-family: arial;">M.D. is an individual born in 1998 and living in Bălți. </span></p><p><span style="font-family: arial;"><b>The facts</b></span></p><p><span style="font-family: arial;">The case relates to two separate issues:<br /><br /><i><b>1) An alleged criminal offence committed by M.</b></i></span></p><p><span style="font-family: arial;">In 2014 a District Court found that, in a public statement, M. had "engaged in hate speech and incitement to discrimination against homosexuals by calling on the public to prevent them from being employed in educational, medical and public food institutions and by falsely claiming that 92% of homosexuals were infected with HIV". </span></p><p><span style="font-family: arial;">The District Court ordered M. to retract the above-mentioned statements and to pay damages and costs to Genderdoc-M. </span></p><p><span style="font-family: arial;">M. gave a press conference in which he said that he would "apologise not to homosexuals, but to Christians, whom he had misinformed when he had claimed that 92% of homosexuals were infected with HIV. In fact, he declared, 95% of them were thus infected, adding that many of them were a danger to society".</span></p><p><span style="font-family: arial;">Genderdoc-M lodged a criminal complaint against M. </span></p><p><span style="font-family: arial;">The Prosecutor’s Office refused to start a criminal investigation, finding that M.’s actions did not constitute a criminal offence. </span></p><p><span style="font-family: arial;">Genderdoc-M appealed against that decision, and the appeal was rejected. All subsequent appeals were also rejected. </span></p><p><span style="font-family: arial;"><b><i>2) Ill-treatment suffered by M.D.</i></b></span></p><p><span style="font-family: arial;">In 2014, M.D. was physically and verbally abused in the street by a group of 12-14 minors, who called him gay. </span></p><p><span style="font-family: arial;">A video showing the abuse was posted on the internet. A criminal investigation was initiated into those events.</span></p><p><span style="font-family: arial;">Subsequently, A.P. approached M.D in the street and insulted him for being gay, saying that he knew him from the video on the internet. </span></p><p><span style="font-family: arial;">A.P. again approached M.D. three days later and this time beat up M.D. </span></p><p><span style="font-family: arial;">M.D. reported this attack to the police, stating that A.P. had “without any reason, hit him in the head seven times and kicked his body three times”, after which he had left. In a further statement to the police, M.D. added that A.P. had, on the first encounter, called him a “faggot” and a “paedophile”. </span></p><p><span style="font-family: arial;">The Prosecutor’s Office refused to start a criminal investigation, stating that A.P.’s actions did not amount to a criminal offence. The prosecutor found that A.P. had beaten up M.D. not because of his sexual orientation and, moreover, had not said anything on this occasion about his sexual orientation. </span></p><p><span style="font-family: arial; text-align: justify; text-indent: 18.933332443237305px;">Appeals against the decision of the prosecutor were unsuccessful. A key reason given by the domestic courts was that M.D. had </span><span style="background-color: white; text-align: justify; text-indent: 18.933332443237305px;"><span style="font-family: arial;">not raised the issue of discrimination at the time of the complaint.</span></span></p><p><span style="font-family: arial;"><b>Admissibility of the complaint by Genderdoc-M. </b></span></p><p><span style="font-family: arial;">Relying on Articles 10 and 14 of the Convention, Genderdoc-M complained of the lack of protection from the State authorities against the hate speech uttered by M. against members of the LGBT community, the interests of which they represented.</span></p><p><span style="font-family: arial;">The Court stated that, as an association, Genderdoc-M. could not claim, under Article 34 of the Convention (individual applications), to be a victim of the acts or omissions which affected the rights and freedoms of its individual members who can lodge complaints with the Court in their own name. </span></p><p><span style="font-family: arial;">On this basis, the Court declared inadmissible the complaint by Genderdoc-M.<br /><br /><b>Judgment on the complaint by M.D.</b></span></p><p><span style="font-family: arial;">M.D. complained under Articles 3, 8 and 14 about the authorities’ failure to investigate effectively and punish the violence against him which had been motivated by homophobia.</span></p><p><span style="font-family: arial;">The Court focused on Article 3 taken in conjunction with Article 14, and did not consider Articles 8 and 14 separately. </span></p><p><span style="font-family: arial;">The Court stated that, given the unprovoked assault including ten blows to various parts of his body, M.D. had suffered treatment that was degrading, even in the absence of any homophobic overtones, <span style="background-color: white; text-align: justify; text-indent: 18.933332443237305px;">the existence of which the authorities were required to investigate, </span>and Article 3 was applicable.</span></p><p><span style="font-family: arial;">In respect of M.D.'s complaint that the attack had not been appropriately investigated and relevant hate crime law not appropriately applied, the Court noted that in his initial complaint to the authorities M.D. "did not specifically mention discrimination or allege that the ill-treatment was the result of A.P.’s homophobic attitude" and that this was "one of the main reasons for which the courts confirmed the prosecutors’ decisions not to initiate a criminal investigation against A.P.". </span></p><p><span style="font-family: arial;">However, the Court stated that when he made his complaint, M.D. was "clearly still recovering from the assault, notably from concussion" and it "would be excessively formalistic for the authorities to base their entire investigation into a serious complaint about ill-treatment only on the first complaint". Moreover, M.D. had informed the authorities from the outset that he had been approached by A.P. three days earlier who had insulted him using swear words and, in a subsequent statement, M.D. had specified what kind of words those had been, namely “faggot” and “paedophile”. In addition, A.P. had identified M.D. from a video on the internet which clearly identified him as gay. </span></p><p><span style="font-family: arial;"><span style="text-align: justify; text-indent: 18.933332443237305px;">The Court stated that all of these facts "should have made it obvious to the authorities that [M.D.] was in fact complaining not only of the violence itself, but also of its underlying homophobic reasons" and it was "</span><span style="background-color: white; text-align: justify; text-indent: 18.933332443237305px;">difficult to understand the domestic courts’ reasoning to the effect that [M.D.] never complained of discrimination or alleged that the violence perpetrated against him had been motivated by hatred towards him" on the basis of his sexual </span><span style="text-align: justify; text-indent: 18.933332443237305px;">orientation.</span></span></p><p><span style="font-family: arial;">The Court concluded that the authorities "never seriously examined the possibility that [M.D.'s] ill-treatment had been a hate crime" and their "failure even to initiate a formal criminal investigation into the [...] allegations undermined from the start their ability to establish this crucial point".</span></p><p><span style="font-family: arial;">Because of this, the Court stated that the authorities fell short of their procedural obligation to investigate the attack on M.D., "with particular emphasis on unmasking any discriminatory motive for the violence". </span></p><p><span style="font-family: arial;">The Court stated that the "absence of such a meaningful investigation undermines public confidence in the State’s anti-discrimination policy".</span></p><p><span style="font-family: arial;">The Court held that there had, therefore, been a breach of the State’s positive obligation under Article 3 taken in conjunction with Article 14 of the Convention. </span></p><p><span style="font-family: arial;"><b>Brief comments</b></span></p><p><span style="font-family: arial;">In respect of the admissibility decision relating to the complaint by Genderdoc-M, the Court made clear that, as an association, it could not complain in its own name of the breach of the rights of its members and beneficiaries. As such, to pass the admissibility test, a complaint needed to be brought by an individual or individuals claiming to be the victim or victims of a violation. </span></p><p><span style="font-family: arial;">In respect of the judgment relating to the complaint by M.D., the Court reiterated that the interplay between Article 3 and Article 14 provides LGBT+ people with strong protection against ill-treatment. </span></p><p><span style="font-family: arial;">The Court's established position is that the authorities’ duty to prevent hate‑motivated violence on the part of private individuals, as well as to investigate the existence of a possible link between a discriminatory motive and an act of violence, can fall under the procedural aspect of Article 3. Moreover, this may also be seen to form part of the authorities’ positive responsibilities under Article 14 to secure the fundamental values enshrined in Article 3 without discrimination.</span></p><p><span style="font-family: arial;">In <i><a href="https://hudoc.echr.coe.int/eng?i=001-154400">Identoba and Others v Georgia</a></i> (2015) the Court established that when authorities fell short of their procedural obligation to investigate homophobic crime this meant that there had been a breach of the State’s positive obligations under Article 3 taken in conjunction with Article 14 of the Convention. In the case of M.D., the Court reiterated this position. Because the authorities fell short of their procedural obligation to investigate the attack on M.D. - an investigation that should have emphasised unmasking any discriminatory motive for the violence - there had been a breach of the positive obligations under Article 3 taken in conjunction with Article 14.</span></p><p><span style="font-family: arial;">An important feature of this case is that M.D. did not explicitly tell the police, at the first point that he reported the attack, that he believed the attack was motivated by homophobia. However, with the information that M.D. gave to the police in his initial and subsequent statements, the Court felt that it should have been "obvious" to the authorities that he was complaining about a homophobic motivated attack. As such, the Court's judgment sends a clear message that States are under a positive obligation to appropriately investigate the "obvious" factors that may indicate that a homophobic hate crime has been committed. As my colleague, Dr. Silvia Falcetta, commented to me, this </span><span style="background-color: white; caret-color: rgb(34, 34, 34); color: #222222;"><span style="font-family: arial;">arguably raises the threshold that national authorities must meet in order to demonstrate that they have fulfilled their obligations under Article 3 and Article 14 and, as a consequence, strengthens the protection against hate-motivated violence.</span></span></p><p><span style="font-family: arial;"><b>Further reading<br /></b><br />For a history of sexual orientation discrimination cases under Article 3 of the Convention, see: "<a href="https://pure.york.ac.uk/portal/en/publications/sexual-orientation-discrimination-and-article-3-of-the-european-convention-on-human-rights-developing-the-protection-of-sexual-minorities(2272db1f-5715-49d2-883a-4741732a52c4).html">Sexual Orientation Discrimination and Article 3 of the European Convention on Human Rights: Developing the Protection of Sexual Minorities</a>".</span></p><p><span style="background-color: white; text-align: justify; text-indent: 18.933332443237305px;"><span style="font-family: arial;"> </span></span></p>Paul Johnsonhttp://www.blogger.com/profile/03461850697230434763noreply@blogger.com0tag:blogger.com,1999:blog-7100925932021210247.post-16228089677926501292021-12-13T09:20:00.005+00:002021-12-16T22:46:50.104+00:00European Court of Human Rights declares inadmissible a case concerning children who were denied Polish citizenship on the grounds they were born via surrogacy and have same-sex parents<div><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/a/AVvXsEiv2pWpS88WqZqbmSSwNsCYYGGsZ3zz8_C2IimemAzVcwxHRbPB1OhZhFqeOl_vquwZ1sn5cSqdPHDqt82yZjmg_2F2KlGlxieg31pVByOI9BbrrezRtSCWc0zdCOLytP7Rx2gNSWh9RwNBm1FQdxGPV9xp8BN0rYOQNfXa0oxxcubs7pJT3jjxugC-sQ=s1600" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="1000" data-original-width="1600" height="402" src="https://blogger.googleusercontent.com/img/a/AVvXsEiv2pWpS88WqZqbmSSwNsCYYGGsZ3zz8_C2IimemAzVcwxHRbPB1OhZhFqeOl_vquwZ1sn5cSqdPHDqt82yZjmg_2F2KlGlxieg31pVByOI9BbrrezRtSCWc0zdCOLytP7Rx2gNSWh9RwNBm1FQdxGPV9xp8BN0rYOQNfXa0oxxcubs7pJT3jjxugC-sQ=w640-h402" width="640" /></a></div><br /><span style="font-family: arial;"><br /></span></div><span style="font-family: arial;"><div>The First Section of the European Court of Human Rights has issued its decision in <i><a href="https://hudoc.echr.coe.int/eng?i=001-214296">S.-H. v Poland</a></i>. </div></span><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">The case concerns the refusal to grant Polish nationality by descent to two children born through surrogacy in the USA to a same-sex couple residing in Israel, where the legal parent-child link is recognised in another jurisdiction.</span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">The Court unanimously declared the application inadmissible</span></div><div><span style="font-family: arial;"><b><br /></b></span></div><div><span style="font-family: arial;"><b>The applicants and their citizenship status</b></span><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">The applicants, <span style="background-color: white; text-indent: 18.933332443237305px;">Mr S. S.-H.</span> and <span style="background-color: white; text-indent: 18.933332443237305px;">Mr M. S.-H., </span>are twin brothers who were born in 2010 in the USA and live in Israel (hereinafter referred to as "the children"). </span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">The applicants’ parents are Mr S. and Mr H., a same-sex couple, residing in Israel with their children (hereinafter referred to as "the parents"). </span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">The children have dual Israeli and US nationality. </span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">The parents both have Israeli citizenship. In addition, one parent, Mr S., has Polish citizenship. <br /><br /><b>The key issue</b></span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">The children were born as a result of the parents entering into a gestational surrogacy agreement with K.C. The children were conceived via assisted reproduction technology using Mr S.’s gametes and an egg from a donor.</span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">In September 2010, the Superior Court of California declared Mr S. and Mr H. the natural, joint and equal parents of the twin babies. It also declared Mr S. the biological father of the twins.</span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">Following the birth of the children, Mr S., the biological father (who is a Polish citizen), applied on behalf of the children for confirmation of their Polish citizenship. </span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">At the material time, Polish law stated, inter alia, that "The child of parents of whom one is a Polish citizen and the other a citizen of another State acquires Polish citizenship by birth..."</span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">In various domestic proceedings in the Polish courts, the children were refused Polish citizenship because:</span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">a) in a first-instance decision it was determined, inter alia, that the Polish legal system did not allow for the concept of surrogacy and, therefore, the children's parents were not, according to Polish law, their parents. <br /><br />b) in a second-instance decision it was determined, inter alia, that the children's original birth certificates had no evidentiary value, even though they indicated Mr S. and Mr H. as their parents, since these documents contravened the principles of the Polish legal order.<br /><br />c) the Warsaw Regional Administrative Court held that, inter alia, under the relevant domestic provisions, the children's mother was K.C. and the Polish legal system did not recognise surrogacy. <br /><br />d) The Supreme Administrative Court held, inter alia, that for the determination of Polish citizenship, a child who had one Polish parent and one foreign parent acquired Polish citizenship at birth. However, for the purposes of Polish law, a child’s mother was the woman who had given birth to that child and, if the child was born during her marriage, there was a legal presumption that the child’s father was the mother’s husband. This court further held that surrogacy agreements were not recognised in the Polish legal system as they "ran counter to the principles of community life" and that the Polish legal system had not attributed parental rights to “so called partner relationships”. For that reason, this court held that accepting the judgment of the Superior Court of California would have been against "public policy principles". As such, the children's birth certificates could not have any legal effect because:</span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">"These certificates indicated Mr S. as the [children's] father and Mr H. as the [children's] mother/parent. Since the certificates indicated the two men as parents, and by that confirmed the surrogacy agreement, they ran counter to the basic principles of the Polish legal system. Mr S. could not therefore be considered to be the </span><span style="font-family: arial;">[children's]</span><span style="font-family: arial;"> parent." </span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;"><b>Complaints to the European Court of Human Rights</b></span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">The children complained under Article 8 taken alone and in conjunction with Article 14 of the Convention that the domestic authorities had not recognised their legal parent-child relationship with their biological father and had based the decisions not to confirm their Polish citizenship on considerations relating to their parents’ sexual orientation.</span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">Under Article 8 the children argued, inter alia, that the circumstances of the case fell within the ambit of “private and family life”. In their view, they had been denied Polish citizenship solely on discriminatory grounds, namely the sexual orientation of their parents, one of whom was their biological father. They noted that the domestic authorities had relied on the fact that their birth certificates indicated two men as their parents and that they had been conceived in execution of a surrogacy arrangement.</span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">Under Article 14 taken in conjunction with Article 8 the children complained that they had been discriminated against in the enjoyment of their right to respect for private and family life on account of their status as children of same-sex parents.</span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;"><b>Decision of the Court</b></span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">The Court employed a "consequence-based approach" to determine whether the refusal to recognise the legal parent-child relationship with the children’s biological father, and the ensuing refusal to confirm the acquisition of Polish citizenship by descent, affected the children's private life in a way that made Article 8 applicable.</span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">This "consequence-based approach" has been used by the Court in, for example, the context of professional and business activities to deal with situations when "the reasons for imposing a measure affecting an individual’s professional life are not linked to the individual’s private life" but "an issue under Article 8 may still arise in so far as the impugned measure has or may have serious negative effects on the individual’s private life" (<i><a href="https://hudoc.echr.coe.int/eng?i=001-186216">Denisov v Ukraine</a></i>, 2018, § 107). </span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">The "consequence-based approach" is in contrast to the "reason-based approach" which is employed "when factors relating to private life were regarded as qualifying criteria for the function in question and when the impugned measure was based on reasons encroaching upon the individual’s freedom of choice in the sphere of private life" (<i>Denisov v Ukraine</i>, 2018, § 103).</span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">In considering it appropriate to employ a "consequence-based approach" the Court set about considering whether the impugned decisions of the Polish courts had "sufficiently serious negative consequences" for the children. In this respect, the Court stated that it was for the children to show convincingly that the threshold was attained in their case and, in this respect, relied on the principle that:</span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">"The applicant has to present evidence substantiating consequences of the impugned measure. The Court will only accept that Article 8 is applicable where these consequences are very serious and affect his or her private life to a very significant degree" (<i>Denisov v Ukraine</i>, 2018, § 116).</span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">On this basis, the Court determined, inter alia, that:</span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">- the Court had not been provided with any specific information or details about the family’s plans to relocate to Poland and it did not appear that such a move was imminent;<br /><br />- the children had never lived in Poland and, since birth, had been living in Israel as a family unit with their parents;<br /><br />- the children already had dual US/Israeli citizenship and the Polish domestic decisions did not render them stateless;<br /><br />- the children had not alerted the Court to any negative consequences or practical difficulties which they might encounter in their chosen country of residence, resulting from the Polish courts’ refusal to confirm the acquisition of Polish citizenship;<br /><br />- the children can benefit, in the State where they live, from the legal parent‑child relationship with their biological father where the recognition of that relationship is not put into doubt;<br /><br />- whilst the Polish authorities refused to give effect to the foreign birth certificates establishing the legal parent-child relationship between the children and their biological father, this link is recognised in the country where the family resides.</span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">Although the Court stated it was "mindful that the domestic decisions have clearly had some repercussions on the applicants’ personal identity" it concluded that it "does not appear that the negative effect which the impugned decisions had on the applicants’ private life crossed the threshold of seriousness for an issue to be raised under Article 8 of the Convention". </span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">In respect of the family life limb of Article 8, the Court stated that the arguments advanced by the children were in principle the same as those submitted in relation to the complaint concerning respect for their private life. The Court stated that it was "unable to find any factual basis for concluding that there has been an interference with the right to respect for family life in the present case".</span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">The Court's ultimate conclusion was:</span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">"[...] it does not appear that so far the family has had to overcome any practical obstacles on account of the Polish authorities’ decisions [...] Most importantly, since the applicants’ family resides in Israel, the inability to obtain confirmation of acquisition of Polish citizenship has not prevented them from enjoying, in the country where they live, their right to respect for their family life. The applicants and their intended parents all have Israeli citizenship, and their legal relationship is recognised in Israel. It does not appear that the fact that the applicants are not recognised as Polish citizens would have any bearing on their family life, for example in the event of their intended parents’ death or separation. Thus, any potential risk to their family life should be regarded in this particular case as purely speculative and hypothetical and could only possibly materialise if they took up residence in Poland".</span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">On this basis, the Court found that Article 8 of the Convention was not applicable. </span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">In light of this, the Court also rejected the complaint under Article 14 taken in conjunction with Article 8 of the Convention, since Article 14 can only apply if the facts at issue fall within the ambit of one or more of the other provisions of the Convention.</span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">Consequently, the Court declared the application inadmissible.</span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;"><b>Short commentary on the Court's decision</b></span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">The application of a "consequence-based approach" in this case is extremely surprising. Given the facts of the case, which focus on the legal recognition of parent-child relationships, it would have been more obvious for the Court to have declared the measures complained of to fall within the ambit of Article 8 of the Convention and, on this basis, to have proceeded to carry out the standard Article 8 "tests" to determine whether a violation of this Article had occurred (in essence, whether the decisions of the Polish authorities were in accordance with law, pursued a legitimate aim, and were necessary in a democratic society). It is concerning that the Court relied on the </span><span style="font-family: arial;">"consequence-based approach", which was developed for dealing with situations when a measure imposed is </span><span style="font-family: arial;">not linked to the individual’s private life but produces an effect on it, when, in this case, the impugned measures are so obviously linked to private (and family) life. </span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">In adopting the "consequence-based approach" the Court, in essence, started from the position that the complaint would only be deemed to fall within the ambit of Article 8 if the applicants could prove that the decision of the Polish authorities had produced very serious consequences. One could argue that the outcome of the measures complained of - citizenship denied solely on the grounds that the children were born via surrogacy and had same-sex parents - was already a very serious consequence and, as such, brought the complaint within the ambit of Article 8 and placed the emphasis on the Polish government to justify the decisions taken by its authorities. However, under the "consequence-based approach" it was the applicants who were required to convince the Court of the negative consequences of the decisions of the Polish authorities and, moreover, to show that these reached a certain severity. In this sense, the refusal to recognise the children and the parents as a family was not enough, and significant "practical" consequences needed be demonstrated. </span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">The "consequence-based approach" seems wholly unsuited to dealing with the facts of this case. In my view, the Court should not have adopted this mode of analysis. The Court could just as easily have begun with the presumption that the notion of “private life” within the meaning of Article 8 is a broad concept which encompasses, according to its case law,<span style="background-color: white; text-align: justify; text-indent: 18.933332443237305px;"> a person’s physical and social identity which includes the legal parent-child relationship (</span><span class="sBC73225D" style="box-sizing: border-box; font-style: italic; text-align: justify; text-indent: 18.933332443237305px;"><a href="https://hudoc.echr.coe.int/eng?i=001-145180"><span class="sBC73225D" style="box-sizing: border-box;">Labassee v</span><span class="sBC73225D" style="box-sizing: border-box;"> </span><span class="sBC73225D" style="box-sizing: border-box;">France</span></a></span>, 2014, <span style="background-color: white; text-align: justify; text-indent: 18.933332443237305px;">§§ 38 and 75)</span> and, on this basis alone, have determined that the facts of this case fell within its ambit. The Court has previously held that, for the purposes of Article 8, <span style="background-color: white; text-align: justify; text-indent: 18.933332443237305px;">there is a direct link between the establishment of paternity and an applicant's private life (</span><i><a href="https://hudoc.echr.coe.int/eng?i=001-60035"><span class="s7D2086B4" style="box-sizing: border-box; text-align: justify; text-indent: 18.933332443237305px;">Mikulić</span><span class="s7D2086B4" style="box-sizing: border-box; text-align: justify; text-indent: 18.933332443237305px;"> v </span></a></i><span class="s7D2086B4" style="box-sizing: border-box; text-align: justify; text-indent: 18.933332443237305px;"><i><a href="https://hudoc.echr.coe.int/eng?i=001-60035">Croatia</a>, </i>2002,<b> </b></span><span style="background-color: white; text-align: justify; text-indent: 18.933332443237305px;">§ 55). Moreover, </span>a key issue at stake in this case is the sexual orientation of the children's parents, and sexual orientation is long established to fall within the ambit of Article 8. If the Court had started by accepting that the issue in question fell within the ambit of Article 8, it could have conducted a full review on the merits and employed the standard Article 8 and Article 14+8 tests. This would have involved the Court interrogating the facts of the case in light of its established principle that if the reasons advanced for a difference in treatment are based solely on sexual orientation, this will amount to discrimination under the Convention (<i><a href="https://hudoc.echr.coe.int/eng?i=001-97597">Kozak v Poland</a></i>, 2010, § 92).</span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">Whilst the Court may ultimately have reached the conclusion that the decisions of the Polish authorities did not amount to a violation of Article 8 or Article 14+8 (see, for example, </span><span style="font-family: arial;"><a href="https://hudoc.echr.coe.int/eng?i=001-209992"><i>Valdís Fjölnisdóttir and Others v Iceland</i></a></span><span style="font-family: arial;">, 2021) it should, in my view, have reached its conclusion via a full interrogation of the facts based on the presumption that Article 8 did apply. It is wholly unconvincing, in light of the Court's established case law, for the Court to state at the admissibility stage that Article 8 did not apply because, for example, it was "unable to find any factual basis for concluding that there has been an interference with the right to respect for family life". That is an astonishing statement in the context of the Polish authorities saying so clearly and candidly that since</span><span style="background-color: white; font-family: arial; text-align: justify; text-indent: 18.933332443237305px;"> the children's birth certificates indicated two men as parents, and by that confirmed the surrogacy agreement, that they ran counter to the basic principles of the Polish legal system. </span><span style="font-family: arial;">In essence, then, the refusal of the Polish courts to recognise Mr S. as the children's parent should have rendered Article 8 applicable (see applicability of Article 8 in</span><span style="font-family: arial;"> </span><span style="font-family: arial;"><i>Valdís Fjölnisdóttir and Others v Iceland</i></span><span style="font-family: arial;">, 2021)</span><span style="font-family: arial;">, and required the Court to conduct a full review, on the merits, of whether the decisions of the Polish authorities were justified. </span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">However, having pursued the approach that it did, a further surprising feature of the Court's decision is its conclusion that the children could benefit, in the State where they live, from the legal parent‑child relationship with their biological father, where the recognition of that relationship was not in doubt. Put another way, because the children and parents were deemed not to be suffering from a lack of legal recognition in Israel, the consequences of the decisions by the Polish authorities were deemed to be less negative. This, to my mind, is a problematic approach. Since a key aspect of this case is alleged discrimination on the grounds of sexual orientation, the Court's approach could be interpreted to mean that discrimination in one State is less important if the person or people complaining about it can go and live somewhere else and not suffer from that discrimination (which is an interpretation that can be drawn from earlier decisions of the former European Commission of Human Rights in respect of complaints by same-sex couples). This suggests that the extent of the right of the children to respect for their private and family life is determined by where their biological father has chosen to live with them. Would the Court, therefore, have taken a different view if Mr. S. had, in fact, lived with his children in Poland (see </span><span style="font-family: arial;"><span class="s7D2086B4" style="box-sizing: border-box; font-style: italic; text-align: justify; text-indent: 18.933332443237305px;"><a href="https://hudoc.echr.coe.int/eng?i=001-145389">Mennesson</a></span><span class="s7D2086B4" style="box-sizing: border-box; text-align: justify; text-indent: 18.933332443237305px;"><i><a href="https://hudoc.echr.coe.int/eng?i=001-145389"> v France</a></i>, 2014 and </span><span class="sBC73225D" style="box-sizing: border-box; font-style: italic; text-align: justify; text-indent: 18.933332443237305px;"><span class="sBC73225D" style="box-sizing: border-box;">Labassee v</span><span class="sBC73225D" style="box-sizing: border-box;"> </span><span class="sBC73225D" style="box-sizing: border-box;">France</span></span>, 2014)? And, if so, why? Why should the decision of Mr. S. about where he lives with his children determine an assessment of whether the children are being subject to discrimination by the Polish authorities? One could say, either the children are being discriminated against or they are not, and where they live is not relevant. </span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">Relatedly, it seems problematic for the Court to tell the children that "any potential risk to their family life should be regarded in this particular case as purely speculative and hypothetical and could only possibly materialise if they took up residence in Poland". That seems to send the message that the Court will only deal with the issues raised if the children and their parents move to Poland and, if they encounter similar problems regarding recognition of their family life, make a fresh application to the Court - which, of course, they could do. But what if the children's parents do not feel able to move to Poland without first establishing that they have recognition as a family and, on this basis, their children are regarded as Polish citizens? The Court's message seems to be that the children and their parents must first face the potential "risks" to their family life that may be created by living in a jurisdiction that so obviously does not recognise their family life before those risks can be dealt with. In the context of this case, that seems a problematic approach. </span></div><div><span style="font-family: arial; text-align: justify; text-indent: 18.933332443237305px;"><br /></span></div><div><span style="font-family: arial;"><span style="text-align: justify; text-indent: 18.933332443237305px;">Ultimately, in this case, the Court was presented with complex facts, involving children born by surrogacy, who have same-sex parents who are legally recognised as their parents in one jurisdiction and who all live together in another jurisdiction. Clearly, Polish law was incapable of dealing with the reality of the children's family life and could not recognise their same-sex parents (legally defined as such in another jurisdiction) as their legal parents. This case clearly, in my view, called for a full examination on the merits, on the basis that Article 8 was applicable, and cried out for an application of the principle that the Convention is a living instrument that must be interpreted in the light of present day conditions. Instead, the Court's approach can be interpreted as a way of avoiding having to deal with the complexities raised by this case. That is a shame because this case, which deals with the complex realities of contemporary family relationships in a legal context that cannot or will not evolve to accommodate such realities, is a case that transcends the person and the interests of the applicants (<i><a href="https://hudoc.echr.coe.int/eng?i=001-57469">Deweer v Belgium</a>, </i>1980, § 38). As such, </span><span style="background-color: white; text-align: justify; text-indent: 18.933332443237305px;">it would have been good if the Court had remembered that its mission is to determine issues on public-policy grounds in the common interest, thereby raising the general standards of protection of human rights and extending human rights jurisprudence throughout the community of Convention States (<i><a href="https://hudoc.echr.coe.int/eng?i=001-61263">Karner v Austria</a></i>, 2003, § 26). Instead of doing this, the Court disposed of the application in a manner which is problematic and missed the opportunity to evolve its jurisprudence in important ways.</span></span></div><div><p class="s899B3E47" style="box-sizing: border-box; line-height: normal; margin: 0pt 0px; text-align: left; text-indent: 0px;"><span class="s68F5EAEF" style="box-sizing: border-box; font-family: Arial; font-size: 16px; text-align: justify; text-indent: 14.2pt;"><br /></span></p><p class="s899B3E47" style="box-sizing: border-box; line-height: normal; margin: 0pt 0px; text-align: left; text-indent: 0px;"><span style="background-color: white; text-align: justify; text-indent: 18.933332443237305px;"><span style="font-family: Arial;"><br /></span></span></p><p class="s899B3E47" style="box-sizing: border-box; line-height: normal; margin: 0pt 0px; text-align: left; text-indent: 0px;"><span style="background-color: white; text-align: justify; text-indent: 18.933332443237305px;"><span style="font-family: Arial;"><br /></span></span></p><p class="s899B3E47" style="box-sizing: border-box; line-height: normal; margin: 0pt 0px;"><span style="font-family: Arial; font-size: 16px; text-align: justify; text-indent: 18.933332443237305px;"><br /></span></p></div></div>Paul Johnsonhttp://www.blogger.com/profile/03461850697230434763noreply@blogger.com0tag:blogger.com,1999:blog-7100925932021210247.post-66828346542410149862021-10-23T19:10:00.003+01:002021-10-24T09:47:31.751+01:00Dudgeon v the United Kingdom - 40th anniversary event <p></p><div class="separator" style="clear: both; text-align: center;"><a href="https://1.bp.blogspot.com/-VWw_2EK7CCQ/YXRIEPcOVhI/AAAAAAAACwk/kBndwasJOZU_bzulcwAQZg1dw9mvD7rlwCLcBGAsYHQ/s798/Screenshot%2B2021-10-23%2Bat%2B18.36.03.png" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="540" data-original-width="798" height="271" src="https://1.bp.blogspot.com/-VWw_2EK7CCQ/YXRIEPcOVhI/AAAAAAAACwk/kBndwasJOZU_bzulcwAQZg1dw9mvD7rlwCLcBGAsYHQ/w400-h271/Screenshot%2B2021-10-23%2Bat%2B18.36.03.png" width="400" /></a></div><div class="separator" style="clear: both; text-align: center;"><span style="font-family: arial; text-align: left;"><br /></span></div><div class="separator" style="clear: both;"><span style="font-family: arial;">On the fortieth ann<span style="text-align: left;">iversary of one of the most important LGBT+ legal victories </span><span style="text-align: left;">I was joined by a fantastic group of speakers, Lord Lexden OBE, and Jeffrey Dudgeon MBE, to discuss the importance and enduring significance of </span></span><i style="font-family: arial;"><a href="http://hudoc.echr.coe.int/eng?i=001-57473">Dudgeon v the United Kingdom</a></i><span style="font-family: arial;"><span style="text-align: left;">.</span></span></div><div class="separator" style="clear: both;"><span style="font-family: arial;"><span style="text-align: left;"><br /></span></span></div><div class="separator" style="clear: both;"><span style="font-family: arial;">The <i>Dudgeon </i>case concerned the complete criminalisation of consensual same-sex sexual acts between adult men in Northern Ireland and the judgment of the European Court of Human Rights on 22 October 1981 led to the enactment of the <a href="https://www.legislation.gov.uk/nisi/1982/1536/pdfs/uksi_19821536_en.pdf">Homosexual Offences (Northern Ireland) Order 1982</a> which partially decriminalised "homosexual acts". </span></div><div class="separator" style="clear: both;"><span style="font-family: arial;"><br /></span></div><div class="separator" style="clear: both;"><span style="font-family: arial;">An audio recording </span><span style="font-family: arial;">of the event, capturing the rich and profound contributions, is available to listen to <a href="https://soundcloud.com/paul-johnson-364432197/dudgeon-v-the-united-kingdom-40th-anniversary">here</a> (via Soundcloud) or </span><span style="font-family: arial;"><a href="https://drive.google.com/file/d/1aj9jaG7tNUY1d5ExgGabO5iS9c7eCI_F/view?usp=sharing">here</a> (via Google Drive)</span><span style="font-family: arial;">, and details of the contributions are as follows:</span></div><p></p><table cellpadding="0" cellspacing="0" class="t1" style="border-collapse: collapse; border-color: rgb(191, 191, 191); border-style: solid; border-width: 0.5px; border: 0.5px solid rgb(191, 191, 191);"><tbody><tr><td class="td1" style="border-color: rgb(191, 191, 191); border-style: solid; border-width: 0.5px; border: 0.5px solid rgb(191, 191, 191); padding: 0px 5px; width: 77.8px;" valign="top"><p class="p1" style="font-stretch: normal; font-variant-east-asian: normal; font-variant-numeric: normal; line-height: normal; margin: 0px;"><b><span style="font-family: arial; font-size: x-small;">Time point</span></b></p></td><td class="td2" style="border-color: rgb(191, 191, 191); border-style: solid; border-width: 0.5px; border: 0.5px solid rgb(191, 191, 191); padding: 0px 5px; width: 372.8px;" valign="top"><p class="p1" style="font-stretch: normal; font-variant-east-asian: normal; font-variant-numeric: normal; line-height: normal; margin: 0px;"><b><span style="font-family: arial; font-size: x-small;">Speaker</span></b></p></td></tr><tr><td class="td1" style="border-color: rgb(191, 191, 191); border-style: solid; border-width: 0.5px; border: 0.5px solid rgb(191, 191, 191); padding: 0px 5px; width: 77.8px;" valign="top"><p class="p1" style="font-stretch: normal; font-variant-east-asian: normal; font-variant-numeric: normal; line-height: normal; margin: 0px;"><span style="font-family: arial; font-size: x-small;">00:00</span></p></td><td class="td2" style="border-color: rgb(191, 191, 191); border-style: solid; border-width: 0.5px; border: 0.5px solid rgb(191, 191, 191); padding: 0px 5px; width: 372.8px;" valign="top"><p class="p1" style="font-stretch: normal; font-variant-east-asian: normal; font-variant-numeric: normal; line-height: normal; margin: 0px;"><span style="font-family: arial; font-size: x-small;">Prof. Paul Johnson – Introductory remarks</span></p></td></tr><tr><td class="td1" style="border-color: rgb(191, 191, 191); border-style: solid; border-width: 0.5px; border: 0.5px solid rgb(191, 191, 191); padding: 0px 5px; width: 77.8px;" valign="top"><p class="p1" style="font-stretch: normal; font-variant-east-asian: normal; font-variant-numeric: normal; line-height: normal; margin: 0px;"><span style="font-family: arial; font-size: x-small;">03:58</span></p></td><td class="td2" style="border-color: rgb(191, 191, 191); border-style: solid; border-width: 0.5px; border: 0.5px solid rgb(191, 191, 191); padding: 0px 5px; width: 372.8px;" valign="top"><p class="p1" style="font-stretch: normal; font-variant-east-asian: normal; font-variant-numeric: normal; line-height: normal; margin: 0px;"><span style="font-family: arial; font-size: x-small;">Lord Lexden OBE – Opening remarks</span></p></td></tr><tr><td class="td1" style="border-color: rgb(191, 191, 191); border-style: solid; border-width: 0.5px; border: 0.5px solid rgb(191, 191, 191); padding: 0px 5px; width: 77.8px;" valign="top"><p class="p1" style="font-stretch: normal; font-variant-east-asian: normal; font-variant-numeric: normal; line-height: normal; margin: 0px;"><span style="font-family: arial; font-size: x-small;">09:12</span></p></td><td class="td2" style="border-color: rgb(191, 191, 191); border-style: solid; border-width: 0.5px; border: 0.5px solid rgb(191, 191, 191); padding: 0px 5px; width: 372.8px;" valign="top"><p class="p1" style="font-stretch: normal; font-variant-east-asian: normal; font-variant-numeric: normal; line-height: normal; margin: 0px;"><span style="font-family: arial; font-size: x-small;">Dr Silvia Falcetta – The Dudgeon case in historical perspective</span></p></td></tr><tr><td class="td1" style="border-color: rgb(191, 191, 191); border-style: solid; border-width: 0.5px; border: 0.5px solid rgb(191, 191, 191); padding: 0px 5px; width: 77.8px;" valign="top"><p class="p1" style="font-stretch: normal; font-variant-east-asian: normal; font-variant-numeric: normal; line-height: normal; margin: 0px;"><span style="font-family: arial; font-size: x-small;">13:39</span></p></td><td class="td2" style="border-color: rgb(191, 191, 191); border-style: solid; border-width: 0.5px; border: 0.5px solid rgb(191, 191, 191); padding: 0px 5px; width: 372.8px;" valign="top"><p class="p1" style="font-stretch: normal; font-variant-east-asian: normal; font-variant-numeric: normal; line-height: normal; margin: 0px;"><span style="font-family: arial; font-size: x-small;">Nigel Warner MBE – The “gay rights” politics of the Dudgeon case</span></p></td></tr><tr><td class="td1" style="border-color: rgb(191, 191, 191); border-style: solid; border-width: 0.5px; border: 0.5px solid rgb(191, 191, 191); padding: 0px 5px; width: 77.8px;" valign="top"><p class="p1" style="font-stretch: normal; font-variant-east-asian: normal; font-variant-numeric: normal; line-height: normal; margin: 0px;"><span style="font-family: arial; font-size: x-small;">18:36</span></p></td><td class="td2" style="border-color: rgb(191, 191, 191); border-style: solid; border-width: 0.5px; border: 0.5px solid rgb(191, 191, 191); padding: 0px 5px; width: 372.8px;" valign="top"><p class="p1" style="font-stretch: normal; font-variant-east-asian: normal; font-variant-numeric: normal; line-height: normal; margin: 0px;"><span style="font-family: arial; font-size: x-small;">The Rev’d Gerry Lynch – Sexual orientation, human rights and Christianity in Africa</span></p></td></tr><tr><td class="td1" style="border-color: rgb(191, 191, 191); border-style: solid; border-width: 0.5px; border: 0.5px solid rgb(191, 191, 191); padding: 0px 5px; width: 77.8px;" valign="top"><p class="p1" style="font-stretch: normal; font-variant-east-asian: normal; font-variant-numeric: normal; line-height: normal; margin: 0px;"><span style="font-family: arial; font-size: x-small;">25:00</span></p></td><td class="td2" style="border-color: rgb(191, 191, 191); border-style: solid; border-width: 0.5px; border: 0.5px solid rgb(191, 191, 191); padding: 0px 5px; width: 372.8px;" valign="top"><p class="p1" style="font-stretch: normal; font-variant-east-asian: normal; font-variant-numeric: normal; line-height: normal; margin: 0px;"><span style="font-family: arial; font-size: x-small;">Dr Loveday Hodson – The relevance of Dudgeon for lesbians/women</span></p></td></tr><tr><td class="td1" style="border-color: rgb(191, 191, 191); border-style: solid; border-width: 0.5px; border: 0.5px solid rgb(191, 191, 191); padding: 0px 5px; width: 77.8px;" valign="top"><p class="p1" style="font-stretch: normal; font-variant-east-asian: normal; font-variant-numeric: normal; line-height: normal; margin: 0px;"><span style="font-family: arial; font-size: x-small;">33:53</span></p></td><td class="td2" style="border-color: rgb(191, 191, 191); border-style: solid; border-width: 0.5px; border: 0.5px solid rgb(191, 191, 191); padding: 0px 5px; width: 372.8px;" valign="top"><p class="p1" style="font-stretch: normal; font-variant-east-asian: normal; font-variant-numeric: normal; line-height: normal; margin: 0px;"><span style="font-family: arial; font-size: x-small;">Prof. Kanstantsin Dzehtsiarou – The impact of Dudgeon on ECHR law</span></p></td></tr><tr><td class="td1" style="border-color: rgb(191, 191, 191); border-style: solid; border-width: 0.5px; border: 0.5px solid rgb(191, 191, 191); padding: 0px 5px; width: 77.8px;" valign="top"><p class="p1" style="font-stretch: normal; font-variant-east-asian: normal; font-variant-numeric: normal; line-height: normal; margin: 0px;"><span style="font-family: arial; font-size: x-small;">39:06</span></p></td><td class="td2" style="border-color: rgb(191, 191, 191); border-style: solid; border-width: 0.5px; border: 0.5px solid rgb(191, 191, 191); padding: 0px 5px; width: 372.8px;" valign="top"><p class="p1" style="font-stretch: normal; font-variant-east-asian: normal; font-variant-numeric: normal; line-height: normal; margin: 0px;"><span style="font-family: arial; font-size: x-small;">Ciaran Moynagh – LGBT human rights in Northern Ireland 40 years after Dudgeon</span></p></td></tr><tr><td class="td1" style="border-color: rgb(191, 191, 191); border-style: solid; border-width: 0.5px; border: 0.5px solid rgb(191, 191, 191); padding: 0px 5px; width: 77.8px;" valign="top"><p class="p1" style="font-stretch: normal; font-variant-east-asian: normal; font-variant-numeric: normal; line-height: normal; margin: 0px;"><span style="font-family: arial; font-size: x-small;">49:03</span></p></td><td class="td2" style="border-color: rgb(191, 191, 191); border-style: solid; border-width: 0.5px; border: 0.5px solid rgb(191, 191, 191); padding: 0px 5px; width: 372.8px;" valign="top"><p class="p1" style="font-stretch: normal; font-variant-east-asian: normal; font-variant-numeric: normal; line-height: normal; margin: 0px;"><span style="font-family: arial; font-size: x-small;">Jeffrey Dudgeon MBE – Reflections on the past, present and future</span></p></td></tr></tbody></table><div class="separator" style="clear: both; text-align: center;"><span style="font-family: arial;"><br /></span></div><span style="font-family: arial;"><u>Here is the text of my opening remarks:</u></span><div><span style="font-family: arial;"><br /></span></div><span style="font-family: times;">A very good evening everyone, <br /> <br />I’m Paul Johnson and it is my great pleasure to welcome you to this event, to celebrate the anniversary of one of the world’s most important legal victories for LGBT+ people. <br /> <br />Today is exactly forty years since the European Court of Human Rights issued its judgment in the case of <i>Dudgeon v the United Kingdom</i>.<br /><br /> On 22 October 1981, the European Court of Human Rights agreed with Jeffrey Dudgeon that the complete criminalization of same-sex sexual acts between adult men in Northern Ireland constituted a violation of his human rights as protected by the European Convention on Human Rights. <br /><br />In reaching this judgment, the European Court of Human Rights ushered in a new era of “gay rights” in which law ceased to be only a source of oppression for gay people but also became a viable and realistic means to seek protection from oppression. <br /><br />The importance of the judgment in <i>Dudgeon </i>cannot be overstated and this event gives us an opportunity to understand the wide-ranging impacts that it has had and continues to have. <br /><br />To help us understand the significance of the <i>Dudgeon</i> case we have an amazing set of speakers who are each going to reflect on the judgment, and give us different insights and perspectives on it, as well as discuss contemporary issues relevant to it – I’ll introduce the speakers in turn in due course. <br /><br />We are also blessed to have Lord Lexden, Deputy Speaker of the House of Lords, with us to open this event.<br /><br />And we also have the great man himself, Jeffrey Dudgeon, here, who will speak later, and will answer any questions you have at the end. <br /><br />Before I hand over to Lord Lexden, I did want to say that the late, great human rights barrister, Jonathan Cooper, was due to speak at this event, and was very excited to do so. As many of you will know, Jonathan very sadly died recently. His passing has been widely mourned, and widely commented on as an enormous loss to LGBT rights. I want to note Jonathan’s absence here, say how much I miss him, and remember all that he did for LGBT rights. <br /><br />And now, I really am delighted to introduce Lord Lexden, who has a lifetime of experience and knowledge of Northern Ireland, which is, of course, the part of the UK where the <i>Dudgeon</i> case originated. Alistair worked as an academic historian at Queen's University, Belfast between 1969 and 1977 and, among other activities, was an archivist in the Public Record Office of Northern Ireland. Since that time, Alistair has regularly researched, written about, and spoken on a wide range of issues related to Northern Ireland and, since he took his seat in the House of Lords in 2011, Northern Ireland has been a principal focus of his parliamentary activities.<br /><br />So, there could be no one better to open this event, and I'll hand over to Alistair now.</span><br /><br /><span style="font-family: arial;"><u>Here is the text of the opening remarks by Lord Lexden OBE:</u></span><br /><br /><div><div><span style="font-family: times;">The first thing I have to do—and I do it with great enthusiasm—is to pay tribute to Paul Johnson for having conceived the happy idea of marking the 40th anniversary of Jeff Dudgeon’s Strasbourg triumph, and for organising this event with the thoroughness which seems to be his middle name. No one has a greater commitment than Paul to advancing the cause of LGBT rights, and also to honouring those who suffered grievously in past generations. Legislation is before the Lords at the moment, which, thanks to amendments crafted by Paul, will enable many more people and their families to wipe away the stains left by hateful laws that have now been repealed.<br /><br />Not the least of the benefits for which we have to thank Paul is his publication of Jeff’s moving first-hand account of his life as a gay man in Belfast in the 1970s, and of the Strasbourg case itself. It is readily available for all time in Paul’s book, <i>Going to Strasbourg</i>, published in 2016.<br /><br /></span></div><div><span style="font-family: times;">Paul has referred to my interest in Northern Ireland, which was rather greater forty years ago than it is now. Lacking a diary, I cannot recall my work then in detail. But I am clear that in the Tory ranks at Westminster, the case for extending the 1967 Act to Northern Ireland stirred no interest whatsoever. It never came up in my conversations with Airey Neave, with whom I worked for two years before his murder; though, as a man of great humanity, I do not think he would have been unsympathetic.<br /><br />The Thatcher government, formed in 1979, specifically ruled out action to diminish the oppression of the criminal law on gay people in Northern Ireland. That is the simple, central fact that needs to be borne constantly in mind in assessing the significance of Jeff’s victory. It, and it alone, extracted legislation from an indifferent administration, though there were notable elements within it—including Jim Prior, then the Northern Ireland Secretary—who gladly changed course in the light of the Strasbourg judgement.<br /><br />Almost exactly one year later, on 25 October 1982, the Homosexual Offences (Northern Ireland) Order was passed by the House of Commons, with all the Province’s MPs opposing it. In a book of memoirs, Matthew Parris recalls how he overcame considerable nervousness to speak in favour of the legislation. In his brief, moving speech, he said: “Seldom does so small a measure, debated in so short a time and brought at such a late hour, touch so deeply the lives of so many thousands of people in the United Kingdom.” It was important moment in Matthew’s life. His emergence as a gay rights campaigner was to follow soon afterwards . Many lives throughout the country would be touched and assisted by his work in future years.<br /><br />Winston Churchill said many things in 1940, including this: “When the perspective of time has lengthened, all stands in a different setting”. The Dudgeon case defies that Churchillian wisdom. It stands in exactly the same high setting today as it did forty years ago—perhaps even higher, when the long succession of subsequent developments which it helped make possible is taken into account.<br /><br />Whenever I think of Jeff Dudgeon, the name of another Ulsterman springs into my mind. Harford Montgomery Hyde was a very liberal-minded Ulster Unionist MP between 1950 and 1959. Though not gay himself, he courted acute controversy in Protestant Belfast by calling repeatedly for the repeal of anti-gay laws. He did not make life easy for himself. “Mr Hyde”, said Billy Douglas, a legendary Ulster Unionist official, “are you mad? You have put a list of great homosexuals at the back of your book on Oscar Wilde with William of Orange at the top of it.” He was deselected in 1959. Appropriately, Jeff has written a little book about this courageous man who, like him, defied abuse and hostility to demand human rights for gay people.<br /><br />May I end with a personal reflection—one which Jeff, I think, shares? I have always felt that the interests of gay people are not well-served by the existence of devolved parliaments within the United Kingdom. There should be uniform standards of human rights throughout a unitary state. I often seek Paul Johnson’s counsel on this point. Throughout the 1980s, I hoped that it might be possible to prevent the return of wide law-making powers to Stormont, and so stop the devolution bandwagon in Scotland and Wales. Gay people should at all times have exactly the same rights and freedoms in Belfast and Birmingham. If that had been achieved, it would have been a fine sequel to Jeff’s great victory on this day forty years ago.</span></div><div><span style="font-family: times;"><br /><br /> </span><div><span style="font-family: arial;">The flyer produced for the event is available <a href="https://drive.google.com/file/d/1flfGjchfgCfAO4R1wVnTZoVNKbgeu7-D/view?usp=sharing">here</a>.<br /></span><p><span style="font-family: arial;"><br /></span></p><span style="font-family: arial;"><br /></span><p></p><span style="font-family: arial;"><br /></span><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p></p><div class="separator" style="clear: both; text-align: center;"><span style="font-family: arial;"><br /></span></div><span style="font-family: arial;"><br /></span><br /><p></p></div></div></div>Paul Johnsonhttp://www.blogger.com/profile/03461850697230434763noreply@blogger.com0tag:blogger.com,1999:blog-7100925932021210247.post-22079520392299196252021-09-28T21:00:00.000+01:002021-09-28T21:00:15.791+01:00Dudgeon v the United Kingdom: Fortieth anniversary free online event <div class="separator" style="clear: both; text-align: center;"><br /></div><div class="separator" style="clear: both; text-align: center;"><a href="https://1.bp.blogspot.com/-tj9tya14Ulw/YVNwPH2MQcI/AAAAAAAACus/aAZ_iMiAPcMwuQSQHQOnM8St0ltQdM3XQCLcBGAsYHQ/s2048/Screenshot%2B2021-09-28%2Bat%2B20.41.27.png" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="1035" data-original-width="2048" height="324" src="https://1.bp.blogspot.com/-tj9tya14Ulw/YVNwPH2MQcI/AAAAAAAACus/aAZ_iMiAPcMwuQSQHQOnM8St0ltQdM3XQCLcBGAsYHQ/w640-h324/Screenshot%2B2021-09-28%2Bat%2B20.41.27.png" width="640" /></a></div><br /><span style="font-family: arial;"><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;"><br /></span></div><div><div class="separator" style="clear: both; text-align: center;"><a href="https://1.bp.blogspot.com/-VhYJQIbMQXQ/YVNwZCdlEYI/AAAAAAAACu0/sW7t5Xr33j8eh_87jPr64cNmfTddFg1qQCLcBGAsYHQ/s1850/Screenshot%2B2021-09-28%2Bat%2B20.37.51.png" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="1850" data-original-width="690" height="640" src="https://1.bp.blogspot.com/-VhYJQIbMQXQ/YVNwZCdlEYI/AAAAAAAACu0/sW7t5Xr33j8eh_87jPr64cNmfTddFg1qQCLcBGAsYHQ/w238-h640/Screenshot%2B2021-09-28%2Bat%2B20.37.51.png" width="238" /></a></div>On 22 October 1981, Jeffrey Dudgeon made history and changed the world. </div><div><br /></div><div>After five years of litigation, Jeff won his case in the European Court of Human Rights and established that criminalizing adult same-sex sexual relationships in Northern Ireland was a violation of human rights. </div><div><br /></div><div>This landmark judgment led to a change in the law in Northern Ireland and other European countries. </div><div><br /></div><div>The judgment continues to set an international legal standard, and provides lesbians and gay men around the world with a means of articulating their aspiration to be free of odious and oppressive criminal laws.</div><div><br /></div><div><b>Join us on the fortieth anniversary of this important milestone in LGBT history to learn about the case, celebrate the man who brought it, and consider its continuing relevance to LGBT human rights today.</b></div><div><br /></div><div>The event will be opened by Lord Lexden OBE.</div><div><br /></div><div>There will be short reflections by Dr Peter Dunne, Prof Kanstantsin Dzehtsiarou, Dr Silvia Falcetta, Dr Loveday Hodson, Prof Paul Johnson, the Rev’d Gerry Lynch, Ciaran Moynagh, Dr Frank Mugisha, and Nigel Warner MBE.</div><div><br /></div><div>Jeffrey Dudgeon MBE will close the event with his reflections on the past, present and future.</div><div><br /></div></span><div><span style="font-family: arial;"><b>This free online event, which is open to all, will be held on </b></span><span style="font-family: arial;"><b>22 October 2021, 6.30-7.45pm (BST) and participants can register here:</b></span></div><div><span style="font-family: arial;"><a href="https://www.eventbrite.co.uk/e/dudgeon-v-the-united-kingdom-tickets-176228874307"><b>https://www.eventbrite.co.uk/e/dudgeon-v-the-united-kingdom-tickets-176228874307</b></a></span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">Download the event flyer </span><a href="https://drive.google.com/file/d/1LJoppcRADNqPhiMhJXgyEyyO3YS3Zv3U/view?usp=sharing" style="font-family: arial;">here</a></div>Paul Johnsonhttp://www.blogger.com/profile/03461850697230434763noreply@blogger.com0tag:blogger.com,1999:blog-7100925932021210247.post-86041626414481887262021-09-20T10:47:00.000+01:002021-09-20T10:47:17.631+01:00Jonathan Cooper OBE<p> </p><div class="separator" style="clear: both; text-align: center;"><a href="https://1.bp.blogspot.com/-iEKwc_njvaA/YUhMYdMiVmI/AAAAAAAACuE/-puNZrFJ2ZsNdy4RGJD8OGOf-Q195Om0gCLcBGAsYHQ/s400/SD9m81Ec_400x400.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="400" data-original-width="400" height="400" src="https://1.bp.blogspot.com/-iEKwc_njvaA/YUhMYdMiVmI/AAAAAAAACuE/-puNZrFJ2ZsNdy4RGJD8OGOf-Q195Om0gCLcBGAsYHQ/w400-h400/SD9m81Ec_400x400.jpg" width="400" /></a></div><br /><p></p><span style="font-family: arial;"><i>One of the world's greatest champions for human rights has very sadly left us. All who knew Jonathan admired his tireless passion for, and energy for realising, the human rights of all people, including LGBT people. I'm sure there will be celebrations and commemorations of Jonathan's life and work in times to come, but today I am remembering his absolute and profound commitment to cherishing and elevating human dignity, which is encapsulated in his words below. </i><br /></span><b><span style="font-family: arial;"><br /></span></b><div><b><span style="font-family: arial;"><br /></span></b></div><div style="text-align: center;"><b><span style="font-family: arial; font-size: large;">"Dignity Matters", </span></b></div><div style="text-align: center;"><b><span style="font-family: arial; font-size: large;">by Jonathan Cooper OBE</span></b></div><div><span style="font-family: arial;"><br /></span></div><div style="text-align: justify;"><span style="font-family: arial;">The central human rights question for the UK is does it adequately protect the right to human dignity? The answer to that quandary is that dignity is only just adequately recognised in law. The limited protection dignity is guaranteed in law in the UK comes from the ECHR [European Convention on Human Rights] via the HRA [Human Rights Act 1998], which is why tinkering with the HRA should be avoided. An unexpected consequence might be that the nascent right to human dignity is stifled as a consequence.</span></div><div style="text-align: justify;"><span style="font-family: arial;"><br /></span></div><div style="text-align: justify;"><span style="font-family: arial;">Human dignity matters. It is a recognition of individual worth. Without an express right to human dignity, human rights law can remedy the consequences of violations of human rights but cannot always guarantee human dignity. Rights may be able to address violations that contribute to the encroachment on dignity but there are circumstances where human rights are insufficient to recognise the real harm caused, which is a denial of human dignity. </span></div><div style="text-align: justify;"><span style="font-family: arial;"><br /></span></div><div style="text-align: justify;"><span style="font-family: arial;">To over formalise the definition of human dignity, it prohibits instrumentalisation or objectification of human beings. What does this mean? People are not objects. Any dealings with people must recognise their inherent value. Dignity requires we always treat a person as an end in themselves, not as a means to an end.</span></div><div style="text-align: justify;"><span style="font-family: arial;"><br /></span></div><div style="text-align: justify;"><span style="font-family: arial;">Dignity will be engaged and likely violated when persons are denied their identities as individuals and are only characterised by being lumped within a group. Individualism becomes merged into a mound: a group which is defined by others. That denial of the person means that those who are defined as part of that group can be derided and demeaned.</span></div><div style="text-align: justify;"><span style="font-family: arial;"><br /></span></div><div style="text-align: justify;"><span style="font-family: arial;">Taken to its extreme, this denial of dignity leads to the horrors of genocide. The Jews, Bosnian Muslims and the Tutsi were all diminished as individuals. They were denied their equality, humanity and dignity. Their individualism was negated. They ceased to be persons and became defined by the group identity that they had been given to justify their persecution. Apartheid in South Africa is another example. Slavery is only possible when dignity is denied.</span></div><div style="text-align: justify;"><span style="font-family: arial;"><br /></span></div><div style="text-align: justify;"><span style="font-family: arial;">The UK witnesses the consequences of this denial of dignity for Black, Asian and minority ethnic people. The Windrush scandal is a textbook example of the consequences of sidestepping human dignity. Women have been similarly disregarded. The disabled become that. They cease to be people. Those who are poor can be similarly left without dignity.</span></div><div style="text-align: justify;"><span style="font-family: arial;"><br /></span></div><div style="text-align: justify;"><span style="font-family: arial;">The right to human dignity has been recognised as being particularly relevant to LGBT people. For millennia LGBT people have been tormented, criminalised and erased. The ability of LGBT people to form intimate, loving sexual relations has been ridiculed and rebuffed. The levels of violence LGBT people have been subjected to are unimaginable. </span><span style="font-family: arial;">LGBT people have lived the lives of outlaws, with no state protection. As recently as the 1950s a British Home Secretary had committed to “remove the scourge” of LGBT people from society. Such threats continue to be made by governments across the globe. It is not an over exaggeration to assert that if LGBT people could have been deliberately and systematically destroyed, they would have been. Except they keep being born. </span></div><div style="text-align: justify;"><span style="font-family: arial;"><br /></span></div><div style="text-align: justify;"><span style="font-family: arial;">The consequences of the stereotyping of LGBT people is a classic example of the denial of dignity. The human right to private life has helped, as has freedom of expression, as well as the prohibition on discrimination and increasingly the prohibition on inhuman treatment, but the right that encapsulates the harm done to LGBT people is the denial of dignity.</span></div><div style="text-align: justify;"><span style="font-family: arial;"><br /></span></div><div style="text-align: justify;"><span style="font-family: arial;">In the absence of an enforceable right to human dignity, the treatment of LGBT people was justified because they were labelled unequal. And this inequality was reinforced by rules and law. And whilst the law recognised that inequality, and reinforced it, there was no reason to believe LGBT people were worthy of dignity.</span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;"><br /></span></div><span style="font-family: arial;"><span style="font-size: x-small;">Extract from Cooper, J. (2021) "The Human Rights Act: Delivering Rights and Enhancing Dignity" available <a href="https://human-rights-in-action.blogspot.com/2021/03/human-rights-in-action-evidence-to.html">here</a>.</span><br /><br /></span>Paul Johnsonhttp://www.blogger.com/profile/03461850697230434763noreply@blogger.com0tag:blogger.com,1999:blog-7100925932021210247.post-60933200541388614502021-09-17T13:25:00.001+01:002021-09-18T11:02:07.302+01:00Discrimination in Poland against lesbian in custody case is a violation of the ECHR<div><div class="separator" style="clear: both; text-align: center;"><a href="https://1.bp.blogspot.com/-8LxCk8xyqng/YUR5jhI9iUI/AAAAAAAACt8/MbpW5UyiCfgtEPgJMBadoO9kpw6Ho0pnACLcBGAsYHQ/s1068/mothers-day-mother-daughter-1068x711.jpg" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="711" data-original-width="1068" height="266" src="https://1.bp.blogspot.com/-8LxCk8xyqng/YUR5jhI9iUI/AAAAAAAACt8/MbpW5UyiCfgtEPgJMBadoO9kpw6Ho0pnACLcBGAsYHQ/w400-h266/mothers-day-mother-daughter-1068x711.jpg" width="400" /></a></div><span style="font-family: arial;"><div><span style="font-family: arial;"><br /></span></div>The First Section of the European Court of Human Rights has issued its judgment in the case of </span><a href="http://hudoc.echr.coe.int/eng?i=001-211799" style="font-family: arial;"><i>X v Poland</i></a><span style="font-family: arial;">. </span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">The case concerns the applicant's claim that she had been discriminated against on the basis of her sexual orientation in proceedings for full parental rights and custody rights over her youngest child.<br /><br />The Court held, by six votes to one, that there had been a violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life) of the European Convention on Human Rights.</span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;"><b>Facts of the case<br /></b><br />The applicant, Ms. X, is a Polish national who was born in 1970 and lives in Poland. She has four children from her marriage in 1993 with Mr. Y.<br /><br />After becoming involved in a relationship with another woman, Ms. Z, Ms. X applied for a divorce in April 2005. Her parents, who did not approve of their daughter’s decisions, subsequently sought custody of the children. Temporary custody was granted to them by the District Court, sitting as a single judge – a judge who was allegedly well acquainted with her parents. <br /><br />Following an appeal by both Ms. X and Mr. Y, in June 2005 the Regional Court quashed that decision. In the same month it pronounced a no-fault divorce and granted Ms. X full parental rights and custody of the four children.<br /><br />In October 2006 the applicant’s former husband applied to change the custody arrangement. After assessment of their respective parenting abilities, during which the applicant was asked directly whether she was homosexual and had had sexual intercourse with Ms. Z, the District Court granted full parental rights to Mr. Y and restricting those of Ms. X.<br /><br />Ms. X appealed, emphasising that she had always been the main carer for the children and that her former husband had not spent time with the children since the divorce, either not using his contact rights or leaving the children in the care of her parents. The appeal was dismissed.<br /><br />In April 2008, Ms. X requested that the custody order be revised in respect of her youngest child. The District Court, sitting as the same single judge, and relying on the expert opinions issued in the previous proceedings, held that the applicant “had concentrated excessively on herself and her relationship with her girlfriend”, and rejected her request for an interim measure allowing her to retain custody during the proceedings. <br /><br />In May 2008, Ms. X lodged an application challenging the impartiality of the judge. The following day, the same judge ordered that the child be removed from her care.<br /><br />In June 2009, the District Court dismissed Ms. X’s application for amendment of the custody order and for parental and custody rights over the youngest child. The court decided that the seven-year-old should continue to live with his siblings and father so that his correct emotional and social development needs could be met, stating that that decision was “justified by the current stage of the child’s development and the father’s larger role in creating [the child’s] male role model”.<br /><br />Ms. X appealed, claiming that the child was being looked after mainly by Mr. Y's sisters and grandparents. She considered that the court had failed to recognise the interests of the child and had taken her husband’s homophobic opinions into account, opinions which he had voiced to the children, the courts and the experts. She argued that the main grounds for the court’s decisions had been her relationship with another woman and was discriminatory on the basis of her sexual preferences. The Regional Court dismissed the appeal.<br /><br /><b>Complaint to the Court<br /></b><br />Ms. X complained that the domestic courts had refused to grant her custody of her child on the grounds of her sexual orientation, which amounted to discrimination in the enjoyment of her Convention rights, in breach of Article 14 taken in conjunction with Article 8 of the Convention.<br /><br /><b>Judgment of the Court<br /></b><br />The Court applied its general approach to complaints brought under Article 14 of the Convention, which includes the principle that, in order for an issue to arise under Article 14, there must be a difference in the treatment of persons in analogous or relevantly similar situations. <br /><br />The Court, therefore, considered whether there was a difference in treatment relevant to Article 14. In examining the domestic proceedings the Court found, for instance, that "references to the applicant’s homosexuality and relationship with Z were predominant in the first set of proceedings" (§ 76). </span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">The Court's "inescapable conclusion" was that Ms. X's "sexual orientation and relationship with another woman was consistently at the centre of deliberations in her regard and omnipresent at every stage of the judicial proceedings" (§ 79). </span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">The Court therefore concluded that there was a difference in treatment between Ms. X and any other parent wishing to have full custody of his or her child. This difference was based on her sexual orientation, a ground which is covered by “other status” in Article 14 of the Convention. <br /><br />The Court then turned, as is standard in an Article 14 issue, to ask whether the difference in treatment was justified. <br /><br />The Court focused on the fact that, in the most recent set of proceedings, the domestic courts refused to alter the status quo as regards custody on the basis of two main arguments: the advantages of all the siblings living together, and the importance of a “male role model” in the boy’s upbringing. </span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">The Court considered whether these arguments were appropriate to fulfil the purpose declared in these proceedings, namely to protect the best interests of the child. In so doing, the Court evaluated whether either or both reasons were based on discriminatory considerations.<br /><br />The Court's conclusion was that the reference to the importance of a male role model for the boy’s upbringing, the need for which would apparently increase as the child grew older, was discriminatory and a decisive factor in the dismissal of Ms. X's requests for custody. </span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">Moreover, the Court noted that the domestic courts considered that a positive assessment of Ms. X's competencies as a primary carer for her children depended on her stopping her relationship with Ms. Z. In this respect, the domestic courts referred to her relationship as “excessive involvement” and an “attitude” which needed to be “corrected” and expected the relationship to be “abandoned” and Ms. Z to be “excluded from family life”. <br /><br />The Court concluded that in refusing to grant Ms. X full parental rights and custody rights the domestic authorities "made a distinction based solely or decisively on considerations regarding her sexual orientation, a distinction which is not acceptable under the Convention" (§ 92). <br /><br />As such, there had been a breach of Article 14 of the Convention taken in conjunction with Article 8.</span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;"><b>Dissenting opinion of Judge</b> </span><span style="background-color: white; font-family: Arial; font-size: 16px;"><b>Wojtyczek (Poland)</b></span></div><div><span style="background-color: white; font-family: Arial; font-size: 16px;"><b><br /></b></span></div><div><span style="font-family: arial;">Judge </span><span style="background-color: white; font-family: Arial; font-size: 16px;">Wojtyczek filed a dissenting opinion, criticising the majority on three grounds, namely that</span><span style="background-color: white; font-family: Arial; font-size: 16px; text-align: justify; text-indent: 18.933332443237305px;"> </span><span style="background-color: white; font-family: Arial; font-size: 16px; text-align: justify; text-indent: 18.933332443237305px;">(i) the proceedings raise serious reservations from the viewpoint of procedural justice, (ii) the factual findings made by the Court are not fully accurate, and (iii) the legal assessment of the merits of the case appears incorrect.</span></div><div><span style="background-color: white; font-family: Arial; font-size: 16px; text-align: justify; text-indent: 18.933332443237305px;"><br /></span></div><div><span style="font-family: arial;">Judge </span><span style="background-color: white; font-family: Arial; font-size: 16px;">Wojtyczek argued that </span><span style="background-color: white; font-family: Arial; font-size: 16px; text-align: justify; text-indent: 18.933332443237305px;">the proceedings in this case are "fundamentally flawed from the standpoint of procedural justice" and that the majority "have established a difference in treatment without providing sufficient evidence that the applicant was treated differently from another class of parents in a similar situation". </span></div><div><span style="background-color: white; font-family: Arial; font-size: 16px; text-align: justify; text-indent: 18.933332443237305px;"><br /></span></div><div><span style="font-family: arial;">Judge </span><span style="background-color: white; font-family: Arial; font-size: 16px;">Wojtyczek concludes: "</span><span style="background-color: white; font-family: Arial; font-size: 16px; text-align: justify; text-indent: 18.933332443237305px;">In any event, the contested domestic judgments remain within the scope of the margin of appreciation of the respondent State".</span></div><div><span style="background-color: white; font-family: Arial; font-size: 16px; text-align: justify; text-indent: 18.933332443237305px;"><br /></span></div><div><span style="background-color: white; font-family: Arial; font-size: 16px; text-align: justify; text-indent: 18.933332443237305px;"><b>Brief comment on the influence of <i>E.B. v France </i></b></span></div><div><span style="background-color: white; font-family: Arial; text-align: justify; text-indent: 18.933332443237305px;"><br /></span></div><div><span style="background-color: white; text-align: justify; text-indent: 18.933332443237305px;"><span style="font-family: Arial;">One of the striking features of this judgment is the use it makes of the Grand Chamber's judgment in </span><i style="font-family: Arial;"><a href="http://hudoc.echr.coe.int/eng?i=001-84571">E.B. v France</a>. </i><span style="font-family: Arial;">In <i>E.B., </i></span><span style="font-family: Arial;">which concerned discrimination on the grounds of sexual orientation in respect of the adoption of a child, the Court reached the "</span></span><span class="sB8D990E2" style="box-sizing: border-box; font-family: Arial; font-size: 12pt; text-align: justify; text-indent: 18.933332443237305px;">inescapable</span><span class="sB8D990E2" style="box-sizing: border-box; font-family: Arial; font-size: 12pt; text-align: justify; text-indent: 18.933332443237305px;"> conclusion"</span><span class="sB8D990E2" style="box-sizing: border-box; font-family: Arial; font-size: 12pt; text-align: justify; text-indent: 18.933332443237305px;"> </span><span class="sB8D990E2" style="box-sizing: border-box; font-family: Arial; font-size: 12pt; text-align: justify; text-indent: 18.933332443237305px;">that that applicant's "sexual </span><span class="sB8D990E2" style="box-sizing: border-box; font-family: Arial; font-size: 12pt; text-align: justify; text-indent: 18.933332443237305px;">orientation </span><span class="sB8D990E2" style="box-sizing: border-box; font-family: Arial; font-size: 12pt; text-align: justify; text-indent: 18.933332443237305px;">was consistently at the </span><span class="sB8D990E2" style="box-sizing: border-box; font-family: Arial; font-size: 12pt; text-align: justify; text-indent: 18.933332443237305px;">centre </span><span class="sB8D990E2" style="box-sizing: border-box; font-family: Arial; font-size: 12pt; text-align: justify; text-indent: 18.933332443237305px;">of </span><span class="sB8D990E2" style="box-sizing: border-box; font-family: Arial; font-size: 12pt; text-align: justify; text-indent: 18.933332443237305px;">deliberations</span><span class="sB8D990E2" style="box-sizing: border-box; font-family: Arial; font-size: 12pt; text-align: justify; text-indent: 18.933332443237305px;"> in her regard and omnipresent at every stage of the </span><span class="sB8D990E2" style="box-sizing: border-box; font-family: Arial; font-size: 12pt; text-align: justify; text-indent: 18.933332443237305px;">administrative </span><span class="sB8D990E2" style="box-sizing: border-box; font-family: Arial; font-size: 12pt; text-align: justify; text-indent: 18.933332443237305px;">and judicial proceedings" (§ 88) and, as a consequence of this, she had suffered discrimination. In the case of Ms. X, the Court has reached exactly the same conclusion.</span></div><span style="font-family: arial;"><br />As my colleague, Loveday Hodson, commented to me, the Court's judgment in the case of Ms. X shows "<i>E.B.</i> in action". In <i>E.B.</i> the applicant’s "life-style" as a lesbian living with another woman was made a determining factor in refusing her request to adopt a child. As the Grand Chamber intimated in <i>E.B.</i>, having undue regard for an individual's sexual orientation can serve to "contaminate" judicial proceedings and decision-making to such an extent that the outcome is discriminatory. The Court can be seen to have adopted the same view in the case of Ms. X by holding that the domestic authorities made a distinction based solely or decisively on considerations regarding her sexual orientation, and that this distinction is not acceptable under the Convention. </span>Paul Johnsonhttp://www.blogger.com/profile/03461850697230434763noreply@blogger.com0tag:blogger.com,1999:blog-7100925932021210247.post-1632430687513299582021-08-17T22:48:00.003+01:002021-08-23T22:38:11.564+01:00Lesbian rights hero, first woman in UK to bring human rights case for same-sex couples, has died<p><br /></p><div class="separator" style="clear: both; text-align: center;"><a href="https://1.bp.blogspot.com/-8xvQftDd_bI/YRwIgyf07hI/AAAAAAAACtA/jEok8xeS5VApjG9n-ce3EtEGHiZTY_oygCLcBGAsYHQ/s640/Mary%2BSimpson.jpg" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="640" data-original-width="461" height="400" src="https://1.bp.blogspot.com/-8xvQftDd_bI/YRwIgyf07hI/AAAAAAAACtA/jEok8xeS5VApjG9n-ce3EtEGHiZTY_oygCLcBGAsYHQ/w290-h400/Mary%2BSimpson.jpg" width="290" /></a></div><br /><div style="text-align: center;"><span style="font-family: arial;"><b>Mary Cunningham Simpson, 1947-2021</b></span></div><div style="text-align: center;"><span style="font-family: arial;"><br /></span></div><span style="font-family: arial;">Mary Cunningham Simpson, the pioneering lesbian campaigner who fought for the legal and human rights of same-sex couples in the UK, sadly passed away yesterday. </span><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">Although now not widely remembered for her gay rights work and achievements, Mary was, in the 1980s, at the forefront of a human rights campaign to challenge laws that enabled same-sex couples to be discriminated against. </span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">An incredibly brave individual, Mary was the first woman to take a case </span><span style="font-family: arial;">to Strasbourg </span><span style="font-family: arial;">under the European Convention on Human Rights in an attempt to gain legal protections for cohabiting same-sex couples. This was at a time when, in the UK, same-sex couples had no legal protections for their relationships. </span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">Although Mary’s case in Strasbourg was unsuccessful, it provided an important basis for future cases that ultimately led to a change in the law both in the UK and at the European level.</span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;"><b>Mary’s case in the English courts</b></span></div><div><span style="font-family: arial;"><b><br /></b></span></div><div><span style="font-family: arial;"><div class="separator" style="clear: both; text-align: center;"><a href="https://1.bp.blogspot.com/-EesIpvkbfp0/YRwJk4PMHfI/AAAAAAAACtI/ch1QzdZ7EbQs6ZeGcow9laXxysYMf-MgwCLcBGAsYHQ/s2048/IMG_3328.jpg" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="1536" data-original-width="2048" height="300" src="https://1.bp.blogspot.com/-EesIpvkbfp0/YRwJk4PMHfI/AAAAAAAACtI/ch1QzdZ7EbQs6ZeGcow9laXxysYMf-MgwCLcBGAsYHQ/w400-h300/IMG_3328.jpg" width="400" /></a></div></span><span style="font-family: arial;"><div><span style="font-family: arial;"><br /></span></div>Mary’s human rights campaign began when her female partner, Nicky, with whom she lived, died in 1984. </span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">Mary and Nicky had lived together for nearly three years in a council house in Harrogate, of which Nicky was the secure tenant. When Nicky died, Harrogate Borough Council sought to evict Mary from the property. </span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">At that time, English law made provision for a person to succeed to a secure tenancy if they had lived with the deceased tenant “as husband and wife”. Mary claimed that she and Nicky had lived together as if they were a married couple since they ran a joint household, shared all expenses, slept together in the same bed, and had an intimate relationship. Mary’s general medical practitioner stated at the time that the couple had lived together in a lesbian relationship as “man and wife” and this had been well known and accepted in the area. </span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">On this basis, Mary refused to leave her home and Harrogate Borough Council commenced possession proceedings against her. Harrogate County Court found in favour of the Council, on the basis that, unlike the surviving partner of a different-sex couple, Mary had no legal right to succeed to Nicky’s tenancy. </span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;"><i>Gay News</i> reported at the time that Judge Victor Zermansky, in the County Court, had a great deal of sympathy for Mary and hinted that she had grounds for appealing his decision. Mary told me that the County Court “wasn’t too bad” and that they essentially told her “Oh no, we can’t do this”, and “You’ll have to go to the appeal court”.</span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">Mary did go to the Court of Appeal – which she told me was a “horrendous” experience – where she argued that the existence of the word “as” in the phrase “live together as husband and wife” made the law on succeeding to secure tenancies applicable to “unions which gave the appearance of two people living together in a kind of matrimonial state” and that must be taken to include same-sex unions. </span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">Mary’s claim, which sought to establish that cohabiting same-sex couples (who were not then legally permitted to marry) were analogous to unmarried different-sex couples, who “live together as husband and wife”, can be seen as one of the earliest attempts to establish that rights and benefits associated with marriage should extend to partners of the same sex.</span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">The Court of Appeal dismissed Mary’s claim, stating that ordinary men and women would not think there was any resemblance between a homosexual union and the state of living as husband and wife.</span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;"><b>Mary’s ECHR case</b></span></div><div><span style="font-family: arial;"><b><br /></b></span></div><div><span style="font-family: arial;"><div class="separator" style="clear: both; text-align: center;"><a href="https://1.bp.blogspot.com/-2kHW4FGcD6g/YRwKLgrkZOI/AAAAAAAACtY/G6H2FnbI09olVngpz0ObZ5eJOAWywP2WQCLcBGAsYHQ/s1592/Screenshot%2B2021-08-17%2Bat%2B20.03.43.png" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="230" data-original-width="1592" height="58" src="https://1.bp.blogspot.com/-2kHW4FGcD6g/YRwKLgrkZOI/AAAAAAAACtY/G6H2FnbI09olVngpz0ObZ5eJOAWywP2WQCLcBGAsYHQ/w400-h58/Screenshot%2B2021-08-17%2Bat%2B20.03.43.png" width="400" /></a></div><div class="separator" style="clear: both; text-align: left;"><br /></div><div class="separator" style="clear: both; text-align: left;">Mary decided to bring a case under the European Convention on Human Rights, arguing that she had been denied the right to respect for her private and family life, as well as for her home (under Article 8 of the Convention) and that she had been discriminated against (under Article 14 of the Convention). </div></span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">The European Commission of Human Rights dismissed Mary’s application, stating that a same-sex relationship fell outside of the scope of the “family life” limb of Article 8, would not consider the complaint under the “private life” limb of Article 8, and rejected the complaint under the “home” limb of Article 8. </span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">Mary’s treatment by the Commission at that time was not atypical, since complaints about discrimination on the grounds of sexual orientation were routinely rejected. </span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">In this case, the Commission recognized that </span><span style="font-family: arial;">the treatment accorded to Mary was different from the treatment she would have received if the partners had been of different sexes, but that this difference in treatment was the result of legislation designed to “protect the family” (meaning families made up of different-sex couples) and was therefore justified.</span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">The type of discrimination that Mary endured existed until it was eventually successfully challenged in the UK in 2002, and in Strasbourg in 2003.</span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;"><b>A lesbian rights hero</b></span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">I had the great privilege of meeting Mary in 2015, at her home, when I conducted an oral history interview with her for the <i><a href="https://goingtostrasbourg.com">Going to Strasbourg</a></i> project. After this interview, we stayed in touch, became firm friends, and spoke many times on the telephone. </span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">Mary was an incredibly lovely person. She was also an incredibly brave person. She was, to me, a hero and an inspiration; a shining example of someone who deeply cared about, and spoke out for, human dignity. </span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">The world should remember Mary Simpson, and all she stood for. She campaigned for human rights that we in the UK now enjoy, but many others around the world do not. She stood up to people who told her she was worth less than others, and that she mattered less than they did. </span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">Although Mary had been treated very cruelly by others she responded not with anger or bitterness, but with a quiet determination to live the life she wanted to live. She was kind to others, and had a deep-seated desire to live in a society that cherished the freedom for everyone to be themselves. As she told me: “I’m me. There are no two people like me. <i>I</i> am <i>me</i>. I will fight for my rights and I will keep on fighting until everybody gets their share of their rights”.</span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">These words from Mary are ringing in my ears today:</span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;"><i>You’ve got to keep chipping away at the paintwork, bit by bit, until you break through. I’m proud I did it. They walk about with gay pride, but I’ve got pride inside. I’m proud that I stuck my neck on the block and tried to get something done. It makes people realize that we can’t be trodden on. Because a lot of people think gays are the riff-raff of society, they’re the queer lot of society…and I thought, no, I’m not having it, I’ve got to do something to make people realize we’re still human beings. No matter which side of the fence we sit, we’re still human beings. I just can’t understand why people have to be so horrible to people, that’s what gets me. Because if you don’t do what they want, or toe the line, what do you do? You become a rebel. But I wasn’t a rebel without a cause, I had a cause. I always make sure I’ve got a cause before I’m a rebel, because that way you’re trying to help other people. That’s what I’ve always been trying to do, is help other people. If I’ve helped somebody on the way, you know, I’m glad. It’s better to do a good turn than a bad turn. It was hard going, but I think I have done something.</i></span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">Mary <i>did </i>do something, and she did it with courage, with conviction, with passion, and with warmth. </span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">Mary spent her final years in Calne, Wiltshire. If she was known for one thing in her local area it was for her love of animals, and particularly for her love of cats. She had a life-long preoccupation with taking in any stray animal and giving it a loving home. </span><span style="font-family: arial;">Home, perhaps because of her history, was very important to Mary.</span></div><div><b style="font-family: arial;"><br /></b></div><div><b style="font-family: arial;">Find out more about Mary</b></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;"><div class="separator" style="clear: both; text-align: center;"><a href="https://1.bp.blogspot.com/-8tRiPG3KiEg/YRwXqJjRQoI/AAAAAAAACtg/Ta-tffJkrGQ_IgTRh4v2ZjkVjt3uVgfHACLcBGAsYHQ/s1550/Screenshot%2B2021-08-17%2Bat%2B20.19.29.png" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="1550" data-original-width="1018" height="320" src="https://1.bp.blogspot.com/-8tRiPG3KiEg/YRwXqJjRQoI/AAAAAAAACtg/Ta-tffJkrGQ_IgTRh4v2ZjkVjt3uVgfHACLcBGAsYHQ/s320/Screenshot%2B2021-08-17%2Bat%2B20.19.29.png" width="210" /></a></div>I have uploaded pages from <i>Going to Strasbourg </i>on Mary's ECHR case <a href="https://drive.google.com/file/d/1g7-w5f06a6KsHnfutUz3vtGEX_Iu3STV/view?usp=sharing">here</a>, and also the pages containing her oral history account of the case <a href="https://drive.google.com/file/d/16T9YoIpq_1JRWsvOp0D12KTTPF73lErl/view?usp=sharing">here</a>.</span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">Hear Mary talk about the ECHR case, as well as Dr. Loveday Hodson's analysis of it, in the <i>Going to Strasbourg </i><a href="https://goingtostrasbourg.com/podcast/">podcast</a> (relevant section starts at 08.47).</span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">Read the judgment of the Court of Appeal on Mary's case <a href="http://www.bailii.org/ew/cases/EWCA/Civ/1984/3.html">here</a>.</span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">Read the decision of the European Commission of Human Rights on Mary's case <a href="http://hudoc.echr.coe.int/eng?i=001-596">here</a>.</span></div><div><span style="font-family: arial;"><br /><b>Postscript (20 August 2021)</b></span></div><div><span style="font-family: arial;"><b><br /></b></span></div><div><span style="font-family: arial;">Since writing this blog post, I have been so pleased to see Mary's pioneering work getting wider recognition:</span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">The Wiltshire Gazette and Herald republished my blog post <a href="https://www.gazetteandherald.co.uk/news/19520722.calnes-pioneering-lesbian-campaigner-mary-simpson-dies/">here</a>;</span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">Pink News published their own very nice tribute <a href="https://www.pinknews.co.uk/2021/08/19/mary-cunningham-simpson-lesbian-death/">here</a>;</span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">and the Canadian Broadcasting Corporation (CBC) produced a piece for radio about Mary <a href="https://www.cbc.ca/radio/asithappens/as-it-happens-the-thursday-edition-1.6146340/she-refused-to-leave-her-home-when-her-partner-died-her-case-paved-the-way-for-lgbtq-rights-1.6146401">here</a> (the broadcast is available in full <a href="https://www.cbc.ca/listen/live-radio/1-2-as-it-happens/clip/15861552-true-colours">here</a>, with the relevant section commencing at 09:35).</span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;"><br /> <br /><br /><br /></span></div>Paul Johnsonhttp://www.blogger.com/profile/03461850697230434763noreply@blogger.com0tag:blogger.com,1999:blog-7100925932021210247.post-48166642034051522542021-07-31T16:55:00.000+01:002021-07-31T16:55:11.157+01:00LGBT-related freedom of expression cases concerning Georgia and Russia<br /><span style="font-family: arial;"><div class="separator" style="clear: both; text-align: center;"><a href="https://1.bp.blogspot.com/-9dmFfxsUqZU/YQVrtDFqeKI/AAAAAAAACr8/e2wAAhdsMhgp7GKE6V9lyYkK_YncpKzVQCLcBGAsYHQ/s442/article.jpeg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="249" data-original-width="442" height="225" src="https://1.bp.blogspot.com/-9dmFfxsUqZU/YQVrtDFqeKI/AAAAAAAACr8/e2wAAhdsMhgp7GKE6V9lyYkK_YncpKzVQCLcBGAsYHQ/w400-h225/article.jpeg" width="400" /></a></div><div class="separator" style="clear: both; text-align: center;"><br /></div><div class="separator" style="clear: both; text-align: left;">The European Court of Human Rights has issued two judgments concerning LGBT issues and freedom of expression. </div><br />In <a href="http://hudoc.echr.coe.int/eng?i=001-211123"><i>Gachechiladze v Georgia</i></a> the Court considered the complaint of an applicant who produces condoms and who, on the basis of some of her designs, had become subject to administrative-offence proceedings, on the basis that they constituted unethical advertising. Some of the designs of the condom packaging expressed support of the LGBT community and, in this and other respects, the Court noted that the applicant’s brand appeared to have been aimed at initiating and/or contributing to a public debate concerning various issues of general interest. The Court found the applicant had suffered a violation of Article 10 of the Convention.<br /><br />In <i><a href="http://hudoc.echr.coe.int/eng?i=001-211349">Yartsev v Russia</a></i> the Court considered the conviction of the applicant, an LGBT activist, for shouting slogans at a public event. According to the applicant, he chanted anti‑discrimination slogans such as “No discrimination on grounds of sex and sexual orientation”. The police reported the applicant shouted “Stop abuse by cops” and “Down with the police State”. The Court found that the interference with the applicant’s right to freedom of expression and assembly was not “prescribed by law” and that there had been a violation of Article 10 of the Convention, interpreted in the light of Article 11.</span><div class="separator" style="clear: both; text-align: center;"><br /></div><br /><br />Paul Johnsonhttp://www.blogger.com/profile/03461850697230434763noreply@blogger.com0tag:blogger.com,1999:blog-7100925932021210247.post-76609604583828071582021-07-14T00:11:00.000+01:002021-07-14T00:11:05.947+01:00Russia must legally recognise same-sex relationships says European Court of Human Rights<div><div class="separator" style="clear: both; text-align: center;"><a href="https://1.bp.blogspot.com/-2eobxX8MIA4/YO4aws7OGFI/AAAAAAAACrk/swC_c7PdvOULeJO-SLRY7ZupgzgXx60xwCLcBGAsYHQ/s1536/russia-lgbt.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="1028" data-original-width="1536" height="268" src="https://1.bp.blogspot.com/-2eobxX8MIA4/YO4aws7OGFI/AAAAAAAACrk/swC_c7PdvOULeJO-SLRY7ZupgzgXx60xwCLcBGAsYHQ/w400-h268/russia-lgbt.jpg" width="400" /></a></div><span style="font-family: arial;"><div><span style="font-family: arial;"><br /></span></div>The Third Section of the European Court of Human Rights has today (13th July 2021) issued its judgment in </span><i style="font-family: arial;"><a href="http://hudoc.echr.coe.int/eng?i=001-211016">Fedotova and Others v Russia</a></i><span style="font-family: arial;">. </span></div><span style="font-family: arial;"><br />The case concerns a lack of opportunity for the applicants, three same-sex couples, to have their relationships formally registered in Russia, which, they claimed, amounted to discrimination against them on the grounds of their sexual orientation. I wrote about the case <a href="http://echrso.blogspot.com/2016/05/european-court-of-human-rights.html">here</a> in 2016 when the Court communicated it. <br /><br />In today's historic judgment, the Court has held that the lack of any opportunity to have same-sex relationships formally acknowledged in Russia is a violation of Article 8 of the European Convention on Human Rights. <br /><br /><b>The facts<br /></b><br />On various dates between 2009 and 2013 the applicants, </span><span style="font-family: arial;">three same-sex couples, </span><span style="font-family: arial;">gave notice of their intended marriages to their local departments of the Register Office.<br /><br />These notices were dismissed by the authorities, who relied on Article 1 of the Russian Family Code, which referred to marriage as a “voluntary marital union between a man and a woman”. Since the couples were not made up of “a man and a woman”, their applications for marriage could not be processed.<br /><br />The applicants unsuccessfully challenged these decisions in the domestic courts.<br /><br /><b>Complaints to the Court</b><br /><br />The applicants complained to the Court that they had been discriminated against on the grounds of their sexual orientation because they had no means of securing a legal basis for their relationships as it was impossible for them to enter into marriage. <br /><br />The applicants also complained that they had no other possibility to gain formal acknowledgment for their relationships. <br /><br />They relied on Article 8 of the Convention alone, and on Article 14 taken in conjunction with Article 8 of the Convention. <br /><br /><i><b>Admissibility</b></i> <br /><br />The Government claimed that the applicants’ complaints were manifestly ill-founded. The Government stated that the domestic courts ruled against the applicants to protect “interests of a traditional family unit”, which is subject to the special protection by the State. They also stated that a marriage is a “historically determined union between a person of male and a person of female sex, which regulates relationship between the two sexes and determines a status of a child in society”.<br /><br />The Government argued that legal issues related to same-sex unions raise a number of legal disputes in Europe and there is no consensus regarding the formal acknowledgment of same-sex unions. The regulation of the matter should therefore be left to the Contracting State. They argued that the legal practice in European countries should not influence Russia, which should be given an opportunity to develop its policy in line with its traditional understanding of marriage and its unique historical path.<br /><br />The Government further claimed that the formal acknowledgment of same-sex unions would be contrary to the crucial principle of protecting minors from the promotion of homosexuality. It may harm their health, morals and create in them “a distorted image of the social equivalence of traditional and non-traditional marital relations”.<br /><br />In this respect the Government quoted research, by the Russian Public Opinion Research Center in 2015, that found that 15% of Russian population considered that homosexuals were ordinary people, but preferred not to have any contacts with them; 20% believed that homosexuality was a medical disease; 15% considered homosexuality to be “a social disease”; and 20% treated homosexuals as dangerous people which should be isolated from society. The number of people who were opposed to same-sex marriages increased from 38% in 1995 to 80% in 2015.<br /><br />The Court paid no attention to these arguments by the Government at this stage. It simply stated that the facts of the case fell within the scope of the applicants’ “private life” and “family life” within the meaning of Article 8 of the Convention and, since the complaints were neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention, must therefore be declared admissible.<br /><br /><b><i>Merits</i></b><br /><br /><i>General principles</i><br /><br />The Court began its consideration by stating that Article 8 of the Convention may impose on a State certain positive obligations to ensure effective respect for the rights protected by this Article. It added that the notion of “respect” is not clear-cut, especially as far as positive obligations are concerned and that the notion’s requirements will vary considerably from case to case. Nonetheless, the Court stated that certain factors have been considered relevant for the assessment of the content of those positive obligations on States including, of relevance to this case, a situation where there is "discordance between social reality and the law" (§ 45). <br /><br />The Court recalled that the principles applicable to assessing a State’s positive and negative obligations under the Convention are similar. Regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole. Moreover, in implementing their positive obligations under Article 8 the States enjoy a certain margin of appreciation and a number of factors must be taken into account when determining the breadth of that margin. In the context of “private life” the Court recalled that it has considered that where a particularly important facet of an individual’s existence or identity is at stake the margin allowed to the State will be restricted.<br /><br />The Court recalled its settled jurisprudence that same-sex couples are just as capable as different-sex couples of entering into committed relationships. As such, they are in a relevantly similar situation to a different-sex couple as regards their need for formal acknowledgment and protection of their relationships.</span><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;"><i>Application of general principles to the case</i></span></div><div><span style="font-family: arial;"><i><br /></i>The Court reiterated that Article 8 enshrines the right to respect for private and family life and, as such, does not explicitly impose on the Contracting States an obligation to formally acknowledge same-sex unions. However, Article 8 implies the need for striking a fair balance between the competing interests of same-sex couples and of the community as a whole. <br /><br />Having identified the individuals’ interests at play, the Court stated that it must proceed to weigh them against the community interests. </span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">As such, given the nature of the applicants’ complaint, it was for the Court to determine whether Russia failed to comply with the positive obligation to ensure respect for the applicants’ private and family life, in particular through the provision of a legal framework allowing them to have their relationships recognised and protected under domestic law.<br /><br />The Court noted that the applicants, as other same-sex couples, had no means to have their relationships recognised by law. That situation, the Court stated,<br /><br />"creates a conflict between the social reality of the applicants who live in committed relationships based on mutual affection, and the law, which fails to protect the most regular of “needs” arising in the context of a same-sex couple. That conflict can result in serious daily obstacles for same-sex couples" (§ 51).<br /><br />The Court noted the Government’s assertion that the majority of Russians disapprove of same-sex unions. However, the Court recalled its settle view that it would be incompatible with the underlying values of the Convention if the exercise of Convention rights by a minority group were made conditional on its being accepted by the majority. <br /><br />Moreover, the Government could not rely on arguments about protecting minors from displays of homosexuality because that was based on the domestic legal provision criticised by the Court in the case of <i><a href="http://echrso.blogspot.com/2017/06/russian-homosexual-propaganda-laws-are.html">Bayev v Russia</a></i>. <br /><br />The Court stated that it could not "discern any risks for traditional marriage which the formal acknowledgment of same-sex unions may involve, since it does not prevent different-sex couples from entering marriage, or enjoying the benefits which the marriage gives" (§ 54).<br /><br />In the light of this, the Court stated that it could not identify "any prevailing community interest against which to balance the applicants’ interests" and, on this basis, found that the Government had "failed to justify the lack of any opportunity for the applicants to have their relationship formally acknowledged" (§ 55). As such, a fair balance between competing interests had not been struck.<br /><br />The Court acknowledged that the Government has a margin of appreciation to choose the most appropriate form of registration of same-sex unions, taking into account its specific social and cultural context (for example, civil partnership, civil union, or civil solidarity act) but that the Government had overstepped that margin because no legal framework capable of protecting the applicants’ relationships as same-sex couples was available. <br /><br />There had therefore been, the Court concluded, a violation of Article 8 of the Convention.<br /><br />The Court considered that it was not necessary to examine whether there had also been a violation of Article 14 in conjunction with Article 8 of the Convention.<br /><br /><b>Brief commentary<br /></b><br />This judgment is historic and extremely important. </span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">The judgment requires same-sex couples in Russia to be afforded the opportunity to have their relationships legally recognised by, for example, civil partnership, civil union, or civil solidarity act. <br /><br />But the judgment extends beyond Russia because it effectively establishes a positive obligation on all States to grant same-sex couples legal recognition of their relationships in a form other than marriage. In addition to Russia, this will impact on the other Contracting States that do not legally recognise same-sex relationships (of the 47 Contracting States, as of June 2021, 16 States legally recognise and perform same-sex marriages, and 14 States legally recognise some form of civil union for same-sex couples).<br /><br />One of the most important aspects of the judgment, therefore, is that it has definitively established a positive obligation under Article 8 regarding the legal recognition of same-sex relationships. To establish this positive obligation the Court relied upon its judgment in <a href="http://echrso.blogspot.com/2015/07/ground-breaking-judgment-of-european.html"><i>Oliari and Others v Italy</i></a>. In <i>Oliari</i> the Court held that the Italian government had "failed to fulfil their positive obligation to ensure that the applicants [same-sex couples] have available a specific legal framework providing for the recognition and protection of their same-sex unions" (§ 185). <br /><br />The crucial question arising from the <i>Oliari </i>judgment was whether the Court would impose this positive obligation on other States. The answer to that question was not straightforward because the judgment in <i>Oliari</i> was crafted in such a way, as Judges Mahoney, Tsotsoria and Vehabović pointed out, to potentially "limit [the] finding of the existence of a positive obligation to Italy and to ground [this in] a combination of factors not necessarily found in other Contracting States". <br /><br />Today's judgment makes clear that the positive obligation established in <i>Oliari</i> does extend to all Contracting States and that States have very little margin of appreciation in respect of that obligation. The result is that States are under an obligation to provide same-sex couples with access to a legal framework (not marriage) that gives legal recognition to their relationships.<br /><br />A further notable feature of the judgment is the sociological emphasis it places on the relationship between "social reality and the law". The judgment acknowledges the damage that can be done to LGBT people who live in contexts in which the law does not acknowledge and support the basic lived reality of those people.<br /><br />My criticism of the judgment is the same criticism I had when the Court communicated the case back in 2016, which I expressed <a href="http://echrso.blogspot.com/2016/05/european-court-of-human-rights.html">here</a>, and it concerns the failure of the Court to engage with the issue of marriage under Article 12 of the Convention. The Court did not even communicate the case under Article 12 of the Convention which was striking given that the applicants' complaints concerned their inability to marry. It was unclear whether the omission of Article 12 from the communication was the choice of the applicants or the Court. Certainly, two applicants, Ms. Fedotova and Ms. Shipitko invoked Article 12 in the domestic courts in their appeal against the decision to refuse their application to marry. However, in the Court's communication it stated:<br /><br />"The applicants in substance complained under Article 8 of the Convention alone and under Article 14 of the Convention taken in conjunction with Article 8 of the Convention that they had been discriminated against on the grounds of their sexual orientation because they had no means of securing a legal basis for their relationship as it was impossible for them to enter into marriage. They also had no other possibility to gain legal recognition for their relationship."<br /><br />It remains unclear, therefore, whether the Court omitted Article 12 from the complaint when determining its "substance", or whether the applicants themselves decided not to raise an Article 12 point. If it was the Court's decision then I would see this as further evidence that the Court regards Article 12, for all practical purposes, as inapplicable to same-sex couples (see <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3136642">here</a> for a broader discussion of this). Even if the applicants chose not to make an Article 12 complaint, the Court could have examined the case under Article 12 of its own volition. The fact that the Court paid no direct attention to whether the central fact that underpinned the case - that same-sex couples were denied access to marriage - amounted to a violation of Article 12 represents another opportunity missed to address this fundamental aspect of discrimination in the majority of European societies.</span></div>Paul Johnsonhttp://www.blogger.com/profile/03461850697230434763noreply@blogger.com0tag:blogger.com,1999:blog-7100925932021210247.post-36672370061720594352021-07-02T21:36:00.003+01:002021-07-02T21:36:54.975+01:00Relationships education, SOGI content, and the ECHR<div class="separator" style="clear: both; text-align: center;"><a href="https://1.bp.blogspot.com/-JDr-sDftMnY/YN92acuEPuI/AAAAAAAACq0/4ibS2waSD2w5tscQ2AgxE10Q5cIL82IewCLcBGAsYHQ/s1632/Screenshot%2B2021-07-02%2Bat%2B21.25.14.png" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="1632" data-original-width="1134" height="400" src="https://1.bp.blogspot.com/-JDr-sDftMnY/YN92acuEPuI/AAAAAAAACq0/4ibS2waSD2w5tscQ2AgxE10Q5cIL82IewCLcBGAsYHQ/w278-h400/Screenshot%2B2021-07-02%2Bat%2B21.25.14.png" width="278" /></a></div><br />The <i>European Convention on Human Rights Law Review</i> has published my article, co-authored with Dr Silvia Falcetta, on "The Inclusion of Sexual Orientation and Gender Identity in Relationships Education: Faith-Based Objections and the European Convention on Human Rights".<br /><br />Here is the abstract:<br /><br /><i>All primary schools in England are under a statutory requirement to provide "relationships education", which includes "lgbt content". The inclusion of content relating to sexual orientation and gender identity has attracted faith-based opposition. Such opposition, which is based on assertions about relationships education interfering with the right of parents to ensure that the education of their children is in conformity with their religious convictions, is likely to lead to legal action in the English courts and perhaps the European Court of Human Rights. This article anticipates the claims that would be made in any such legal action and critically interrogates them through the lens of the European Convention on Human Rights.</i><br /><br />The article can be downloaded here: <a href="https://brill.com/view/journals/eclr/aop/article-10.1163-26663236-bja10020/article-10.1163-26663236-bja10020.xml">https://brill.com/view/journals/eclr/aop/article-10.1163-26663236-bja10020/article-10.1163-26663236-bja10020.xml<br /></a><br />Access to the article is free until 31 December 2021, using access token ECLR4U.<br /><div><div><br /></div><div><br /></div></div>Paul Johnsonhttp://www.blogger.com/profile/03461850697230434763noreply@blogger.com0tag:blogger.com,1999:blog-7100925932021210247.post-74052712795994887642021-06-20T18:56:00.000+01:002021-06-20T18:56:24.527+01:00LGBT reports and instruments from the Congress of Local and Regional Authorities<div class="separator" style="clear: both; text-align: center;"><a href="https://1.bp.blogspot.com/-ehvlTkvbZ30/YM9_0njZJgI/AAAAAAAACqk/lRNtzrbv06MW6OYTIjCEoOPObSP5EN7PQCLcBGAsYHQ/s2144/Screenshot%2B2021-06-20%2Bat%2B18.49.53.png" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="454" data-original-width="2144" height="136" src="https://1.bp.blogspot.com/-ehvlTkvbZ30/YM9_0njZJgI/AAAAAAAACqk/lRNtzrbv06MW6OYTIjCEoOPObSP5EN7PQCLcBGAsYHQ/w640-h136/Screenshot%2B2021-06-20%2Bat%2B18.49.53.png" width="640" /></a></div><br /><span style="font-family: arial;">The <a href="https://www.coe.int/en/web/congress/home">Congress of Local and Regional Authorities</a> - an institution of the Council of Europe, responsible for strengthening local and regional democracy in its 47 member states - has issued two comprehensive reports concerning LGBT+ issues, and a Recommendation and two Resolutions. <br /><br /><b>Protection of LGBTI people in the context of rising anti-LGBTI hate speech and discrimination: the role of local and regional authorities</b><br /><br />This <a href="https://rm.coe.int/protecting-lgbti-people-in-the-context-of-rising-anti-lgbti-hate-speec/1680a28860">report</a> draws attention to the situation of LGBTI people and the increasing contestation of their rights recognition and identity, reminding local and regional authorities that the protection of these rights is essential to strengthen social cohesion and democracy. It outlines different ways in which backsliding on international commitments or adopted legislation in this respect occurs and examines how this negative trend has affected the lives of LGBTI people, paying particular attention to the health and well-being of LGBTI youth. The report also provides good practice examples from cities and regions that have adopted policies and legislation and taken action in defense of LGBTI people’s rights.<br /><br />In a <a href="https://rm.coe.int/resolution-470-2021-en-protection-of-lgbti-people-current-affairs-comm/1680a2dfe6">resolution</a>, the Congress reminds local and regional authorities of their role in fighting hatred and discrimination against LGBTI people and the violations of their rights. It calls on them to mainstream LGBTI equality in their policies and to introduce legislation forbidding hate speech and crimes, inviting them to monitor progress of these policies through data collection. The report provides local and regional authorities with concrete policy recommendations to promote the social rights, inclusion, and well-being of LGBTI citizens and to ensure the safety of LGBTI youth at school.<br /><br />In a <a href="https://rm.coe.int/recommendation-458-2021-en-protection-of-lgbti-people-current-affairs-/1680a2dde3">recommendation</a>, the Congress invites governments of member States to develop national action plans on anti-discrimination and LGBTI inclusion and to gather data regarding these issues, in addition to implementing the recommendations, resolutions and judgements of Council of Europe bodies.<br /><br /><b>The role of local authorities with regard to the situation and rights of LGBTI people in Poland</b><br /><br />This <a href="https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=0900001680a287d7">report </a>considers that, since 2019, over 90 Polish local and regional authorities have passed resolutions declaring themselves free from so-called “LGBT-ideology” or adopted “Local government Charters of the Rights of the Family”, amid an increasingly polarised debate around issues related to LGBTI people and growing hate speech towards them. To understand these developments, and at the request of two members of the Polish Parliament, the Congress mandated a delegation to carry out a remote fact-finding mission, which took place from 2 to 3 November 2020. It met with interlocutors from the Polish government, the Ombudsman, national and sub-national elected representatives as well as NGOs.<br /><br />In a <a href="https://rm.coe.int/resolution-471-2021-en-lgbti-people-in-poland-current-affairs-committe/1680a2ddae">resolution</a>, drawing upon the conclusions of the fact-finding report adopted by the Current Affairs Committee on 17 February 2021, the Congress calls on Polish local and regional authorities to withdraw all declarations and resolutions against so-called “LGBT ideology” and all analogous texts regardless of their title. Moreover, the Congress urges local and regional authorities in Poland to ensure the protection of vulnerable groups, with particular attention to the deleterious impact of hate speech on the lives of LGBTI people.</span>Paul Johnsonhttp://www.blogger.com/profile/03461850697230434763noreply@blogger.com0tag:blogger.com,1999:blog-7100925932021210247.post-71234268200181902242021-06-16T21:57:00.000+01:002021-06-16T21:57:16.918+01:00New article on the "mega-politics" of LGBT human rights and the ECHR<div class="separator" style="clear: both; text-align: center;"><a href="https://1.bp.blogspot.com/-SWuF6SNAo08/YMplAzOgZAI/AAAAAAAACqE/NVIk33YBgzcyzTzPfnqz3XplCDubgc9dACLcBGAsYHQ/s465/AP358696276477.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="270" data-original-width="465" height="233" src="https://1.bp.blogspot.com/-SWuF6SNAo08/YMplAzOgZAI/AAAAAAAACqE/NVIk33YBgzcyzTzPfnqz3XplCDubgc9dACLcBGAsYHQ/w400-h233/AP358696276477.jpg" width="400" /></a></div><br /><p><a href="https://law.duke.edu/fac/helfer/" style="font-family: arial;">Laurence Helfer</a><span style="font-family: arial;"> (Duke University) and </span><a href="https://www.law.lsu.edu/directory/profiles/clare-ryan/" style="font-family: arial;">Clare Ryan</a><span style="font-family: arial;"> (</span><span style="background-color: white; caret-color: rgb(80, 80, 80); font-family: arial;">Louisiana State University) have published a new article titled "</span><span style="background-color: white; font-family: arial;">LGBT Rights as Mega-politics: Litigating before the ECtHR".</span></p><p><span style="font-family: arial;"><span style="background-color: white;">Here is the abstract:</span></span></p><p><span style="font-family: arial;"><span style="background-color: white; caret-color: rgb(80, 80, 80); font-size: 16px;">Contestations over LGBT rights are now occurring worldwide at multiple levels of governance. The European Court of Human Rights (ECtHR or Strasbourg Court) has become a focal point for these contestations. This article, part of a symposium in Law and Contemporary Problems on International Courts and the Adjudication of Mega-Politics, analyzes the increase in LGBT rights cases before the ECtHR. We argue that two divergent forces are pushing these cases to Strasbourg. First, the Court has dynamically interpreted the European Convention on Human Rights to expand protections for gay men and lesbians by taking account of progressive trends in national laws and policies. Second, the ECtHR has received numerous complaints against Russia, Eastern European, and former Soviet states that routinely violate the bodily integrity and political rights of sexual minorities.</span><br style="box-sizing: border-box; caret-color: rgb(80, 80, 80); font-size: 16px;" /><br style="box-sizing: border-box; caret-color: rgb(80, 80, 80); font-size: 16px;" /><span style="background-color: white; caret-color: rgb(80, 80, 80); font-size: 16px;">To understand these trends, we coded all ECtHR lesbian and gay rights cases. We divide the case law into three periods—1950 to 1998, 1999 to 2009, and 2010 to 2020—that mark the Court’s evolving approach to these rights. We identify the number of cases in each period, describe important doctrinal trends, and discuss watershed cases that mark shifts in ECtHR jurisprudence. We then pose three questions to investigate the explosion of LGBT legal issues before the ECtHR over the last decade: Why the increase? Why Strasbourg? And why LGBT rights? We conclude by considering the implications of our findings for the ECtHR as a forum for mega-political contestation.</span></span></p><p><span style="font-family: arial;"><span style="background-color: white; caret-color: rgb(80, 80, 80); font-size: 16px;">The article is available, open access, here: </span><a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3867604">https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3867604</a></span></p>Paul Johnsonhttp://www.blogger.com/profile/03461850697230434763noreply@blogger.com0tag:blogger.com,1999:blog-7100925932021210247.post-11526888305018403482021-06-01T23:34:00.000+01:002021-06-01T23:34:00.273+01:00Failure to adequately deal with homophobic verbal abuse and threats in Romania is a violation of ECHR<div><div class="separator" style="clear: both; text-align: center;"><a href="https://1.bp.blogspot.com/-OSDLdN3nulA/YLadazXL0KI/AAAAAAAACpg/v-70P7wlQR87uc7j9m7ojTu4507Ij-_4QCLcBGAsYHQ/s512/unnamed.png" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="512" data-original-width="512" height="400" src="https://1.bp.blogspot.com/-OSDLdN3nulA/YLadazXL0KI/AAAAAAAACpg/v-70P7wlQR87uc7j9m7ojTu4507Ij-_4QCLcBGAsYHQ/w400-h400/unnamed.png" width="400" /></a></div><span style="font-family: arial;">The Fourth Section of the European Court of Human Rights has today given its judgment in the case of </span><i style="font-family: arial;"><a href="http://hudoc.echr.coe.int/eng?i=001-210362">Association ACCEPT and Others v Romania</a></i><span style="font-family: arial;">. </span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">The case concerns Romania’s failure to protect the applicants - </span><span style="font-family: arial;">an LGBT non-profit association (Association ACCEPT) and five Romanian nationals (Alexandra Cândea, Alexandra Mihaela Carastoian, Ioana Ramona Filat, Diana Elena Mateescu, and Claudia Stănescu) - </span><span style="font-family: arial;">from homophobic verbal abuse and threats, to conduct a subsequent effective investigation into the applicants’ complaint, and the consequences of these incidents on the applicants’ right to freedom of peaceful assembly.</span></div><div><span style="font-family: arial;"><br />The applicants relied on Articles 3, 8, 11, 13 and 14 of the Convention, as well as on Article 1 of Protocol No. 12 to the Convention.</span></div><div><span style="font-family: arial;"><br />The Court found a violation of Article 14 of the Convention taken in conjunction with Article 8, and a violation of Article 14 of the Convention taken in conjunction with Article 11. </span></div><div><span style="font-family: arial;"><br /><b>The facts</b></span></div><div><span style="font-family: arial;"><b><br /></b><i>The incident<br /></i><br /></span></div><div><span style="font-family: arial;">In February 2013, ACCEPT organised a series of cultural events to celebrate LGBT History Month. The programme included the screening of a movie portraying a same-sex family in a cinema situated in the National Museum for the Romanian Peasant in Bucharest. </span></div><div><span style="font-family: arial;"><br />ACCEPT became aware that an “online mobilisation” was taking place on social media platforms calling for a counter-demonstration during the screening at the Museum. They contacted the police and ten police officers from Bucharest police station no. 2, together with the head of that station, arrived on the premises to provide protection, and were later joined by a team of seven gendarmes.</span></div><div><span style="font-family: arial;"><br />About twenty people attended the public screening, including the individual applicants. Fifty more people entered the screen room, some of them carrying flagpoles, and disturbed the screening by shouting remarks such as “death to homosexuals”, “faggots” or “you filth”, and insulting and threatening attendees of the screening, including the individual applicants. </span></div><div><span style="font-family: arial;"><br />Some of the intruders displayed fascist and xenophobic signs and brandished the flag of Everything for the Country (Totul pentru ţară), a Romanian far-right party (since dissolved by court order). The intruders seemed to be associated with a far‑right movement, the New Right (Noua Dreaptǎ), which is active in political life and is openly opposed, among other things, to same-sex marriage and same-sex adoptions.</span></div><div><span style="font-family: arial;"><br />The organisers alerted the police officers who had been stationed outside the screening room. The police officers entered the room, confiscated some flags from the intruders and then left the room, despite the organisers’ request to remain.</span></div><div><span style="font-family: arial;"><br />The intruders opposed the screening as they considered that the movie damaged national dignity because of its homosexual theme, a feeling that had been aggravated by the choice of venue – a place of history and tradition. They blocked the projector, so the screening could not continue. The organisers halted the screening and switched the lights on.</span></div><div><span style="font-family: arial;"><br />As people started leaving the room, the police officers stationed in the corridor checked the identity papers of twenty-nine individuals, the majority of them from the group opposing the screening. </span></div><div><span style="font-family: arial;"><br />The screening was rescheduled and took place in the same location in March 2013 without incident.</span></div><div><span style="font-family: arial;"><br /><i>Criminal complaint</i></span></div><div><span style="font-family: arial;"><br />On 5 March 2013, ACCEPT lodged a criminal complaint about the incident with Bucharest police section no. 2, alleging incitement to discrimination, abuse of office by the restriction of rights, and the displaying of fascist, racist or xenophobic symbols in public. </span></div><div><span style="font-family: arial;"><br />The complaint was lodged on behalf of ten individuals (including the individual applicants in this case) who had participated in the screening of February 2013. Those individuals complained that unidentified individuals had interrupted the screening, uttered threats, displayed fascist symbols, and filmed, photographed and videotaped the participants without their permission. </span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">They furthermore complained that the authorities had failed to take adequate measures to prevent and stop the behaviour of the violent group and to allow the victims’ peaceful assembly to continue. </span></div><div><span style="font-family: arial;"><br />ACCEPT argued that those acts had been motivated by hatred towards homosexuals. ACCEPT appended information about the alleged perpetrators – details which, it believed, would contribute to the identification of the perpetrators and the roles that they had played in the incident and also attached to the complaint a video of the incident, which had been posted on the Internet.</span></div><div><span style="font-family: arial;"><br />In a decision of 24 June 2014, the military prosecutor’s office found that the gendarmes had been unable to create an action plan for dealing with the incident of February 2013 because ACCEPT had failed to seek the necessary pre-authorisation for that event. The prosecutor found that the gendarmes had complied with their obligations; the prosecutor then concluded the investigation in that respect.</span></div><div><span style="font-family: arial;"><br />In a decision of 14 October 2014, the prosecutor’s office attached to the Bucharest Court of Appeal ended its investigation on the grounds that the acts complained of did not constitute criminal offences. The description of the incident, which was depicted as “an exchange of views” between the participants, was similar to that contained in a report by the police.</span></div><div><span style="font-family: arial;"><br />For the next three years, the applicants sought to challenge the prosecutor’s decision, without success. </span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;"><b>Complaints to the Court </b></span></div><div><span style="font-family: arial;"><b><br /></b><b><i>Article 3 taken alone or in conjunction with Article 14</i></b></span></div><div><span style="font-family: arial;"><br />The Article 3 complaint related to the psychological effect that the incident of February 2013 allegedly had on the applicants, as members of the LGBT community.</span></div><div><span style="font-family: arial;"><br />The Government argued that the treatment allegedly suffered by the individual applicants had not reached the threshold of Article 3 of the Convention. They pointed out that no physical harm had been caused to the individual applicants and that no forensic certificates attested to any consequences suffered by them in the aftermath of the incident in question. As for the alleged mental effects on the applicants, they argued that there were no special circumstances regarding the sex, age or state of health of the applicants that could have justified deeming that the treatment allegedly suffered fell within the scope of Article 3.</span></div><div><span style="font-family: arial;"><br />The individual applicants contended that the infliction of physical harm was not a pre-condition for treatment being ruled “degrading”. Moreover, the aggression that they had suffered had not turned into physical violence only because the first applicant had decided to suspend the event – a decision that had been taken in order to protect the participants. They submitted that, in their view, the degree of severity of that treatment should be assessed in the light of the fact that the acts of aggression had been directed against the LGBT community and had been part of a series of homophobic acts of violence coordinated by the extremist group the “New Right”, which was notorious in Romania for its acts of violence – especially against the LGBT community. </span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">The individual applicants also stated that the intruders had outnumbered the participants in the event by a factor of two to one, and the applicants had felt trapped inside the closed dark space of the cinema, had been afraid for their own safety and lives, and had been verbally abused, while the police had refused to intervene and had seemed to even condone the intruders’ actions. The ensuing feelings of fear, anguish and humiliation had continued even after the incident, as the aggressors had videotaped the applicants against their will and had posted those videos online, thus exposing them to additional stigma and hate speech.</span></div><div><span style="font-family: arial;"><br />The Court stated that the applicants had not pointed to any facts that could enable the Court to find that the level of mental suffering that they experienced as a result of the incident – or as a result of the manner in which the investigation into that incident took place – came close to the level that the Court has found in other similar cases to engage the State’s responsibility under Article 3 of the Convention with respect to situations of abuse on discriminatory grounds.</span></div><div><span style="font-family: arial;"><br />The Court stated that the applicant’s situation stood in contrast to <i><a href="http://hudoc.echr.coe.int/eng?i=001-154400">Identoba and Others v Georgia</a></i> and to <i><a href="http://hudoc.echr.coe.int/eng?i=001-161982">M.C. and A.C. v. Romania</a></i>, where verbal abuse and serious threats directed against the applicants – marchers promoting LGBT rights – were followed by actual physical assault on some of the applicants in circumstances in which they were surrounded and outnumbered by their assailants.</span></div><div><span style="font-family: arial;"><br />The Court stated that although the counter-demonstrators outnumbered and surrounded the applicants, they were continuously monitored by the police, albeit from the corridor outside the screening room where the incident took place. Moreover, no acts of physical aggression took place between the applicants and the counter‑demonstrators. And the verbal abuse, although openly discriminatory and performed within the context of actions that showed evidence of a pattern of violence and intolerance against a sexual minority, were not so severe as to cause the kind of fear, anguish or feelings of inferiority that are necessary for Article 3 to come into play.<br /><br /></span></div><div><span style="font-family: arial;">On this basis, the Court found that the minimum level of severity required in order for the issue to fall within the scope of Article 3 of the Convention had not been attained and rejected the complaint as being manifestly ill-founded.</span></div><div><span style="font-family: arial;"><br /><b><i>Article 8 taken alone or in conjunction with Article 14</i></b><br /><br /></span></div><div><span style="font-family: arial;">The Court gave careful consideration to several issues concerning the admissibility of this aspect of the application, but declared it admissible in respect of the individual applicants (and in respect of Article 1 of Protocol No. 12 to the Convention). <br /><br /></span></div><div><span style="font-family: arial;">The individual applicants argued that the authorities had been motivated by their own bias and prejudice against the LGBT community both when they had failed to intervene to stop the homophobic attacks of February 2013 and when they had failed to investigate the incident.<br /><br /></span></div><div><span style="font-family: arial;">The Government pointed out that the protection afforded against hate crimes had been previously enhanced. The police had not intervened to stop the “discussions between the two parties” because there had been no need for such an intervention. Moreover, the fact that the case had been discontinued for lack of evidence did not render the investigation ineffective. <br /><br /></span></div><div><span style="font-family: arial;">At the outset, the Court observed that the applicants’ complaint was twofold: on the one hand, they argued that the authorities (the police and gendarmes) had failed to protect them during the incident of February 2013, and, on the other hand, that the authorities (the prosecutor’s office and the courts) had failed to conduct an effective investigation which would have taken into account the homophobic connotations of the incident. The Court examined these aspects separately.</span></div><div><span style="font-family: arial;"><br />In respect of the obligation to protect, the Government argued that the police had been unable to intervene because the organisers had failed to properly secure prior authorisation for the event, but the Court stated that it could not see the relevance of this, and that the authorities (police officers and gendarmes) were present in sufficient numbers on the premises from the beginning of the incident. The Court stated that the police officers and gendarmes did not intervene effectively, despite them being aware of the views and opinions being manifested by the intruders and having heard the contents of the slurs uttered by them and, consequently, did not prevent the individual applicants from being bullied and insulted by the intruders. Subsequent reports drafted by the police and gendarmes contained no reference to the homophobic insults suffered by the individual applicants and described the incident in terms that completely disregarded any such manifestations of homophobia. As a result, the Court concluded that the authorities failed to correctly assess the risk incurred by the individual applicants at the hands of the intruders and to respond adequately in order to protect the individual applicants’ dignity against homophobic attacks by a third party.</span></div><div><span style="font-family: arial;"><br />In respect of the obligation to investigate, the Court examined a number of aspects of how the national authorities responded, including that the authorities consistently referred to the verbal abuse that was targeted against the individual applicants as constituting mere “discussions” or an “exchange of views”, and that no weight was attached to the fact that the organisation that seemed to have been behind the attacks was notoriously opposed to same-sex relations or that the homophobic slurs in question had been uttered against the individual applicants. The Court stated, therefore, that the authorities did not take reasonable steps to investigate whether the verbal abuse had been motivated by homophobia. As such, the Court concluded that the authorities failed to discharge their positive obligation to investigate in an effective manner whether the verbal abuse directed towards the individual applicants constituted a criminal offence motivated by homophobia and, because of this, the authorities showed their own bias towards members of the LGBT community.</span></div><div><span style="font-family: arial;"><br />In the light of these findings, the Court considered it established that the authorities had failed to offer adequate protection in respect of the individual applicants’ dignity (and more broadly, their private life), and to effectively investigate the real nature of the homophobic abuse directed against them. The Court therefore considered it established that the individual applicants suffered discrimination on the grounds of their sexual orientation and, consequently, that there had been a violation of Article 14 taken in conjunction with Article 8 of the Convention.</span></div><div><span style="font-family: arial;"><br />The Court also concluded that it did not need to examine the complaint under Article 8 of the Convention alone, and that it was not necessary to examine separately whether there had also been a violation of Article 1 of Protocol No. 12 to the Convention.</span></div><div><span style="font-family: arial;"><br /><b><i>Article 11 alone or in conjunction with Article 14</i></b></span></div><div><span style="font-family: arial;"><br />The applicants complained under Article 11 of the Convention, taken alone and in conjunction with Article 14, of the authorities’ failure to protect their right to freedom of peaceful assembly and to investigate the actions that had led to the interruption of the event organised by ACCEPT, and the Court declared this complaint admissible. </span></div><div><span style="font-family: arial;"><br />The applicants contended that the aim of the counter-demonstration had been to stop the event, and not to participate in a democratic debate. It had, inter alia, been aimed at inciting discrimination and violence, it had been held to oppose the rights of others, and it had hindered the normal course of a peaceful assembly. Despite those infractions to the law, the authorities had failed to intervene, and it had been no longer possible for the event to take place.</span></div><div><span style="font-family: arial;"><br />The Government argued that those who chose to exercise the freedom to manifest their views or expose their membership of a minority group could not reasonably expect to be exempt from all criticism. Specifically, the Government pointed out that the police had arrived in great numbers within a short space of time at the place where the incident was developing, in order to ensure the participants’ protection. Moreover, the authorities had conducted a thorough investigation into possible discriminatory reasons for the counter‑demonstration, and that the decision to halt the screening had been taken by the applicant association and had not been imposed by the police or the administration of the Museum.</span></div><div><span style="font-family: arial;"><br />The Court stated at the outset that the disruption of the screening of February 2013 undoubtedly amounted to an interference with the applicants’ right to freedom of peaceful assembly guaranteed by Article 11. The Court stated that, all in all, the domestic authorities failed to ensure that the event of February 2013 could take place peacefully by sufficiently containing the homophobic counter‑demonstrators. Because of their failures in this regard, the authorities fell short of their positive obligations under Article 14 taken in conjunction with Article 11 of the Convention. </span></div><div><span style="font-family: arial;"><br />Again, the Court did not feel that it was necessary to examine separately the admissibility and merits of the complaint under Article 1 of Protocol No. 12 to the Convention.</span></div><div><span style="font-family: arial;"><br /><i><b>Article 13</b></i></span></div><div><span style="font-family: arial;"><b><i><br /></i></b>The Court did not feel it was necessary to examine separately the admissibility and merits of the complaints raised under Article 13 of the Convention.</span></div><div><span style="font-family: arial;"><br /><b>Commentary</b></span></div><div><span style="font-family: arial;"><br />The Court's judgment is welcome in relation to the violations it found for the individual applicants in respect of Article 14 of the Convention taken in conjunction with Article 8, and for all of the applicants in respect of Article 14 of the Convention taken in conjunction with Article 11. </span></div><div><span style="font-family: arial;"><br />The judgment sends another clear message to European States that they are under a positive obligation to protect LGBT people from abuse, to protect the freedom of peaceful assembly of LGBT people, and to rigorously investigate those who engage in hate-motivated acts against LGBT people. On this latter point, the Court repeated its now established view that "without [...] a rigorous approach on the part of the law‑enforcement authorities, prejudice-motivated crimes will inevitably be treated on an equal footing with cases involving no such overtones, and the resultant indifference can be tantamount to official acquiescence in, or even connivance with, hate crimes" (§ 124).</span></div><div><span style="font-family: arial;"><br />A question can be raised about whether the Court's decision to declare the Article 3 complaint inadmissible is appropriate, and whether it is consistent with the Court's previous Article 3 jurisprudence in this area. </span></div><div><span style="font-family: arial;"><br />The Court appears to suggest that the lack of physical aggression towards the individual applicants was decisive to its decision not to declare the Article 3 complaint admissible. Yet, in <i>Identoba and Others</i>, when dealing with homophobic language and actions (including death threats, and terms such as “crushing” and “burning to death”) which were then followed by actual physical assaults, the Court stated that "the question of whether or not some of the applicants sustained physical injuries of certain gravity becomes less relevant" because:</span></div><div><span style="font-family: arial;"><br /><i>All of the [...] applicants became the target of hate speech and aggressive behaviour [...] Given that they were surrounded by an angry mob that outnumbered them and was uttering death threats and randomly resorting to physical assaults, demonstrating the reality of the threats, and that a clearly distinguishable homophobic bias played the role of an aggravating factor [...], the situation was already one of intense fear and anxiety. The aim of that verbal – and sporadically physical – abuse was evidently to frighten the applicants so that they would desist from their public expression of support for the LGBT community [...] In the light of the foregoing, the Court concludes that the treatment of the applicants must necessarily have aroused in them feelings of fear, anguish and insecurity [...], which were not compatible with respect for their human dignity and reached the threshold of severity within the meaning of Article 3 taken in conjunction with Article 14 of the Convention (§ 70-1).</i></span></div><div><span style="font-family: arial;"><br />Arguably, the situation described in <i>Identoba and Others</i> is very similar to the present case. In <i>Identoba and Others</i>, the Court placed emphasis on the "intense fear and anxiety" created by "hate speech and aggressive behaviour", albeit in the context of sporadic physical assaults. One reading of </span><i style="font-family: arial;">Identoba and Others</i><span style="font-family: arial;"> is that the "fear, anguish and insecurity" that was deemed to fall within the scope of Article 3 was primarily created by the verbal abuse and threatening behaviour, and did not depend on the existence of the sporadic assaults. On this basis, given the extreme nature of the verbal abuse and threatening behaviour in this case, which led the applicants to fear for their safety and their lives, it is disappointing that the Court did not consider it to reach the threshold of Article 3.</span></div><div><span style="font-family: arial;"><br />Relatedly, the Court appears to have made a qualitative assessment of the "verbal abuse" in this case which, "although openly discriminatory and performed within the context of actions that showed evidence of a pattern of violence and intolerance against a sexual minority", it deemed not so severe as to cause the kind of "fear, anguish or feelings of inferiority" that are necessary for Article 3 to come into play (§ 56). Arguably, this is a strange conclusion given the nature of the verbal abuse to which the applicants where subjected. Why (as in this case) does the abusive language of "death to homosexuals”, “faggots” and “you filth” not reach the threshold of Article 3, when (as in <i>Identoba and Others</i>) the abusive language of "fagots”, “perverts” and "burning to death" does reach the threshold of Article 3? </span></div><div><span style="font-family: arial;"><br />It is vitally important that LGBT people are fully protected under Article 3 of the Convention, in order to address inhuman and degrading treatment. Silvia Falcetta and I discuss this in an article in <a href="https://pure.york.ac.uk/portal/en/publications/sexual-orientation-discrimination-and-article-3-of-the-european-convention-on-human-rights-developing-the-protection-of-sexual-minorities(2272db1f-5715-49d2-883a-4741732a52c4).html"><i>European Law Review</i></a>. It is disappointing that the Court concluded that the actions of a group of people entering a cinema and proclaiming "death to homosexuals”, and using the words “faggots” and “you filth”, in circumstances where the police failed to adequately provide protection, did not fall within the scope of Article 3 and, more importantly, amount to a violation of it.</span><span style="font-family: arial;"> </span></div><div><span style="font-family: arial;"><br /><br /><br /><br /><br /><br /></span><br /></div>Paul Johnsonhttp://www.blogger.com/profile/03461850697230434763noreply@blogger.com0tag:blogger.com,1999:blog-7100925932021210247.post-22593864673179334762021-02-25T22:16:00.000+00:002021-02-25T22:16:01.486+00:00Cayman Islands, same-sex marriage, and the mess of Article 12 of the European Convention on Human Rights<p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"></p><div class="separator" style="clear: both; text-align: center;"><a href="https://1.bp.blogspot.com/-l3ooLUzKAxk/YDgbkwbIWrI/AAAAAAAACmg/aivyXehYRSsILP_3NjLHBXXo83qFocbHgCLcBGAsYHQ/s1368/gay-pride.jpg.webp" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="1026" data-original-width="1368" height="480" src="https://1.bp.blogspot.com/-l3ooLUzKAxk/YDgbkwbIWrI/AAAAAAAACmg/aivyXehYRSsILP_3NjLHBXXo83qFocbHgCLcBGAsYHQ/w640-h480/gay-pride.jpg.webp" width="640" /></a></div><span style="font-family: Arial, sans-serif;"><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;"><br /></span></p>This week, the </span><a href="https://www.jcpc.uk/" style="color: #954f72; font-family: Arial, sans-serif;">Judicial Committee of the Privy Council</a><span style="font-family: Arial, sans-serif;"> held a two-day hearing in the case of </span><a href="https://www.jcpc.uk/cases/jcpc-2020-0033.html" style="color: #954f72; font-family: Arial, sans-serif;"><i>Day and another (Appellants) v The Government of the Cayman Islands and another (Respondents)</i></a><span style="font-family: Arial, sans-serif;">. The case concerns whether the Bill of Rights in the Constitution of the Cayman Islands provides a right for same-sex couples to access the institution of marriage.</span><p></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;"><br /></span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;">The European Convention on Human Rights extends to the Cayman Islands, a self-governing British Overseas Territory. As such, the right to marry contained in Article 12 of the Convention is in operation in the Cayman Islands and, inevitably, the hearing in </span><i style="font-family: Arial, sans-serif;">Day</i><span style="font-family: Arial, sans-serif;"> turned on the extent to which same-sex couples can rely on the protection of Article 12 when their government prohibits them from marrying. </span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;"> </span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;">Article 12 of the Convention provides: </span><i><span style="font-family: Arial, sans-serif;">“</span><span style="background-color: white; font-family: Arial, sans-serif;">Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”</span></i></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;"> </span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><b><span style="font-family: Arial, sans-serif;">Article 12, same-sex couples and the European Court of Human Rights<o:p></o:p></span></b></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;"> </span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;">Listening to the arguments presented in <i>Day</i> reminded me of something I have written about many times before: the inconsistent and flawed approach of the European Court of Human Rights in interpretating Article 12 of the Convention in respect of same-sex marriage. <o:p></o:p></span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;"> </span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;">That inconsistent and flawed approach began in 2010, in the case of <a href="http://hudoc.echr.coe.int/eng?i=001-99605" style="color: #954f72;"><i>Schalk and Kopf v Austria</i></a>, when the Court considered a complaint by a same-sex couple about their inability to marry and reached the conclusion that “it cannot be said that Article 12 is inapplicable to the applicants’ complaint” (§ 61).<o:p></o:p></span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;"> </span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;">This conclusion, on the “applicability” of Article 12 to a complaint about the exclusion of same-sex couples from marriage, was based on the Court having regard to Article 9 of the <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:12012P/TXT" style="color: #954f72;">Charter of Fundamental Rights of the European Union</a> which, in providing a right to marry, does not contain the words “men and women” and leaves the decision whether or not to allow same-sex marriage to EU states. <o:p></o:p></span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;"> </span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;">It was in light of Article 9 of the EU Charter that the Court concluded that it “<span style="background-color: white;">would no longer consider that the right to marry enshrined in Article 12 must in all circumstances be limited to marriage between two persons of the opposite sex […] However, as matters stand, the question whether or not to allow same-sex marriage is left to regulation by the national law of the Contracting State” (§ 61).<o:p></o:p></span></span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="background-color: white; font-family: Arial, sans-serif;"><o:p> </o:p></span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;">This conclusion on the applicability of Article 12 was made in the context of the Court’s interpretation of Article 12 in respect of two other claims made by the applicants in <i>Schalk</i>. <o:p></o:p></span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;"> </span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;">The first of these claims was that the “wording of Article 12 did not necessarily have to be read in the sense that men and women only had the right to marry a person of the opposite sex” (§ 44). The Court rejected this textual argument, stating that in contrast to all of the other substantive Articles of the Convention, which grant rights and freedoms to “everyone” or state that “no one” is to be subjected to certain types of prohibited treatment, the inclusion of the words “men and women” in Article 12 must be regarded as deliberate and, moreover, understood to reflect the “traditional sense” of marriage as the “union between partners of different sex” (§ 55). As I argued in an article published in <a href="https://echrso.blogspot.com/2015/04/why-european-court-of-human-rights-is.html" style="color: #954f72;"><i>European Law Review</i></a>, which was discussed in the Privy Council hearing this week, this historical understanding of Article 12 is patently untrue. <o:p></o:p></span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;"> </span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;">The other claim advanced by the applicants in <i>Schalk </i>was that “the institution of marriage had undergone considerable changes” and, consequently, “there was no longer any reason to refuse same-sex couples access to marriage” (§ 44). The Court dismissed the applicants’ argument that Article 12 should be interpreted “in the light of present-day conditions” on the grounds that “there is no European consensus regarding same-sex marriage” (§ 57-8). At the time of <i>Schalk</i>, <span style="background-color: white;">6 out of 47 Convention states allowed same-sex marriage, and this has now </span><a href="https://rm.coe.int/commdh-2020-25-third-party-intervention-formela-and-formela-v-poland-e/1680a059ab" style="color: #954f72;"><span style="background-color: white; background-position: initial initial; background-repeat: initial initial;">grown to 16</span></a><span style="background-color: white;"> – a growth which the Court has not regarded as a basis on which to change its approach to interpreting Article 12. </span><o:p></o:p></span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;"> </span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;">For all of the reasons outlined above, the Court’s overall conclusion in <i>Schalk </i>was that <span style="background-color: white;">Article 12 “does not impose an obligation […] to grant a same-sex couple […] access to marriage” (§ 63). </span><o:p></o:p></span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="background-color: white; font-family: Arial, sans-serif;"><o:p> </o:p></span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><b><span style="background-color: white; font-family: Arial, sans-serif;">The mess of “applicability” <o:p></o:p></span></b></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="background-color: white; font-family: Arial, sans-serif;"><o:p> </o:p></span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;">The remark made by the Court in <i>Schalk</i> on the “applicability” of Article 12 to same-sex couples has, in my view, created enormous confusion about the relevance of Article 12 to same-sex couples seeking access to marriage. <o:p></o:p></span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;"> </span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;">Such confusion can be seen, for example, in the responses by the domestic courts to complaints about the then-prohibition of same-sex marriage in Northern Ireland. When applying Article 12, the High Court rejected the complaints and concluded that “the Strasbourg Court does not recognise a ‘right’ to same sex marriage. That being the case, the current statutory provisions in Northern Ireland [prohibiting same-sex marriage] do not violate any rights. Those rights do not exist in any legal sense” (<i><a href="https://www.judiciaryni.uk/sites/judiciary/files/decisions/In%20the%20Matter%20of%20an%20application%20by%20Close%20%28Grainne%29%2C%20Sickles%20%28Shannon%29%2C%20Flanagan%20Kane%20%28Christopher%29%20and%20Flanagan%20Kane%20%28Henry%29.pdf">Close and Others, Re Judicial Review</a></i> § 16). By contrast, the Court of Appeal reached the conclusion that the prohibition on marriage was in violation of the Convention, holding that “the absence of same-sex marriage in [Northern Ireland] discriminated against same-sex couples, that a fair balance between tradition and personal rights had not been struck and that therefore the discrimination [against same-sex couples] was not justified” (<i><a href="https://www.judiciaryni.uk/sites/judiciary/files/decisions/Close%20%28Grainne%29%20and%20Shannon%20Sickles%20and%20Christopher%20Flanagan-Kane%20and%20Henry%20Flanagan-Kane%27s%20Application_0.pdf">Close and Others, Re Judicial Review</a></i> § 58).<o:p></o:p></span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;"> </span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;">In my view, such different conclusions arise from the confusion created by the Court in <i>Schalk</i> in simultaneously holding that Article 12 “applies” to same-sex couples but does not require a state to grant same-sex couples access to marriage. The Court has, since <i>Schalk</i>, maintained that Article 12 is “applicable to a same sex couple wishing to marry” and that Article 12 is not violated by a state operating a total ban on same-sex marriage (<i><a href="http://hudoc.echr.coe.int/eng?i=001-179547">Orlandi and Others v Italy</a></i>, § 145). <o:p></o:p></span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;"> </span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;">Given that the Court's approach has led to significant uncertainty and confusion, and to radically different conclusions about the extent to which Article 12 protects same-sex couples seeking access to marriage (such as those in Northern Ireland), </span><span style="font-family: Arial, sans-serif;">it would, in my opinion, be more appropriate for the Court to say that Article 12 remains “inapplicable” to same-sex couples. It would be more appropriate because, in my view, the way the Court interprets Article 12 means that it is practically and effectively inapplicable to same-sex couples seeking access to marriage. I think this for three key reasons. </span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;"> </span></p><p class="MsoNormal" style="margin: 0cm;"><span style="font-family: Arial, sans-serif;">The first reason that Article 12 is practically and effectively inapplicable to same-sex couples seeking access to marriage is that, in <i>Schalk</i>, the Court stated that its applicability arose solely because of the existence of Article 9 of the EU Charter. In this respect the Court concluded, as I outlined above, that because Article 9 of the EU Charter had omitted the words “men and women” from the right to marry that it would no longer consider that this right in Article 12 must in all circumstances be limited to marriage between two persons of the opposite-sex. The former President of the Court, Nicolas Bratza, has stated that <i>Schalk</i> established that “in the light of Article 9 of the [EU] Charter, it could not be ruled out […] that Article 12 of the Convention could apply to same-sex marriage <i>if the latter was recognised in domestic law</i>”.</span><span style="font-family: arial; font-size: x-small;">[1]</span><span style="font-family: Arial, sans-serif;"> Therefore, the Court’s interpretation of the relevance of Article 9 of the EU Charter cannot be regarded as establishing that, in general terms, complaints relating to same-sex marriage will fall within the scope of Article 12. This is not least because for those individuals in states contracted to the Convention that are not members of the EU, Article 9 of the EU Charter has no relevance.<o:p></o:p></span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;"> </span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;">The second reason that Article 12 remains practically and effectively inapplicable to same-sex couples seeking access to marriage is based on the existence of eleven years of case law since <i>Schalk</i>. During this time the Court has failed to evolve its approach to applying Article 12 to complaints by same-sex couples seeking access to marriage. On the contrary, in <i><a href="http://hudoc.echr.coe.int/eng?i=001-145768">Hämäläinen v Finland</a></i>, the Grand Chamber took the opportunity to state that Article 12 “enshrines the traditional concept of marriage as being between a man and a woman” (§ 96). Moreover, in <i><a href="http://hudoc.echr.coe.int/eng?i=001-156265">Oliari and Others v Italy</a></i>, the Court declared complaints about the inability of same-sex couples to marry inadmissible as “manifestly ill-founded” (§ 194) – something which counsel for the Cayman Islands government made much of in this week’s hearing. Since the Convention is “intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective” (<i><a href="http://hudoc.echr.coe.int/eng?i=001-97879">Cudak v Lithuania</a></i> [GC] § 58) any applicability of Article 12 to same-sex couples seeking access to marriage is, I would argue, “illusory”. <o:p></o:p></span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;"> </span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;">The third reason Article 12 is practically and effectively inapplicable to same-sex couples is borne from contradictions between the Court’s general jurisprudence on the right to marry and its specific jurisprudence on same-sex marriage. For instance, in its general Article 12 jurisprudence the Court has established the standard that a state "may not [...] deprive a person or a category of persons of full legal capacity of the right to marry with the partners of their choice" (<i><a href="http://hudoc.echr.coe.int/eng?i=001-102266">O’Donoghue and Others v the United Kingdom</a></i> § 83). If Article 12 is applicable to same-sex couples then a total prohibition of same-sex marriage by a state, which results in a category of persons being deprived of the right to marry the partners of their choice, cannot meet the Court’s own standard and must, therefore, amount to a violation of Article 12. Since the Court has consistently found no such violation, it is unsurprising that some judges in the Court have sought to justify the Court’s approach, arguing that Article 12 does not apply to "a same-sex couple seeking to marry" but only to a "specific grievance" raised by a same-sex couple "for the purpose of assessing that grievance from the viewpoint of that provision" (<i>Orlandi and Others, </i>dissenting opinion of Judges Pejchal and Wojtyczeck, § 8). This kind of nonsensical rationalization arises from the mess created by the Court, in which Article 12 is said to apply to same-sex couples at the same time that states are free to operate a total prohibition of same-sex marriage. <o:p></o:p></span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;"> </span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><b><span style="font-family: Arial, sans-serif;">Conclusion: the Court should be clear and honest about its denial of the right to marry to same-sex couples<o:p></o:p></span></b></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;"> </span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;">In my view, the Court’s position that Article 12 “applies” to same-sex couples seeking to challenge the prohibition of marriage is dishonest. <o:p></o:p></span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;"> </span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;">It is dishonest because, in the context of the Court’s general jurisprudence on Article 12 – which prohibits states from restricting or reducing any person’s ability to marry in such a way that impairs the very essence of the right </span><span style="font-family: Arial, sans-serif;">(</span><i style="font-family: Arial, sans-serif;"><a href="http://hudoc.echr.coe.int/eng?i=001-57564">Rees v the United Kingdom</a></i><span style="font-family: Arial, sans-serif;"> § 50) </span><span style="font-family: Arial, sans-serif;">or deprives a person or group of persons of the right to marry with the partners of their choice (</span><i style="font-family: Arial, sans-serif;">O’Donoghue and Others </i><span style="font-family: Arial, sans-serif;">§ 83)</span><span style="font-family: Arial, sans-serif;"> </span><span style="font-family: Arial, sans-serif;">– if Article 12 does apply to same-sex couples then the Court should find that the prohibition of same-sex marriage is in violation of it. </span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;"> </span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;">Because the Court has never found that the prohibition of same-sex marriage violates Article 12 but, instead, has rejected every complaint on this matter that has come before it, it is difficult to reach any conclusion other than that the “applicability” of Article 12 to same-sex couples seeking access to marriage is theoretical and illusory, and of no practical or effective benefit. <o:p></o:p></span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;"> </span></p><p class="MsoNormal" style="margin: 0cm;"><span style="font-family: Arial, sans-serif;">The theory that Article 12 applies to same-sex couples creates the illusion that it is worth same-sex couples pursuing litigation against the prohibition of same-sex marriage on this ground. In other words, the Court has created a situation in which Article 12 appears to offer same-sex couples some hope of challenging the prohibition of marriage whilst, at the same time, continuing to reject all such complaints that come before it. <o:p></o:p></span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;"> </span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;">Why the Court maintains this position on the applicability of Article 12 is unknown. It might be generously understood as part of a staged process whereby the Court is carefully opening the door to, one day in the future, recognizing that, in light of present-day conditions in Europe, Article 12 requires states to provide same-sex couples with access to marriage. It is more likely that the Court’s position has arisen, haphazardly, from tensions between its judges, some of whom would like to expand Article 12 to same-sex couples whilst others would not. This may have led to the problematic position in which Article 12 is said to apply to same-sex couples but be of no utility whatsoever to them when excluded from marriage. <o:p></o:p></span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;"> </span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;">The mess made by the Court in interpreting Article 12 is, at the very least, distracting. It leads to domestic courts becoming “bogged down” in confusion about what the Court really means about Article 12 and same-sex marriage – a confusion which was apparent in the Privy Council this week – whilst the Court continues to reject complaints from same-sex couples seeking access to marriage. <o:p></o:p></span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;"> </span></p><p class="MsoNormal" style="margin: 0cm;"><span style="font-family: Arial, sans-serif;">In my view, given that complaints about the prohibition of same-sex marriage have not succeeded in the Court under Article 12, litigation in the domestic courts on this issue should seek to escape the limitations imposed by the Court in respect of Article 12 and use the Convention more creatively. Litigation in the domestic courts – like that in the Privy Council – should not focus exclusively on whether a right to same-sex marriage can be derived from Article 12 but whether, for example, the prohibition of marriage violates Article 3 of the Convention. As I have argued elsewhere, there is nothing to prevent domestic courts creatively using the substantive Articles of the Convention, such as Article 3, in order to address the ‘degrading treatment’ that results from refusing to allow same-sex couples to marry.<o:p></o:p></span><span style="font-family: arial; font-size: x-small;">[2]</span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;"> </span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;">A more creative use of other Articles of the Convention would allow the domestic courts to avoid the mess created by the Court in respect of Article 12 and, at the same time, address the obvious ill-treatment of same-sex couples who are told, in jurisdictions such as the Cayman Islands, that their relationships do not have the same value as different-sex couples. <o:p></o:p></span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;"> </span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;"><br /></span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-family: Arial, sans-serif;"> </span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-size: x-small;"><span style="font-family: Arial, sans-serif;"><i>Some parts of this post are adapted from Paul <span style="background-color: white;">Johnson and Silvia Falcetta, “Same-Sex Marriage and Article 12 of the European Convention on Human Rights” in Chris Ashford and Alexander Maine (eds), Research Handbook on Gender, Sexuality and the Law (Edward Elgar Publishing) available at SSRN: </span></i></span><span style="font-family: Arial, sans-serif;"><a href="https://ssrn.com/abstract=3136642" style="color: #954f72;" target="_blank"><span style="background-color: white; background-position: initial initial; background-repeat: initial initial; color: black;"><i>https://ssrn.com/abstract=3136642</i></span></a><o:p></o:p></span></span></p><p class="MsoNormal" style="font-family: "Times New Roman", serif; margin: 0cm;"><span style="font-size: x-small;"><br /></span></p><div><hr align="left" size="1" width="33%" /><div id="ftn1"><p class="MsoNormal" style="margin: 0cm;"><span style="font-family: arial; font-size: x-small;"><span class="MsoFootnoteReference" style="vertical-align: super;"><span class="MsoFootnoteReference" style="vertical-align: super;">[1]</span></span> Nicolas Bratza, ‘The European Convention on Human Rights and the Charter of Fundamental Rights of the European Union: A Process of Mutual Enrichment’ in Yves Bot, Allan Rosas, Egils Levits (eds), <i>The Court of Justice and the Construction of Europe: Analyses and Perspectives on Sixty Years of Case-law</i> (T.M.C. Asser Press 2013), 171 (emphasis added). <o:p></o:p></span></p><p class="MsoFootnoteText" style="margin: 0cm;"><o:p><span style="font-family: arial; font-size: x-small;"> </span></o:p></p></div><div id="ftn2"><p class="MsoNormal" style="margin: 0cm;"><span style="font-family: arial; font-size: x-small;"><span class="MsoFootnoteReference" style="vertical-align: super;"><span class="MsoFootnoteReference" style="vertical-align: super;">[2]</span></span> I have proposed that excluding same-sex couples from marriage should be regarded as amounting to a form of degrading treatment in violation of Article 3 (prohibition of torture) of the Convention. See Paul Johnson and Silvia Falcetta, ‘Sexual Orientation Discrimination and Article 3 of the European Convention on Human Rights: Developing the Protection of Sexual Minorities’ (2018) <i>European Law Review</i>, <span style="background-color: white; color: #1d1d1d;">43(2) 167-185.</span></span><span style="font-family: "Times New Roman", serif; font-size: 10pt;"><o:p></o:p></span></p><p class="MsoFootnoteText" style="font-family: "Times New Roman", serif; font-size: 10pt; margin: 0cm;"><o:p> </o:p></p></div></div>Paul Johnsonhttp://www.blogger.com/profile/03461850697230434763noreply@blogger.com0tag:blogger.com,1999:blog-7100925932021210247.post-31963042164731577462021-02-18T19:53:00.003+00:002021-02-18T21:39:25.181+00:00Case about police raid on LGBT organisation in Turkey declared inadmissible by Court<p></p><div class="separator" style="clear: both; text-align: center;"><a href="https://1.bp.blogspot.com/-BOCwQ8bgbzo/YC6UWT5DAWI/AAAAAAAACmA/zz6AtQ1YJ80HA1oJPRxlBJ2y7HJuT_l6ACLcBGAsYHQ/s480/Turkey_Gay_Flag.png" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="297" data-original-width="480" height="397" src="https://1.bp.blogspot.com/-BOCwQ8bgbzo/YC6UWT5DAWI/AAAAAAAACmA/zz6AtQ1YJ80HA1oJPRxlBJ2y7HJuT_l6ACLcBGAsYHQ/w640-h397/Turkey_Gay_Flag.png" width="640" /></a></div><span style="font-family: arial;"><p>The Second Section of the European Court of Human Rights has issued its decision in <i><a href="http://hudoc.echr.coe.int/eng?i=001-208088">Lambdaistanbul LGBT Solidarity Association v Turkey</a></i>, declaring the application inadmissible. </p><p>The case concerns the search of the premises of <a href="http://www.lambdaistanbul.org/s/lambdaistanbul-lgbti-solidarity-association/">Lambdaistanbul LGBTI Solidarity Association</a> ("the Association") by the police and the seizure of certain documents. </p></span><p></p><p><span style="font-family: arial;"><b>The facts</b></span></p><span style="font-family: arial;">In March 2008, the Istanbul Prefecture and the Police Department received an email from an individual accusing the Association of "<span jsaction="click:qtZ4nf,GFf3ac,tMZCfe; contextmenu:Nqw7Te,QP7LD; mouseout:Nqw7Te; mouseover:qtZ4nf,c2aHje" jsname="W297wb">lending its premises for the prostitution of persons presented as transvestites".</span></span><div><br /></div><div><span style="font-family: arial;">On this basis, the police set up surveillance of the premises. The surveillance reported that people, presented as transvestites, often entered and left these premises. <br /><br />As a result, authorisation was sought for police officers to carry out a search of the Association premises. <br /><br />The search was conducted in the presence of the president of the Association, who was called to the scene, and an employee of the Association, and no element of infringement of the law was discovered. <br /><br />When the search ended the president of the Association was asked if any damage had been caused and replied in the negative. Several Association books, including a book for registering documents, a book of decisions, an inventory book, an expenses book, an income book, a membership book, as well as a document folder and an account book, were seized and retained.<br /><br />Subsequently, the Association wrote to the authorities requesting the return of the documents which had been seized, and these were returned following an investigation of them. <br /><br />The Association took action in the domestic courts, claiming that the search carried out on its premises was illegal. The Association claimed that "it was normal for transvestites and transsexuals to enter and leave her premises, given its purpose". This action was unsuccessful. <br /><br />The Association submitted a request to the public prosecutor to obtain the investigation file. The Association said it wanted to take legal action against the officials who took part in the seizure of the documents, believing it to be contrary to law. According to a letter from the Interior Ministry on 4 January 2019, no complaint was filed.<br /><br /><b>Complaints to the Court</b><br /><br />Relying on Article 8 of the Convention, the Association complained that it was searched without legal reason and its documents seized. The result of this, claimed the Association, was that "LGBT people were afraid to come to the premises". <br /><br />Relying on Article 11 of the Convention, the Association alleged that the search it was subjected to and the seizure of its documents disrupted its activities. It alleged that the concerns of its members increased and that its activities were hampered. <br /><br />Relying on Article 14 of the Convention, the Association further alleged that the reason for the search was discriminatory in that it was based on the fact that "transvestites and transsexuals entered and left its premises".<br /><br /><b>Decision of the Court<br /></b><br />The Court emphasised that, in the context of the fight against crime, States may consider it necessary to have recourse to certain measures to establish physical evidence of offences and to prosecute them where appropriate. <br /><br />In the present case, the Court noted that the search in issue, undertaken following a report of an offence, was provided for by domestic law and pursued a legitimate aim within the meaning of Article 8 § 2 of the Convention, namely the prevention of crime. It was ordered by a judge and was intended to collect evidence in relation to the allegations made against the leaders of the Association as to their involvement in illegal activities. <br /><br />The search had taken place in the presence of the president of the Association and an employee, and no damage was caused. The Court concluded that there was nothing to suggest that the search was not a means reasonably proportionate to the pursuit of the legitimate aim pursued. <br /><br />The Court noted that the Association was able to lodge a judicial appeal against the disputed search and put forward its arguments. No criminal proceedings were instituted following this search and all the documents seized by officials were returned to the Association. <br /><br />The Court reject privacy concerns regarding the content of the seized documents. It stated that only individuals whose details were mentioned in those documents could be affected, and not the Association itself which had brought the case before the Court in its own name. <br /><br />The Court observed that the Association had not shown that its activities were actually affected or hampered by the search. Apart from its statements, formulated in general terms, it had not submitted any document or any specific information capable of supporting or illustrating that LGBT people have ceased to visit its premises, that the number of its members had decreased, or that it had to postpone some activities. <br /><br />The Court concluded that the general wording and unsubstantiated nature of the complaint made it manifestly ill-founded. It reached the same conclusion in respect of the Association's complaint regarding discrimination, rejecting this as manifestly ill-founded. <br /><br />The Court unanimously declared the complaint inadmissible.<br /><br /><b>Comment</b><br /><br />This is a worrying decision by the Court that raises a number of questions. <br /><br />First, given that the search of the Association's premises was based on a complaint to the police about the use of the premises by transvestites, and the subsequent police surveillance that determined that </span><span style="font-family: arial;">transvestites often entered and left the premises,</span><span style="font-family: arial;"> </span><span style="font-family: arial;">the Court could have spent more time investigating the issue of discrimination. Discrimination is relevant here in two ways: first, the possible discriminatory motives of the original complaint to the police, and second, the possible discriminatory motives of the police and other authorities that acted upon the complaint and the police surveillance. </span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">In this respect, the Association had submitted that "homophobia and transphobia exist in Turkey including among civil servants", that "LGBT people in Turkey are [...] victims of discrimination and violence", and that "national bodies participate in this violence". Why, then, did the Court not pay more attention to the obvious fact that the basis for the police activity was that, as the Association put it, "</span><span style="font-family: arial;">transvestites and transsexuals entered and left its premises"? </span><span style="font-family: arial;">The government argued that the domestic authorities acted "without discrimination" but, if that was the case, why was the fact that the people under suspicion were trans relevant to both the original complaint to the police and the surveillance intelligence on which the police based their decision to conduct the search? The Court should have required the government to more robustly explain why the focus on trans people was not a decisive factor in the decision-making of the domestic authorities and, therefore, did not amount to discrimination. </span></div><div><div><span style="font-family: arial;"><br />Second, the Court's rejection of the privacy concerns raised about the seized documents is problematic. The documents could have contained sensitive information relating to individuals connected to the Association. In a society, which the Association has told the Court is homophobic and transphobic, these privacy issues become heightened. The Court paid no attention to the future potential harm to individuals whose personal details could now be known to the (reportedly homophobic and transphobic) domestic authorities. <br /><br />Third, the Court appears to have placed an onerous burden on the Association in its demand for data to support its claim that the search caused disruption to its activities. However, is it really possible for an organisation of this kind to quantify and capture the "fear" that may have been caused in its members by the police activities? Is it really possible for the effects of homophobia and transphobia to be rendered into documented evidence in the way the Court demands? Whilst the Court might be right to seek additional evidence of the claimed disruption, it is problematic to place an unreasonable burden on applicants, at the admissibility stage, to prove the chilling effects that police investigations of this kind have. <br /><br />Finally, it is concerning that decisions like this are being taken by a Committee. Committee formations comprise only three judges, and their admissibility decisions are final. Is this really all this case deserved? </span></div></div>Paul Johnsonhttp://www.blogger.com/profile/03461850697230434763noreply@blogger.com0tag:blogger.com,1999:blog-7100925932021210247.post-38295920653277032712021-02-17T22:10:00.000+00:002021-02-17T22:10:25.058+00:00Two new LGBT cases communicated by the Court against France and Moldova <p></p><div class="separator" style="clear: both; text-align: center;"><a href="https://1.bp.blogspot.com/-w2LoiMT6okg/YC2SADLv2iI/AAAAAAAAClw/xZduUEY6e7oz7HjyDzu5CqUbjLwuVNtDQCLcBGAsYHQ/s1246/Screenshot%2B2021-02-17%2Bat%2B22.00.17.png" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="800" data-original-width="1246" height="410" src="https://1.bp.blogspot.com/-w2LoiMT6okg/YC2SADLv2iI/AAAAAAAAClw/xZduUEY6e7oz7HjyDzu5CqUbjLwuVNtDQCLcBGAsYHQ/w640-h410/Screenshot%2B2021-02-17%2Bat%2B22.00.17.png" width="640" /></a></div><span style="font-family: arial;"><p>The European Court of Human Rights has communicated the following two cases concerning discrimination on the grounds of sexual orientation in respect of blood donation, and hate speech against LGBT persons. </p></span><p></p><p><i><a href="http://hudoc.echr.coe.int/eng?i=001-208208"><b><span style="font-family: arial;">Drelon v France</span></b></a></i></p><span style="font-family: arial;">Mr Drelon has made two applications to the Court. </span><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">The first application, which relies on Articles 8 and 14 of the Convention, concerns the registration of Mr Drelon as a homosexual by the French Blood Establishment ("EFS"), which he regards as, among other things, a disproportionate measure. </span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">The second application, which also relies on Articles 8 and 14 of the Convention, concerns the restriction on a male who has had sex with another male giving blood (previously a man who had sex with another man could not give blood for twelve months and, since 2019, this period is now four months). Mr Drelon also reiterates his complaint relating to his sexual orientation </span><span style="font-family: arial;">being listed in the EFS files.</span><div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">The Court has asked the Parties the following questions:<br /><br />1. Was there an infringement of Mr Drelon's right to respect for his private life, within the meaning of Article 8 § 1 of the Convention, by reason of the collection and storage by the EFS of personal data relating to sexual orientation? If so, was the interference with the exercise of this right prescribed by law and necessary within the meaning of Article 8 § 2? </span><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">2. Was there an infringement of Mr Drelon's right to respect for his private life, within the meaning of Article 8 § 1 of the Convention, by reason of the temporary restrictions to donating blood provided for by domestic law for a man who has had sex with another man? If so, was the interference with the exercise of this right prescribed by law and necessary within the meaning of Article 8 § 2? </span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">3. Has Mr Drelon been the victim of discrimination in the exercise of his rights guaranteed by the Convention on the basis of his sexual orientation, which would be contrary to Article 14 taken in conjunction with Article 8 of the Convention?</span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">[See also <i><a href="http://hudoc.echr.coe.int/eng?i=001-43809">Tosto v Italy</a>, </i>which the Court decided to strike out.] </span></div><div><span style="font-family: arial;"><br /></span></div><div><i><b><br /></b></i></div><div><i><b><span style="font-family: arial;"><a href="http://hudoc.echr.coe.int/eng?i=001-207910">Public Association Information Centre "GENDERDOC-M" v Moldova</a></span></b></i></div><div><span class="sB8D990E2" style="box-sizing: border-box; text-align: justify; text-indent: 14.2pt;"><span style="font-family: arial;"><br /></span></span></div><div><span class="sB8D990E2" style="box-sizing: border-box; text-align: justify; text-indent: 14.2pt;"><span style="font-family: arial;">The application concerns the authorities’ positive obligations in the context of hate speech by third parties. </span></span></div><div><span class="sB8D990E2" style="box-sizing: border-box; text-align: justify; text-indent: 14.2pt;"><span style="font-family: arial;"><br /></span></span></div><div><span class="sB8D990E2" style="box-sizing: border-box; text-align: justify; text-indent: 14.2pt;"><span style="font-family: arial;">A news portal published various news items and invited users to comment in specially reserved comments sections. One such news item about the LGBT community’s plans for a parade was followed by several statements made under pseudonyms and calling for violence and discrimination against LGBT persons in Moldova. </span></span></div><div><span class="sB8D990E2" style="box-sizing: border-box; text-align: justify; text-indent: 14.2pt;"><span style="font-family: arial;"><br /></span></span></div><div><span class="sB8D990E2" style="box-sizing: border-box; text-align: justify; text-indent: 14.2pt;"><span style="font-family: arial;">GENDERDOC-M, representing a number of LGBT persons, complained in the domestic courts against the news portal, but the courts rejected the complaint since the law did not provide for responsibility for statements made by third parties. </span></span></div><div><span class="sB8D990E2" style="box-sizing: border-box; text-align: justify; text-indent: 14.2pt;"><span style="font-family: arial;"><br /></span></span></div><div><span class="sB8D990E2" style="box-sizing: border-box; text-align: justify; text-indent: 14.2pt;"><span style="font-family: arial;">The case raises issues under Articles 8, 13 and 14 of the Convention.<br /><br />The Court has asked the Parties the following questions:<br /><br />1. Do the facts of the case disclose a violation of Article 8 taken alone or in conjunction with Articles 13 and/or 14 of the Convention? <br /><br />2. In particular, did the authorities comply with their positive obligations of preventing dissemination of statements calling for violence and discrimination against LGBT persons</span></span><span class="sB8D990E2" style="box-sizing: border-box; font-family: arial; text-align: justify; text-indent: 14.2pt;">?</span></div><div><span class="sB8D990E2" style="box-sizing: border-box; text-align: justify; text-indent: 14.2pt;"><span style="font-family: arial;"><br /></span></span></div><div><span class="sB8D990E2" style="box-sizing: border-box; text-align: justify; text-indent: 14.2pt;"><span style="font-family: arial;">[See the<a href="http://hudoc.echr.coe.int/eng?i=001-111394"> previous judgment </a>of the Court in respect of a complaint brought by GENDERDOC-M.]</span></span></div><div><span class="sB8D990E2" style="box-sizing: border-box; text-align: justify; text-indent: 14.2pt;"><span style="font-family: arial;"><br /></span></span></div><div><span class="sB8D990E2" style="box-sizing: border-box; text-align: justify; text-indent: 14.2pt;"><span style="font-family: arial;"><br /></span></span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;"><i><br /></i><br /></span><br /></div></div></div></div>Paul Johnsonhttp://www.blogger.com/profile/03461850697230434763noreply@blogger.com0tag:blogger.com,1999:blog-7100925932021210247.post-38316507079977395502021-01-14T22:38:00.000+00:002021-01-14T22:38:33.690+00:00Failure to adequately investigate and punish attack on a lesbian in Croatia is a violation of ECHR<p><span style="caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 14.2pt;"></span></p><div class="separator" style="clear: both; text-align: center;"><a href="https://1.bp.blogspot.com/-Wi5ULqESkG8/YAC9oQ4_4TI/AAAAAAAACkk/mQC7W_sEF7A1q4Bj4AnuzNb0L1ZOQBWpgCLcBGAsYHQ/s777/lgbt-trans-rights-croatia.png" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="480" data-original-width="777" height="396" src="https://1.bp.blogspot.com/-Wi5ULqESkG8/YAC9oQ4_4TI/AAAAAAAACkk/mQC7W_sEF7A1q4Bj4AnuzNb0L1ZOQBWpgCLcBGAsYHQ/w640-h396/lgbt-trans-rights-croatia.png" width="640" /></a></div><div class="separator" style="clear: both; text-align: center;"><span style="caret-color: rgb(0, 0, 0); font-family: arial; text-align: justify; text-indent: 14.2pt;"><span style="font-family: arial;"><br /></span></span></div><div class="separator" style="clear: both; text-align: left;"><span style="font-family: arial;"><span style="caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 14.2pt;"><span>The First Section of the European Court of Human Rights has today given its judgment in </span></span><i style="caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 14.2pt;"><a href="http://hudoc.echr.coe.int/eng?i=001-207360"><span class="s7D2086B4" style="background-color: white; box-sizing: border-box; text-indent: 18.9333px;">Sabalić</span><span class="s7D2086B4" style="background-color: white; box-sizing: border-box; text-indent: 18.9333px;"> v Croatia</span></a>. </i><span style="caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 14.2pt;">The case concerns </span><span class="sB8D990E2" style="background-color: white; box-sizing: border-box; caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 18.9333px;">Ms </span><span class="sB8D990E2" style="background-color: white; box-sizing: border-box; caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 18.9333px;">Pavla</span><span class="sB8D990E2" style="background-color: white; box-sizing: border-box; caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 18.9333px;"> </span><span class="sB8D990E2" style="background-color: white; box-sizing: border-box; caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 18.9333px;">Sabalić's</span><span style="caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 14.2pt;"> complaint about a lack of an appropriate response of the Croatian authorities to a homophobic act of violence against her.</span></span></div><p></p><p><span style="font-family: arial;"><b>The facts</b></span></p><p><span style="font-family: arial;"><span style="caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 14.2pt;">On 13 January 2010, </span><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 18.9333px; text-size-adjust: auto;">Ms<span class="Apple-converted-space"> </span></span><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 18.9333px; text-size-adjust: auto;">Sabalić</span><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 18.9333px; text-size-adjust: auto;"><span class="Apple-converted-space"> </span></span><span style="caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 14.2pt;">was physically attacked in a nightclub in Zagreb where she was with several of her friends. The attack ceased only after one of the </span></span><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); font-family: arial; text-align: justify; text-indent: 18.9333px; text-size-adjust: auto;">Ms<span class="Apple-converted-space"> </span></span><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); font-family: arial; text-align: justify; text-indent: 18.9333px; text-size-adjust: auto;">Sabalić</span><span style="font-family: arial;"><span style="caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 14.2pt;">’s friends used her gas pistol to frighten off the attacker. </span></span><span style="caret-color: rgb(0, 0, 0); font-family: arial; text-align: justify; text-indent: 14.2pt;">The police report records the incident as follows:</span></p><p><span style="font-family: arial;"><i><span style="caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 14.2pt;">"</span><span class="sFBBFEE58" style="background-color: white; box-sizing: border-box; text-align: justify; text-indent: 9.46667px;">While they were in the nightclub [<span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-indent: 18.9333px; text-size-adjust: auto;">Ms<span class="Apple-converted-space"> </span></span><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-indent: 18.9333px; text-size-adjust: auto;">Sabalić</span>] was approached by an unidentified man who started flirting with </span><span class="sFBBFEE58" style="background-color: white; box-sizing: border-box; text-align: justify; text-indent: 9.46667px;">her</span><span class="sFBBFEE58" style="background-color: white; box-sizing: border-box; text-align: justify; text-indent: 9.46667px;"> but she was constantly refusing him. After the nightclub </span><span class="sFBBFEE58" style="background-color: white; box-sizing: border-box; text-align: justify; text-indent: 9.46667px;">closed</span><span class="sFBBFEE58" style="background-color: white; box-sizing: border-box; text-align: justify; text-indent: 9.46667px;"> they were all standing in front of it and the man continued pressing [<span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-indent: 18.9333px; text-size-adjust: auto;">Ms<span class="Apple-converted-space"> </span></span><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-indent: 18.9333px; text-size-adjust: auto;">Sabalić</span><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-indent: 18.9333px; text-size-adjust: auto;"><span class="Apple-converted-space"> </span></span>] to be with him. When she said that she was a ‘lesbian’ he grabbed her with both of his arms and pushed her against a wall. He then started hitting her all over her body and when she fell to the </span><span class="sFBBFEE58" style="background-color: white; box-sizing: border-box; text-align: justify; text-indent: 9.46667px;">ground</span><span class="sFBBFEE58" style="background-color: white; box-sizing: border-box; text-align: justify; text-indent: 9.46667px;"> he continued kicking her.” </span></i></span></p><p><span style="font-family: arial;"><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 14.2pt;">The Zagreb Police Department </span><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 14.2pt;">was informed of the incident and two police officers immediately responded at the scene. </span><span style="caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 14.2pt;">The police soon identified the man as M.M. through the licence plates of a car he had used for fleeing from the scene. He was immediately apprehended and interviewed.</span></span></p><p><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); font-family: arial; text-align: justify; text-indent: 18.9333px; text-size-adjust: auto;">Ms<span class="Apple-converted-space"> </span></span><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); font-family: arial; text-align: justify; text-indent: 18.9333px; text-size-adjust: auto;">Sabalić</span><span style="caret-color: rgb(0, 0, 0); font-family: arial; text-align: justify; text-indent: 14.2pt;"> was examined in the accident and emergency department. The examination indicated a contusion on the head, a haematoma on the forehead, abrasions of the face, forehead and area around the lips, neck strain, contusion on the chest and abrasions of both palms and knees. The injuries were qualified as minor bodily injuries.</span></p><p><span style="font-family: arial;"><b><span style="text-align: justify; text-indent: 18.9333px;">Proceedings after </span><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 18.9333px; text-size-adjust: auto;">Ms<span class="Apple-converted-space"> </span></span><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 18.9333px; text-size-adjust: auto;">Sabalić's attack</span></b></span></p><p><span style="font-family: arial;"><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 14.2pt;">Following the<span class="Apple-converted-space"> </span></span><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 14.2pt;">incident</span><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 14.2pt;"><span class="Apple-converted-space"> </span>the police interviewed <span class="sB8D990E2" style="box-sizing: border-box; text-indent: 18.9333px; text-size-adjust: auto;">Ms<span class="Apple-converted-space"> </span></span><span class="sB8D990E2" style="box-sizing: border-box; text-indent: 18.9333px; text-size-adjust: auto;">Sabalić</span> and M.M., and the other participants in the event in connection with M.M.’s physical attack.</span></span></p><p><span style="font-family: arial;"><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 14.2pt;">The police instituted minor offences proceedings in the Minor Offences Court </span><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 14.2pt;">against M.M. for breach of public peace and order. B</span><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 14.2pt;">efore the Minor Offences Court, M.M. confessed to the charges against him. No further evidence was<span class="Apple-converted-space"> </span></span><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 14.2pt;">taken</span><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 14.2pt;"><span class="Apple-converted-space"> </span>and <span class="sB8D990E2" style="box-sizing: border-box; text-indent: 18.9333px; text-size-adjust: auto;">Ms<span class="Apple-converted-space"> </span></span><span class="sB8D990E2" style="box-sizing: border-box; text-indent: 18.9333px; text-size-adjust: auto;">Sabalić</span> was not informed of the proceedings. T</span><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 14.2pt;">he Minor Offences Court found M.M. guilty as charged of breach of public peace and order and fined him 300 Croatian<span class="Apple-converted-space"> </span></span><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 14.2pt;">kunas </span><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 14.2pt;">(approximately 40 Euros).</span></span></p><p><span style="font-family: arial;"><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 14.2pt;">After having realised that the police had failed to institute a criminal investigation, <span class="sB8D990E2" style="box-sizing: border-box; text-indent: 18.9333px; text-size-adjust: auto;">Ms<span class="Apple-converted-space"> </span></span><span class="sB8D990E2" style="box-sizing: border-box; text-indent: 18.9333px; text-size-adjust: auto;">Sabalić </span>lodged a criminal complaint with the Zagreb Municipal State Attorney’s Office </span><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 14.2pt;">against M.M. for the offences of attempted grave bodily injury, motivated by hate crime, and the criminal offence of discrimination.</span></span></p><p><span style="font-family: arial;"><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 14.2pt;">On the basis of</span><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 14.2pt;"><span class="Apple-converted-space"> </span><span class="sB8D990E2" style="box-sizing: border-box; text-indent: 18.9333px; text-size-adjust: auto;">Ms<span class="Apple-converted-space"> </span></span><span class="sB8D990E2" style="box-sizing: border-box; text-indent: 18.9333px; text-size-adjust: auto;">Sabalić's</span> criminal complaint, the State Attorney’s Office ordered the police to investigate the allegations. This led to rulings by the domestic courts that M.M. had already been prosecuted and no further action would be taken.</span></span></p><p><span style="font-family: arial;"><b>Complaint to the Court</b></span></p><p><span style="font-family: arial;"><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 18.9333px; text-size-adjust: auto;">Ms<span class="Apple-converted-space"> </span></span><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 18.9333px; text-size-adjust: auto;">Sabalić</span><span style="caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 14.2pt;"> complained of a lack of an appropriate response of the domestic authorities to the act of violence against her, motivated by her sexual orientation. She relied on Articles 3, 8 and 14 of the Convention.</span></span></p><p><span style="caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 14.2pt;"><span style="font-family: arial;"><b>Article 3 + 14 complaint</b></span></span></p><p><span style="font-family: arial;">The Court stated that the treatment suffered by Ms Sabalić, which was "directed at her identity and undermined her integrity and dignity" (§ 70), must necessarily have aroused in her feelings of fear, anguish and insecurity reaching the requisite threshold of severity to fall under Article 3 of the Convention. On this basis, the Court found Article 3 of the Convention applicable to Ms Sabalić's complaints.<br /><br />The Court recalled the established principles of its case-law on Articles 3 and 14 of the Convention concerning the State’s procedural obligation when confronted with cases of violent incidents triggered by suspected discriminatory attitudes, including those relating to the victim’s actual or perceived sexual orientation.<br /><br />In applying its established general principles, the Court noted that at the relevant time the domestic legal system provided protection to individuals from hate motivated violence, including crime motivated by the victim’s sexual orientation. However, the Court felt it did not need to examine the domestic legal framework since Ms Sabalić did not complain specifically in that respect. Rather, Ms Sabalić's complaint was of a procedural nature relating to a lack of an appropriate response of the domestic authorities to the violent hate crime against her. <br /><br />Focusing on the procedural aspect of the State’s obligations, the Court observed that following the physical attack against Ms Sabalić in the nightclub the police immediately responded at the scene and that, at the initial stages of the proceedings, the domestic authorities were confronted with prima facie indications of violence motivated or at least influenced by Ms Sabalić’s sexual orientation.<br /><br />The Court observed that the minor offences proceedings did not in any manner address the hate crime element to the physical attack against Ms Sabalić nor was M.M. indicted or convicted of any charges related to violence motivated by discrimination. The Court stated that it could not "overlook the fact that M.M.’s sentence in the minor offences proceedings was manifestly disproportionate to the gravity of the ill-treatment suffered" by Ms Sabalić (§ 110).<br /><br />The Court stated that both the failure to investigate hate motives behind a violent attack and failure to take into consideration such motives in determining the punishment for violent hate crimes amounted to “fundamental defects”. The domestic authorities failed to remedy the impugned situation and, in particular, they failed to offer Ms Sabalić the appropriate redress.<br /><br />The Court therefore unanimously found "that by instituting the ineffective minor offences proceedings and as a result erroneously discontinuing the criminal proceedings on formal grounds the domestic authorities failed to discharge adequately and effectively their procedural obligation under the Convention concerning the violent attack against the applicant motivated by her sexual orientation" (§ 115). On this basis, there had been a violation of Article 3 under its procedural aspect taken in conjunction with Article 14 of the Convention.<br /><br /></span><b style="font-family: arial;"><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 14.2pt;">Partly concurring opinion of Judge </span><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-size-adjust: auto;">Krzysztof<span class="Apple-converted-space"> </span></span><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-size-adjust: auto;">Wojtyczek (First Section President)</span></b></p><p><span style="font-family: arial;"><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-size-adjust: auto;"><span class="sB8D990E2" style="box-sizing: border-box; text-align: justify; text-indent: 14.2pt;">Judge</span><span class="sB8D990E2" style="box-sizing: border-box; text-size-adjust: auto;"><span class="Apple-converted-space"> </span></span><span class="sB8D990E2" style="box-sizing: border-box; text-size-adjust: auto;">Wojtyczek raised the concern that, in essence, the Court had </span></span><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 18.9333px; text-size-adjust: auto;">implicitly<span class="Apple-converted-space"> </span></span><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 18.9333px; text-size-adjust: auto;">established<span class="Apple-converted-space"> </span></span><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 18.9333px; text-size-adjust: auto;">– whether or not it so intended<span class="Apple-converted-space"> </span></span><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 18.9333px; text-size-adjust: auto;"></span><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 18.9333px; text-size-adjust: auto;">– that </span><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 18.9333px; text-size-adjust: auto;">M.M. committed an act which may be characterised as a criminal offen</span><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 18.9333px; text-size-adjust: auto;">c</span><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 18.9333px; text-size-adjust: auto;">e, that M.M. is guilty<span class="Apple-converted-space"> </span></span><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 18.9333px; text-size-adjust: auto;">of<span class="Apple-converted-space"> </span></span><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 18.9333px; text-size-adjust: auto;">this<span class="Apple-converted-space"> </span></span><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 18.9333px; text-size-adjust: auto;">offence,<span class="Apple-converted-space"> </span></span><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 18.9333px; text-size-adjust: auto;">and that a much more severe punishment should have been imposed upon him by the domestic courts. </span><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 14.2pt;">Judge</span><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-size-adjust: auto;"><span class="Apple-converted-space"> </span></span><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); text-size-adjust: auto;">Wojtyczek stated that this raised serious questions about </span><span style="background-color: white; caret-color: rgb(0, 0, 0); text-align: justify; text-indent: 18.9333px;">M.M.’s fundamental rights.</span></span></p><p><span style="font-family: arial;"><b>Brief comment</b></span></p><span style="font-family: arial;">This is an important judgment which further evolves the Court's jurisprudence on the interplay between Article 3 and Article 14 of the Convention in respect of hate crime committed on the basis of sexual orientation. It restates the principle that states are under a procedural obligation to investigate hate motives behind a violent attack and to take into consideration such motives in determining the punishment for violent hate crimes. It specifically establishes that states must use the most appropriate criminal law to deal with such serious offences of hatred on the grounds of sexual orientation, and not "downgrade" them to minor offences. <br /></span><p><span style="font-family: arial;">The Court's jurisprudence has evolved rapidly and it is important to remember that it was as recently as 2012 that the Court held, for the first time, that the ill-treatment of an individual on the grounds of sexual orientation amounted to a violation of Article 3, alone and in conjunction with Article 14, of the Convention. <span style="caret-color: rgb(0, 0, 0);">This is remarkable because i</span><span style="caret-color: rgb(0, 0, 0); text-size-adjust: auto;">ndividuals in Europe have been arguing since </span><span style="caret-color: rgb(0, 0, 0);">1959 that forms of ill-treatment based on sexual orientation amount to a violation of Article 3</span><span style="caret-color: rgb(0, 0, 0);">. Dr Silvia Falcetta and I have written a history of Article 3 and sexual orientation discrimination <a href="http://echrso.blogspot.com/2018/04/new-academic-publication-on-article-3.html">here</a>. </span></span></p><p><span style="font-family: arial;">Establishing that discrimination against individuals on the grounds of sexual orientation is a violation of Article 3 is important. Article 3 is an absolute right and, as such, provides no qualifications that can be utilised by a state to justify treating people differently on the grounds of sexual orientation. I have argued that Article 3 should be utilized more widely to address degrading treatment suffered by gay people, including failures by the state to provide adequate recognition of same-sex relationships (see <a href="http://echrso.blogspot.com/2017/09/same-sex-marriage-and-article-3-echr.html">here</a>).</span><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;"><span class="sFBBFEE58" style="background-color: white; box-sizing: border-box; text-align: justify;">Today's judgment is an important reminder of the value of Article 3 of the Convention in holding national authorities to account in respect of their</span><span class="sFBBFEE58" style="background-color: white; box-sizing: border-box; text-align: justify;"> duty to combat hate crimes directed at people on the basis of their sexual orientation. </span></span></p><p><a class="bookmark" name="_Hlk57899448" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); cursor: default; font-family: Arial; font-size: 11px; line-height: 18px; outline: 0px; text-align: justify; text-indent: 18.9333px; text-size-adjust: auto; vertical-align: middle;"><span class="sB8D990E2" style="box-sizing: border-box; font-size: 12pt;"><br /></span></a></p><p><span class="sB8D990E2" style="box-sizing: border-box; caret-color: rgb(0, 0, 0); font-family: Arial; font-size: 12pt; text-align: justify; text-indent: 14.2pt;"><br /></span></p>Paul Johnsonhttp://www.blogger.com/profile/03461850697230434763noreply@blogger.com0tag:blogger.com,1999:blog-7100925932021210247.post-87710969924026537952020-12-19T22:57:00.001+00:002021-03-02T16:20:07.530+00:002020: A Year in Review<p></p><div class="separator" style="clear: both; text-align: center;"><a href="https://1.bp.blogspot.com/-BHwKpbzOD0M/X95xOqTbWcI/AAAAAAAACjw/AAecfGjg00gOJV3AbL-iNDa0OwdpajG9wCLcBGAsYHQ/s1500/gay-pride-rainbow-flag.jpg" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="1000" data-original-width="1500" height="426" src="https://1.bp.blogspot.com/-BHwKpbzOD0M/X95xOqTbWcI/AAAAAAAACjw/AAecfGjg00gOJV3AbL-iNDa0OwdpajG9wCLcBGAsYHQ/w640-h426/gay-pride-rainbow-flag.jpg" width="640" /></a></div><span style="font-family: arial;"><p>2020 is not a year any of us will forget. The coronavirus pandemic has brought unprecedented changes to our daily lives. Sadly, many people have endured the loss of loved ones because of the pandemic. Some people suffering discrimination and persecution - including LGBT people - have felt this intensify as a result of changes in society brought about by the pandemic. In many ways, a concern for and a need to protect human rights has never felt more urgent. </p></span><p></p><p><span style="font-family: arial;">On the ECHR Sexual Orientation Blog I have tried, as always, to provide a factual and critical account of cases in the European Court of Human Rights (and wider developments in the Council of Europe) concerning sexual orientation discrimination. As usual, I have tried to provide readers with an insight into the facts of cases, a discussion of how the Court has approached them, as well as giving my own "point of view".</span></p><p><span style="font-family: arial;">Below is an overview of much of the activity on the blog this year.</span></p><p><span style="font-family: arial;">I want to thank everyone who stops by here from time to time to read about the Court and its cases. I have been writing this blog for 7 years now, and over that time I have made lots of new friends because of the blog and I really value that. Thank you for engaging with the material here!</span></p><p><span style="font-family: arial;">I wish you all a very happy Christmas, in these difficult days, and a happy new year, in which I hope we all have brighter days. </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="color: white; font-family: arial;"><b style="background-color: black;">2020: A Year in Review</b></span></p><p><b><span style="font-family: arial;">Decisions and judgments of the European Court of Human Rights</span></b></p><p><span style="font-family: arial;">The Court issued a number of important decisions and judgments relating to sexual orientation discrimination throughout 2020...</span></p><p><span style="font-family: arial;"><span face="Arial, Helvetica, sans-serif" style="background-color: white;">In January, the Court issued its judgment in the case of </span><i style="background-color: white;"><a href="https://echrso.blogspot.com/2020/01/protection-from-homophobic-hate-speech.html" style="background: transparent; color: #bf8b38; text-decoration-line: none;">Beizaras and Levickas</a><a href="http://hudoc.echr.coe.int/eng?i=001-200344" style="background: transparent; color: #bf8b38; text-decoration-line: none;"> v Lithuania</a></i><span face="Arial, Helvetica, sans-serif" style="background-color: white;">, holding unanimously that there had been a violation of the Convention in respect of the State’s failure to protect individuals from homophobic hate speech. </span><span face="Arial, Helvetica, sans-serif" style="background-color: white;">The judgment is important because it explicitly addresses "hateful comments", including undisguised calls for violence, made by private individuals against the gay community via social media. </span></span></p><p><span style="font-family: arial;">Also in January, the Court i<span class="sB8D990E2" face="Arial, Helvetica, sans-serif" style="box-sizing: border-box; text-align: justify; text-indent: 18.9333px;">ssued its judgment in </span><i><a href="https://echrso.blogspot.com/2020/02/russia-again-in-violation-of-echr-for.html"><span class="s7D2086B4" style="box-sizing: border-box; text-indent: 18.9333px;">Alekseyev </span><span class="s7D2086B4" style="box-sizing: border-box; text-indent: 18.9333px;">and Others </span></a><span class="s7D2086B4" style="box-sizing: border-box; text-indent: 18.9333px;"><span style="color: #bf8b38;"><span style="background-attachment: initial; background-clip: initial; background-image: initial; background-origin: initial; background-position: initial; background-repeat: initial; background-size: initial;"><a href="https://echrso.blogspot.com/2020/02/russia-again-in-violation-of-echr-for.html">v Russia</a> </span></span></span></i><span face="Arial, Helvetica, sans-serif" style="background-color: white;"><span style="text-indent: 18.9333px;">which concerned 77 applications made to the Court between November 2015 and June 2018 that primarily related to the </span><span class="sB8D990E2" style="box-sizing: border-box; text-align: justify; text-indent: 18.9333px;">ban, </span></span><span face="Arial, Helvetica, sans-serif" style="background-color: white; text-align: justify; text-indent: 18.9333px;">imposed by Russian authorities,</span><span class="sB8D990E2" face="Arial, Helvetica, sans-serif" style="background-color: white; box-sizing: border-box; text-align: justify; text-indent: 18.9333px;"> on </span><span class="sB8D990E2" face="Arial, Helvetica, sans-serif" style="background-color: white; box-sizing: border-box; text-align: justify; text-indent: 18.9333px;">holding </span><span class="sB8D990E2" face="Arial, Helvetica, sans-serif" style="background-color: white; box-sizing: border-box; text-align: justify; text-indent: 18.9333px;">LGBT public assemblies. The Court found violations, but declared applications by </span><span face="Arial, Helvetica, sans-serif" style="background-color: white; text-align: justify; text-indent: 18.9333px;">Nikolay Alekseyev </span><span face="Arial, Helvetica, sans-serif" style="background-color: white; text-align: justify; text-indent: 18.9333px;">inadmissible as an abuse of the right of individual application (which I wrote about, in connection with an earlier case, <a href="https://echrso.blogspot.com/2019/08/thoughts-on-recent-decision-by-european.html">here</a>).</span></span></p><p><span style="font-family: arial;">In June, the Court published<span face="arial, helvetica, sans-serif" style="background-color: white;"> its decision in the case of</span><span face="arial, helvetica, sans-serif" style="background-color: white;"> </span><a href="https://echrso.blogspot.com/2020/06/anti-gay-hate-speech-in-iceland-is-not.html" style="background-attachment: initial; background-clip: initial; background-image: initial; background-origin: initial; background-position: initial; background-repeat: initial; background-size: initial; color: #bf8b38; text-decoration-line: none;"><i>Carl Jóhann Lilliendahl v Iceland</i></a><span face="arial, helvetica, sans-serif" style="background-color: white;">, in which it unanimously declared the application</span><span face="Arial, Tahoma, Helvetica, FreeSans, sans-serif" style="background-color: white;">, by a 74-year-old man concerning a conviction in Iceland for anti-gay expression, </span><span style="background-color: white;">inadmissible. </span><span face="arial, helvetica, sans-serif" style="background-color: white;">The most striking aspect of the Court's decision was the clarification it contained regarding its approach to considering the expression of "hatred" against people on the grounds of sexual orientation. </span></span></p><p><span style="font-family: arial;">In October, the Court <span style="background-color: white;">issued its judgment in the case of </span><i style="background-color: white;"><a href="https://echrso.blogspot.com/2020/10/ill-treatment-of-lgbt-people-in-georgia.html">Aghdgomelashvili and Japaridze v Georgia</a></i><span style="background-color: white;">. The case concerned discriminatory ill‑treatment by the police on the grounds of sexual orientation and gender identity, and the absence of an effective domestic investigation of this ill-treatment. The violations found by the Court </span><span style="background-color: white;">make an important contribution to its evolving jurisprudence on the interplay between Article 3 and Article 14 of the Convention in respect of acts of hatred (both physical and speech acts) against LGBT people.</span></span></p><p><span style="font-family: arial;"><span style="background-color: white;">In November, the Court issued </span><span class="sB8D990E2" style="background-color: white; box-sizing: border-box; text-align: justify; text-indent: 18.9333px;">its judgment in </span><a href="https://echrso.blogspot.com/2020/11/court-says-convictions-for-public.html" style="background: rgb(255, 255, 255); color: #bf8b38; font-style: italic; text-decoration-line: none;"><span class="s7D2086B4" style="box-sizing: border-box; text-indent: 18.9333px;">Sozayev</span><span class="s7D2086B4" style="box-sizing: border-box; text-indent: 18.9333px;"> and Others v Russia</span></a><span style="background-color: white;">. The case concerned the arrest and conviction of five applicants, in </span><span class="sB8D990E2" style="background-color: white; box-sizing: border-box; text-align: justify; text-indent: 18.9333px;">2013, after they participated in a public assembly in front of the State Duma in Moscow in response to the legislative ban on the "</span><span class="sB8D990E2" style="background-color: white; box-sizing: border-box; text-align: justify; text-indent: 18.9333px;">promotion of non-traditional sexual relations among minors"</span><span class="sB8D990E2" style="background-color: white; box-sizing: border-box; text-align: justify; text-indent: 18.9333px;">. In finding violations of the Convention the </span><span style="background-color: white; text-align: justify; text-indent: 9.46667px;">judgment addressed restrictions on t</span><span style="background-color: white; text-align: justify; text-indent: 9.46667px;">he right to freedom of peaceful assembly generally, and the right to peacefully assemble to object to homophobic and transphobic laws.</span></span></p><p><span style="font-family: arial;">Also in November, the Court <span style="background-color: white;">issued its judgment in </span><span style="background-color: white; text-indent: 18.9333px;"><i><a href="https://echrso.blogspot.com/2020/11/deporting-gay-man-to-country-outside-of.html" style="background: transparent; color: #bf8b38; text-decoration-line: none;">B and C v Switzerland</a>, </i>which concerned the case of a gay man (in a same-sex relationship) challenging his deportation to a country (The Gambia) where he would be at risk of ill-treatment because of his sexual orientation. </span><span style="background-color: white;">For the first time in its history, the Court held that returning an applicant to a non-European state where they would be at risk of ill-treatment on the grounds of their sexual orientation amounted to a violation of Article 3 (prohibition of torture) of the Convention. </span></span></p><p><span style="font-family: arial;">And again in November, the Court issued its judgment in <i><a href="https://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=003-6850473-9178570&filename=Judgment%20Honner%20v.%20France%20-%20refusal%20to%20grant%20the%20applicant%20contact%20rights%20in%20respect%20of%20child%20born%20to%20her%20ex-partner%20via%20ART%3A%20no%20violation%20of%20the%20Convention.pdf">Honner v France</a> </i>in which it held that the refusal to award contact rights to the applicant in respect of the child which had been born to her former partner in Belgium using assisted reproductive techniques, while the two women were a couple, did not violate the Convention. </span></p><p><span style="font-family: arial;">In December, the Court <span style="background-color: white;">issued its judgment in </span><span style="background-color: white; text-indent: 18.9333px;"><i><a href="https://echrso.blogspot.com/2020/12/failure-to-protect-lgbt-people-at.html" style="background: transparent; color: #bf8b38; text-decoration-line: none;">Berkman v Russia</a><b>. </b></i>The case concerned the</span><span style="background-color: white;"> failure of police officers to ensure that an LGBTI </span><span style="background-color: white;">event disrupted by counter-demonstrators proceeded peacefully, and the unlawful arrest of the applicant at the event. Finding violations of the Convention, the</span><span style="background-color: white; text-align: justify; text-indent: 18.9333px;"> judgment was a further reiteration of the Court's now established principle that domestic authorities are under a positive obligation to ensure that LGBT+ people can exercise their right to freedom of peaceful assembly in circumstances free from homophobic hatred. </span></span></p><p><b><span style="font-family: arial;">Communicated cases</span></b></p><p><span style="font-family: arial;">The Court communicated a range of new cases concerning sexual orientation discrimination throughout 2020, many of which I wrote about on the blog. I detailed...</span></p><p><span style="font-family: arial;">Cases against Russia concerning <a href="https://echrso.blogspot.com/2020/02/new-echr-case-concerning-employment.html">employment discrimination</a>, failure of the police to investigate <a href="https://echrso.blogspot.com/2020/08/new-cases-against-russia-communicated.html">violent hate crime</a>, the <a href="https://echrso.blogspot.com/2020/08/new-cases-against-russia-communicated.html">deportation of a gay man</a> to a country where he would be at risk, and <a href="https://echrso.blogspot.com/2020/11/european-court-of-human-rights.html">"homosexual propaganda" laws</a>.</span></p><p><span style="font-family: arial;">A case against the United Kingdom concerning refusal to supply a gay man with a <a href="https://echrso.blogspot.com/2020/03/gay-cake-case-communicated-by-european.html">commercial service</a>. </span></p><p><span style="font-family: arial;">A case against Romania <span style="background-color: white;">brought by eight same-sex couples concerning the <a href="https://echrso.blogspot.com/2020/06/same-sex-couples-use-echr-to-challenge.html">lack of legal recognition of their relationships</a>.</span></span></p><p><span style="background-color: white;"><span style="font-family: arial;">Cases against Lithuania concerning <a href="https://echrso.blogspot.com/2020/07/european-court-of-human-rights.html">anti-gay hate speech</a>, and <a href="https://echrso.blogspot.com/2020/08/childrens-book-restricted-in-lithuania.html">restrictions placed on a book for children</a>.</span></span></p><p><span style="background-color: white;"><span style="font-family: arial;">Seven new cases against Poland concerning <a href="https://echrso.blogspot.com/2020/07/new-echr-cases-about-discrimination.html">different aspects of sexual orientation discrimination</a>. </span></span></p><p><span style="background-color: white;"><span style="font-family: arial;">A case against France concerning <a href="https://echrso.blogspot.com/2020/09/court-communicates-case-against-france.html">access to a child</a>.</span></span></p><p><span style="background-color: white;"><span style="font-family: arial;">A case against Greece, brought by 162 same-sex couples, concerning <a href="https://echrso.blogspot.com/2020/09/162-same-sex-couples-go-to-strasbourg.html">lack of relationship recognition</a>. </span></span></p><p><span style="font-family: arial;"><span style="background-color: white;">And a case against Croatia concerning</span> <span style="background-color: white;"><a href="https://echrso.blogspot.com/2020/11/was-lgbt-organization-denied-fair-trial.html">lack of access to a fair trial</a> in respect of an allegation of sexual orientation discrimination.</span></span></p><p><b><span style="font-family: arial;">Anniversaries</span></b></p><p><span style="font-family: arial;">There were a number of anniversaries this year connected to the Convention, and to sexual orientation discrimination, that I wrote about...</span></p><p><span style="font-family: arial;">In January, the<span style="background-color: white;"> UK celebrated the </span><a href="https://echrso.blogspot.com/2020/01/uk-celebrates-end-of-ban-on-gay-people.html">20th anniversary</a><span style="background-color: white;"> of the ban on gay people serving in the armed forces being lifted. The ban came to an end on 12th January 2000 and this was the direct result of judgments by the Court in 1999. </span></span></p><p><span style="background-color: white;"><span style="font-family: arial;">In November, <a href="https://echrso.blogspot.com/2020/11/the-echr-is-70-years-old-and-struggle.html">the Convention had its 70th birthday</a>.</span></span></p><p><span style="font-family: arial;"><span style="background-color: white;">Also in November, the UK celebrated the <a href="https://echrso.blogspot.com/2020/11/20th-anniversary-of-equalization-of-age.html">20th anniversary</a> of the legislation that brought about an equal "age of consent", which was significantly encouraged by litigation under the Convention. </span><span style="background-color: white;">I summarised the legal history in a piece for </span><a href="https://www.openlynews.com/i/?id=ecbed8d5-1038-4c6d-91ec-a54251c96a20" style="background: rgb(255, 255, 255); color: #bf8b38; text-decoration-line: none;">Openly</a><span style="background-color: white;"> (which can be heard as a short </span><a href="https://soundcloud.com/paul-johnson-364432197/the-legal-journey-to-an-equal-age-of-consent-in-the-uk" style="background: rgb(255, 255, 255); color: #bf8b38; text-decoration-line: none;">podcast</a><span style="background-color: white;">). </span></span></p><p><span style="background-color: white;"><span style="font-family: arial;">December brought the <a href="https://echrso.blogspot.com/2020/12/65th-anniversary-of-first-gay-rights.html">65th anniversary</a> of the very first case brought under the Convention concerning sexual orientation discrimination. </span></span></p><p><span style="background-color: white;"><b><span style="font-family: arial;">Other entries on the blog</span></b></span></p><p><span style="background-color: white;"><span style="font-family: arial;">In January, I wrote a piece about <a href="https://echrso.blogspot.com/2020/01/uk-universities-freedom-of-expression.html">UK universities, freedom of speech, and trans issues</a>. </span></span></p><p><span style="font-family: arial;"><span style="background-color: white;">In June, I detailed an article that I wrote i</span><span style="background-color: white;">n the European Human Rights Law Review </span><span style="background-color: white;">about </span><a href="https://echrso.blogspot.com/2020/06/gender-critical-beliefs-and-echr.html">"gender critical" beliefs</a><span style="background-color: white;">.</span></span></p><p><span style="background-color: white;"><span style="font-family: arial;">In September, I wrote a piece about <a href="https://echrso.blogspot.com/2020/09/lgbt-people-in-uk-should-prepare-to.html">why LGBT people in the UK should prepare to defend their human rights</a>.</span></span></p><p><span style="font-family: arial;"><span style="background-color: white;">In October, I made available </span><span style="background-color: white;">an updated <a href="https://echrso.blogspot.com/2020/10/chapter-on-lgbt-people-council-of.html">chapter</a> that aims to provide a comprehensive but condensed assessment of the historical development and current state of human rights protection offered to LGBT people by the Council of Europe and, importantly, identify the gaps that currently exist in that protection. </span></span></p><p><span style="font-family: arial;"><span style="background-color: white;">Also in October, I made available</span><span style="background-color: white;"> a draft of a new research <a href="https://echrso.blogspot.com/2020/10/faith-based-objections-to-inclusion-of.html">article</a>, written with Silvia Falcetta, which examines faith-based objections to the inclusion of LGBT content in "relationships education" in primary schools in England.</span></span></p><p><span style="background-color: white;"><b><span style="font-family: arial;">Blog readership</span></b></span></p><p><span style="background-color: white;"><span style="font-family: arial;">In the last year, the blog has been visited 51,500 times:</span></span></p><p></p><div class="separator" style="clear: both; text-align: center;"><a href="https://1.bp.blogspot.com/-OjdYKTJDakY/X95sSuICt8I/AAAAAAAACjU/ZP3QUHVKFms47InvVGbkHhnd1JnaBfs7QCLcBGAsYHQ/s1536/Screenshot%2B2020-12-19%2Bat%2B21.01.46.png" style="margin-left: 1em; margin-right: 1em;"><span style="font-family: arial;"><img border="0" data-original-height="574" data-original-width="1536" height="239" src="https://1.bp.blogspot.com/-OjdYKTJDakY/X95sSuICt8I/AAAAAAAACjU/ZP3QUHVKFms47InvVGbkHhnd1JnaBfs7QCLcBGAsYHQ/w640-h239/Screenshot%2B2020-12-19%2Bat%2B21.01.46.png" width="640" /></span></a></div><span style="font-family: arial;"><br /></span><div class="separator" style="clear: both; text-align: justify;"><span style="background-color: white; text-align: left;"><span style="font-family: arial;">The readership of the blog is global, and four of the top ten countries for readership are outside of the Council of Europe:</span></span></div><div class="separator" style="clear: both; text-align: justify;"><span style="background-color: white; text-align: left;"><span style="font-family: arial;"><br /></span></span></div><div class="separator" style="clear: both; text-align: justify;"><div class="separator" style="clear: both; text-align: center;"><a href="https://1.bp.blogspot.com/-haQ5A26e2Gs/X95slBapjaI/AAAAAAAACjk/c8KYaXfinuIzDQpmNhz3hudt3h9vn0aMQCLcBGAsYHQ/s1266/Screenshot%2B2020-12-19%2Bat%2B21.08.47.png" style="margin-left: 1em; margin-right: 1em;"><span style="font-family: arial;"><img border="0" data-original-height="682" data-original-width="1266" height="344" src="https://1.bp.blogspot.com/-haQ5A26e2Gs/X95slBapjaI/AAAAAAAACjk/c8KYaXfinuIzDQpmNhz3hudt3h9vn0aMQCLcBGAsYHQ/w640-h344/Screenshot%2B2020-12-19%2Bat%2B21.08.47.png" width="640" /></span></a></div><span style="font-family: arial;"><br /><span style="background-color: white; text-align: left;"><br /></span></span></div><div class="separator" style="clear: both; text-align: justify;"><span style="font-family: arial;"><span style="background-color: white; text-align: left;">The all-time visits for the blog, since it was founded in February 2013, is </span><span color="rgba(0, 0, 0, 0.87)" style="background-color: white; text-align: left;">331,526.</span></span></div><p></p>Paul Johnsonhttp://www.blogger.com/profile/03461850697230434763noreply@blogger.com0tag:blogger.com,1999:blog-7100925932021210247.post-30070530067303999372020-12-08T23:17:00.000+00:002020-12-08T23:17:59.773+00:0065th anniversary of first gay rights case under the European Convention on Human Rights<p class="p1" style="font-stretch: normal; font-variant-east-asian: normal; font-variant-numeric: normal; line-height: normal; margin: 0px;"></p><div class="separator" style="clear: both; text-align: center;"><a href="https://1.bp.blogspot.com/-O5WtA5xU98I/X9ADeQbTpJI/AAAAAAAACio/zSFvmhq98q419A8y1JdUrPlK5LOL6HGaQCLcBGAsYHQ/s2048/IMG_2117.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="2048" data-original-width="1536" height="400" src="https://1.bp.blogspot.com/-O5WtA5xU98I/X9ADeQbTpJI/AAAAAAAACio/zSFvmhq98q419A8y1JdUrPlK5LOL6HGaQCLcBGAsYHQ/w300-h400/IMG_2117.jpg" width="300" /></a></div><span style="font-family: arial;"><p class="p1" style="font-stretch: normal; font-variant-east-asian: normal; font-variant-numeric: normal; line-height: normal; margin: 0px;"><span style="font-family: arial;"><br /></span></p></span><span style="font-family: arial;">This month marks the 65th anniversary of the first decision taken on a case concerning sexual orientation discrimination brought under the European Convention on Human Rights. <br /><br />The case originated in an application, lodged with the (now abolished) European Commission of Human Rights, by a man (Mr W.B.) who was in prison in Germany. <br /><br />Mr W.B. was in prison following his conviction for "homosexual offences". <br /><br />Mr W.B. submitted his application to the Commission on 10th October 1955 (three months after the Commission become able to receive individual applications in July 1955) and the Commission gave its decision on 17th December 1955. <br /><br />The Commission declared Mr W.B.'s application inadmissible.<br /><br /><b>W.B. v The Federal Republic of Germany - the case and the applicant<br /></b><br />When Mr W.B. lodged his application with the Commission he was serving a fifteen-month term of imprisonment in Germany for "two cases of homosexuality" contrary to Paragraph 175 of the German Criminal Code. Mr W.B.'s offences were said to have involved "attempted serious homosexuality" contrary to Paragraph 175a of the Criminal Code. <br /><br />These provisions of the Criminal Code were in force in the form enacted by the National Socialist German Workers’ (Nazi) Party in 1935 and criminalized sexual acts between men. During the Nazi era, these provisions underpinned the arrest and prosecution of tens of thousands of gay men, thousands of which were imprisoned, tortured and murdered in concentration camps. Following the end of Nazi Germany, and the subsequent establishment of the Federal Republic of Germany (West Germany), these provisions remained in force at the time that Mr W.B. was convicted.<br /><br /><i><b>What do we know about Mr W.B.?</b><br /></i><br />The only things that we can know about Mr W.B. are from the very brief account provided by the Commission – the extent of which runs to one side of typed A4 paper. <br /><br />The Commission’s case file will undoubtedly contain more extensive information but all of the Commission’s files are confidential and cannot be accessed. I have been unable to locate domestic records, but I do know that the court records concerning Mr W.B.'s conviction have been destroyed. <br /><br />We don't know how old Mr W.B. was at the time he was in prison. All we know is that when he made his application to the Commission, Mr W.B. had served thirteen months in prison and, by the time the Commission issued its decision, he would have been just about to reach the end of his sentence. <br /><br /></span><div><span style="font-family: arial;">One thing we can say about Mr W.B. is that he must have had some legal awareness, some knowledge, of the Convention and the Commission. The Commission was newly established, and he took the initiative of submitting a complaint to it. We have no idea why he did this, but we must assume that he became aware of the existence of the Commission and, looking to it as a sort of international court of appeal, tried to use it to challenge both his conviction and his sentence. <br /><br />We don’t know whether Mr W.B. had legal assistance. Although it later became common for people in prison to write to the Commission without the assistance of a lawyer, in 1955 this was certainly very novel. <br /><br /><b><i>What was the nature of Mr W.B.'s offences?<br /></i></b><br />We do not know the exact nature of Mr W.B.'s offences, because no details are given in the Commission's published decision.<br /><br /></span></div><div><span style="font-family: arial;">The key provision under which Mr W.B. was convicted, Paragraph 175, criminalized “unzucht” between males. The word “unzucht” is difficult to translate because, similar to the word “buggery” in English law, its meaning is fixed to a historical and cultural context. The nearest translation might be “fornication”, but it could also be translated as “lewdness”.<br /><br />Essentially, what Paragraph 175 enforced was a total prohibition of same-sex sexual acts between men.<br /><br />Mr W.B. was also convicted under Paragraph 175a which made provision for so-called “serious” cases of fornication or lewdness between males, which fell into four classes: the use of compulsion by one male on another to commit a sex offence; an abuse of dependence (such as in employment) by one male upon another; seduction by a male over 21 of a person under 21; and public displays of sexual acts, including soliciting. <br /><br />In terms of the “two cases of homosexuality” that Mr W.B. was said to have engaged in, we can assume that he had committed a sexual act with one or more persons. However, we cannot know the precise details of “serious homosexuality” that Mr W.B. was said to have “attempted”. <br /><br /><b><i>Mr W.B.'s complaint to the Commission<br /></i></b><br />Mr W.B. complained to the Commission about both his conviction and the legislation under which it was secured. He invoked a wide range of Articles of the Convention (Articles 2, 8, 14, 17, and 18). <br /><br />The Articles chosen by Mr W.B. show him to be a very creative interpreter of the Convention. The use of Article 2, in particular, is striking because it suggests that Mr W.B. was interpreting the “right to life” in the broadest sense of that term.<br /><br /></span></div><div><span style="font-family: arial;">Under Article 8, Mr W.B. complained that Paragraphs 175 and 175a infringed the "right to privacy"; under Article 8 taken in conjunction with Article 14, he complained that, to the extent that Paragraphs 175 and 175a were limited to men, this infringed "the principle of sexual non-discrimination". <br /><br /><b><i>The Commission's decision<br /></i></b><br />The Commission focused on the complaints made under Articles 8 (right to respect for private and family life) and 14 (prohibition of discrimination). <br /><br />In respect of Article 8, the Commission briefly stated that "the Convention permits a High Contracting Party to legislate to make homosexuality a punishable offence" because "private and family life may be the subject of interference" by the laws "dealing with the protection of health or morals". <br /><br />In respect of Article 14, the Commission stated that the Convention "does not exclude the possibility of a High Contracting Party differentiating between the sexes in the measures it takes with regard to homosexuality for the protection of health or morals". <br /><br />On this basis, the Commission declared the application inadmissible, as manifestly ill-founded. <br /><br /><b>The importance of Mr W.B.'s case<br /></b><br />Although the Commission rejected Mr W.B.'s application - thus resulting in a personal failure for him - it did establish something important. <br /><br />When declaring the application inadmissible, the Commission, under old Article 27 § 2 of the Convention, had the capacity to declare it to be: </span></div><div><span style="font-family: arial;"><br /></span></div><div><span style="font-family: arial;">incompatible with the provisions of the Convention, </span></div><div><span style="font-family: arial;">manifestly ill-founded, or</span></div><div><span style="font-family: arial;">an abuse of the right of petition.</span></div><div><span style="font-family: arial;"><br />In specifying that Mr W.B.'s application was “manifestly ill-founded” the Commission implicitly established the principle that a complaint about the criminalization of homosexual acts was not “incompatible with the provisions of the Convention” (or, indeed, “an abuse of the right of petition”). <br /><br />This was a success of sorts because, in future, it meant that applicants could be reassured that their complaints about sexual orientation discrimination fell within the ambit of Convention rights and that states had to provide a justification for an inference with the rights in question. <br /><br />Therefore, although the Commission was prepared to accept that Nazi-formulated law was compatible with the Convention, its rejection of the complaint produced what can be seen as a victory for lesbian and gay human rights because it provided a framework for future complaints. <br /><br /></span></div><div><span style="font-family: arial;">Mr W.B.'s case established that there were two major battles that had to be waged: first, the Commission had to be persuaded that a person’s right to engage in private, consensual and adult same-sex sexual acts must supersede concerns about public health or social morality; and, second, the Commission had to be persuaded that differentiating between people on the grounds of their sexual orientation, to single them out for criminal regulation, amounted to discrimination contrary to Article 14.<br /><br /></span></div><div><span style="font-family: arial;">In simple terms, Mr W.B.'s case became the key reference point – it was the case that had to be overturned and defeated in order to establish a human right to engage in same-sex sexual acts. <br /><br /><b>Year after year, decade after decade...<br /></b><br />The Council of Europe regarded the decision on Mr W.B.'s case as a sign that the Convention was working appropriately. Less than a year after the decision, the Directorate of Human Rights, in an effort to allay "certain fears … that recognition of the right of individual recourse to an international tribunal might lead to abuse", cited it as evidence that <br /><br /><i>"the European Commission of Human Rights now seems equipped to ensure observance of the fundamental rights and freedoms essential to the satisfactory operation of European democratic regimes, without thereby opening the door to abuses prejudicial to the effectiveness of its work and to the legitimate interests of governments."</i><br /><br />But year after year, decade after decade, following Mr W.B.'s case, gay men submitted applications to the Commission complaining about cruel laws that criminalized same-sex sexual acts. <br /><br />Finally, twenty-six years after the decision on Mr W.B.'s case, the European Court of Human Rights established that the complete criminalization of same-sex sexual acts between men amounted to a violation of Article 8 of the Convention.<br /><br /><b>Knowing our history, protecting our rights</b><br /><br />Understanding the history of the development of LGBT human rights under the Convention is not a dry academic exercise. Rather, it is - in my view - a vital and necessary component of protecting the human rights we enjoy today, and ensuring those rights survive in the future. <br /><br />The human rights LGBT people enjoy today in Europe arose from struggle and suffering. Real people, like Mr W.B, who were imprisoned for being gay, suffered greatly, and struggled to use the law to change the world they lived in. <br /><br />The human rights we enjoy today are not guaranteed. We could, at any moment, go back to living in a time like the one Mr W.B. lived in. We need to, therefore, guard our precious rights, and ensure they continue to exist. <br /><br />One way of doing this is to understand the history of how our rights emerged and developed. Understanding our history equips us with knowledge of what is at stake, and what will happen if we let our rights be diminished. <br /><br />For a condensed overview of the development of LGBT rights under the Convention, see here: <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2927098">https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2927098</a><br /></span><br /></div>Paul Johnsonhttp://www.blogger.com/profile/03461850697230434763noreply@blogger.com0