H.Ç. v Turkey - scope for evolution in ECHR jurisprudence?

On Monday I reported that the European Court of Human Rights have issued Questions to the Parties in the communicated case of H.Ç. v Turkey. The case concerns a complaint about Articles 171, 172 and 173 of the Criminal Code of the 'Turkish Republic of Northern Cyprus' which have the effect of criminalising certain homosexual acts between consenting adult males.

At first glance, this appears to be an 'open and shut' case. Following Dudgeon v the United Kingdom, Norris v Ireland, and Modinos v Cyprus, one would expect the Court to find that the nature of the interference with private sexual conduct (recognised as an aspect of private life protected by Article 8) 'by reason of its breadth and absolute character, is, quite apart from the severity of the possible penalties provided for, disproportionate to the aims sought to be achieved' (Dudgeon § 61). This, as such, would appear to add little to the Court's settled jurisprudence in this area.

However, the complaint in H.Ç. v Turkey does not only concern Article 8. There are three aspects to the applicant's complaint:

  1. The applicant maintained that the criminalisation of homosexual relations constituted an interference with human dignity amounting to degrading treatment within the meaning of Article 3 of the Convention
  2. The applicant complained that the maintenance in force of those provisions of the Criminal Code which criminalise homosexual relations constituted an unjustified interference with his rights as protected by Article 8 of the Convention. 
  3. The applicant also claimed to be a victim of discrimination, in breach of Article 14 taken in conjunction with Article 8.
It is the Article 3 and 14 complaints which provide the Court with the scope to significantly evolve its jurisprudence in this area.

Previous jurisprudence

Article 14 

In its previous considerations of the criminalisation of private and consensual homosexual acts the Court has never found a violation of Article 14. 

In Dudgeon v the United Kingdom, the Court held that there was no need to consider the Article 14 complaint because it 'amounts in effect to the same complaint, albeit seen from a different angle, that the Court has already considered in relation to Article 8' (§ 69). The Court reiterated this in 2001 in the similar facts case A.D.T. v the United Kingdom. Neither Norris v Ireland or Modinos v Cyprus involved an Article 14 complaint.

Article 3

The Court has never considered an Article 3 complaint in respect of the blanket criminalisation of private and consensual homosexual acts. All previous Article 3 complaints that were brought about criminalisation were deemed inadmissible by the former European Commission on Human Rights (for a historical analysis of Article 3 complaints, see my book Homosexuality and the European Court of Human Rights). Indeed, until X. v Turkey in 2012 the Court had never upheld an Article 3 complaint brought in respect of any issue relating to sexual orientation (see my commentatory in Jurist). 

The Article 3 complaint that was made about the prohibition on homosexuality in the armed forces in Smith and Grady v the United Kingdom was ultimately unsuccesful. However, in response to the applicants' claim that they had been subject to invasive investigations into their private lives and discriminatory treatment based on crude stereotyping and prejudice, the Court held that it 'would not exclude that treatment which is grounded upon a predisposed bias on the part of a heterosexual majority against a homosexual minority of the nature described [by the applicants] could, in principle, fall within the scope of Article 3' (§ 119). 

The Smith and Grady judgment is a solid foundation on which to argue that the very existence of law that places individuals under the constant threat of arrest, investigation, prosecution, and imprisonment solely for engaging in private and consensual sexual acts amounts to degrading treatment contrary to Article 3. 

Why is recognition under Articles 3 and 14 important?

Given that Northern Cyprus is the last jurisdiction to criminalise private and consensual male homosexual acts, the Court's judgment in this case might seem unimportant. Since it will not effect any other Council of Europe state, why should we care if the Court recognises the complaint under Articles 3 and 14?

One reason is that the Court's jurisprudence is very important in other jurisdictions around the world, both in terms of how it is applied by national and regional courts and how it is utilised by individual litigants.

A judgment by the Court which held that the criminalisation of private and consensual male homosexual sex constitutes both discriminatory and degrading treatment would send a strong message to those states around the world that continue to enforce such laws. It would also provide litigants with an important legal instrument in contesting continued criminalisation. 

Is the Court likely to uphold the Article 3 and 14 complaints?

Looking at its previous jurisprudence, it would appear unlikely.

Also, in the Questions to the Parties, the Court has excluded all but the Article 8 complaint:

"Having regard to Articles 171-173 of the Criminal Code of “Turkish Republic of Northern Cyprus” and in light of the case Modinos v. Cyprus (22 April 1993, Series A no. 259), has there been a violation of the applicant’s right to respect for his private life, contrary to Article 8 of the Convention?"

However, it is to be hoped that the applicant pursues the Article 3 and 14 complaints and that a positive outcome prevails.