ECHR and sexual orientation - 2014 in review
As 2014 draws to a close, I thought it worthwhile to review the decisions and judgments of the European Court of Human Rights over the last 12 months in respect of complaints regarding sexual orientation discrimination, as well as to detail those complaints which were communicated and are pending consideration.
May I take this opportunity to thank all readers of this blog for their interest. May I especially thank all those who have made a contribution to the blog or who have written to me about it.
I wish you all a very happy new year!
In April, the Court issued an interesting and important judgment, in Mladina d.d. Ljubljana v Slovenia, which upholds the right, under Article 10 of the Convention, to express criticism of homophobia. The Court was considering a complaint brought by the private company, Mladina d.d. Ljubljana, who is the publisher of the weekly magazine 'Mladina'. I wrote that the Court's judgment is important because it establishes an effective right to robustly contest homophobic speech and gestures in public.
In June, the Court continued its long-standing approach of rejecting complaints from homosexual applicants who face expulsion to countries that criminalise homosexual sexual acts. In M.E. v Sweden, a Libyan national currently living in Sweden complained to the Court about his threatened expulsion from Sweden to Libya where, he alleged, he would be at risk of persecution and ill-treatment because he is a homosexual. I outlined the judgment and, in particular, the Dissenting Opinion of Judge Power-Forde (Ireland). I also considered here why Judge De Gaetano feels it necessary to use scare quotes when writing about the marriage of a same-sex couple. In November, the Court announced that the complaint will be referred to the Grand Chamber for consideration at the applicant's request.
In July, the Court gave perhaps its most important judgment of the year in respect of sexual orientation discrimination. In Hämäläinen v Finland, the Grand Chamber, confirming an earlier Chamber judgment, held that Finland, in requiring a transexual person to transform an opposite-sex marriage into a same-sex civil partnership in order to obtain full recognition of their gender, did not violate any aspect of the Convention. The Court rejected the applicant’s complaint under Article 8 and, like the Chamber before it, did not consider the Article 12 complaint. It further rejected an Article 14 complaint. In doing so, the Court again asserted the view that the Convention does not impose an obligation on States to grant marriage rights to same-sex couples. I wrote about the judgment here, specifically about the Grand Chamber’s interpretation of Article 12 here, and about the issues of sexual orientation and religion here. The applicant’s lawyer, Constantin Cojocariu, provided a ‘preview’ of the judgment for the blog here. And Silvia Falcetta, of the University of Milan, wrote a guest post on the judgment for the blog here.
In April, the Court deemed the complaints in F.J. and E.B. v Austria inadmissible. I wrote that the decision was extremely problematic because it conflated the issue of discrimination based on sexual orientation arising from an unequal 'age of consent' with the treatment of persons suspected of having committed child sex offences.
In July, the Court struck H.Ç. v Turkey from its list. The complaint concerned the existence of law which had the effect of criminalising certain male homosexual acts between consenting adults in the Turkish Republic of Northern Cyprus (TRNC). After the complaint was lodged with the Court, the TRNC government announced that they planned to amend the law and these changes came into effect on 7 February 2014. As a result, the applicant in H.Ç. v Turkey withdrew his complaint and the Court decided to strike the application out of its list of cases. With the resolution of this case comes the end of nearly six decades of litigation in the Court relating to the blanket criminalisation of certain same-sex sexual acts in European states. None of the 47 Council of Europe states contracted to the Convention now operate a prohibition on same-sex sexual acts between consenting adults.
In September, the Court declared the complaint in E.B. v Austria inadmissible. This follows the decision in F.J. and E.B. v Austria, detailed above, which involved the same applicant. I wrote about the case for the European Courts website here, arguing that the decision was appropriate but problematically reasoned.
Cases communicated in 2014
Right at the end of last year the Court communicated two complaints against Italy which concern same-sex marriage. In Orlandi and Others v Italy the applicants, six same-sex couples who were all married whilst abroad (in Canada, the United States, and the Netherlands), complain about the refusal of the Italian domestic authorities to recognise their marriage. In Oliari and Others v Italy three same-sex couples complain that their inability to marry or enter into a recognized civil union constitutes discrimination on the grounds of sexual orientation. Italy does not provide any recognition of same-sex relationships, either by way of civil partnership or marriage.
Also at the end of last year the Court communicated the complaint in Aghdgomelashvili and Japaridze v Georgia in which the applicants, who work for the organization 'Inclusive Foundation', complain about homophobic treatment by police officers. The complaint focuses on a raid by the police of the office of 'Inclusive Foundation' in Tbilisi, in which the police used homophobic language (such as calling the applicants 'sick persons' and 'perverts') and subjected the applicants to humiliating treatment (such as strip searching them).
In January, the Court communicated the complaint in Sabalić v Croatia. The complaint concerns the lack of an appropriate procedural response by domestic authorities following an act of violence by a private party motivated by antipathy towards homosexuality. The applicant suffered an attack in a bar by a man to whom she had disclosed her (homo)sexual orientation. She was hit and kicked all over her head and body causing her multiple contusions on the head and forehead, face, lips, neck, chest, palms of her hands and her knees. During the attack, the man shouted that all lesbians should be killed. The attacker of the applicant was prosecuted for a minor offence and subject to a fine of 40 Euros.
In June, the Court communicated the complaint in Đorđević and Others v Serbia. The applicants complain that interference in the organization of, and refusals to permit, ‘gay pride’ events constitute a violation of Articles 10 and 11 of the Convention and, because this is based on sexual orientation, Article 14.
In September, the Court communicated the complaint in Kostadinov v Bulgaria.The applicant, along with more than 80 other people, was arrested during the first Gay Pride event in Sofia in 2008. The arrests were made in the context of a heavy police presence at the event as a result of threats of violence against gay men and lesbians from far-right groups. The applicant claims he showed no sign of aggression towards the participants of Gay Pride and had no intention to be violent towards them. In his complaint to the Court, the applicant submits that the circumstances of his arrest - in particuar the fact that he was forced to remain for 30 minutes on the ground before the eyes of many passers-by and journalists, the unwarranted use of force against him, his transport to the police station and detention for more than nine hours in undignified conditions - amount to inhuman and degrading treatment contrary to Article 3 of the Convention. Under Article 3 of the Convention he also complains that the authorities have failed in their obligation to conduct an effective investigation into his allegations of abuse.
In October, the Court communicated the complaint in Sousa Goucha v Portugal. The applicant is a well-known male television presenter in Portugal. Since 2008, it has been publicly known that he is gay. On 28 December 2009 one of the channels of the national television service (RTP2) broadcast a live talk-show. In the course of the programme, during a quiz, the following question was asked to the guests: 'Who is the best Portuguese female TV presenter?' The possible answers to the question included the name of three female TV presenters and the applicant’s (which was designated as the correct one). The applicant was unsuccessful in the domestic courts with regard to his complaint that he was the victim of defamation and insults. In his complaint to the Court, the applicant relies on Article 14 of the Convention, taken with Article 8, to complain that he has been discriminated against by the domestic courts on the grounds of his homosexuality.