|Posted: 14 Jan 2021 02:38 PM PST – (c) Paul Johnson – http://echrso.blogspot.com/|
The First Section of the European Court of Human Rights has today given its judgment in Sabalić v Croatia. The case concerns Ms Pavla Sabalić’s complaint about a lack of an appropriate response of the Croatian authorities to a homophobic act of violence against her.The factsOn 13 January 2010, Ms Sabalić was physically attacked in a nightclub in Zagreb where she was with several of her friends. The attack ceased only after one of the Ms Sabalić’s friends used her gas pistol to frighten off the attacker. The police report records the incident as follows:“While they were in the nightclub [Ms Sabalić] was approached by an unidentified man who started flirting with her but she was constantly refusing him. After the nightclub closed they were all standing in front of it and the man continued pressing [Ms Sabalić ] 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 ground he continued kicking her.” The Zagreb Police Department was informed of the incident and two police officers immediately responded at the scene. 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.Ms Sabalić 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.Proceedings after Ms Sabalić’s attackFollowing the incident the police interviewed Ms Sabalić and M.M., and the other participants in the event in connection with M.M.’s physical attack.The police instituted minor offences proceedings in the Minor Offences Court against M.M. for breach of public peace and order. Before the Minor Offences Court, M.M. confessed to the charges against him. No further evidence was taken and Ms Sabalić was not informed of the proceedings. The Minor Offences Court found M.M. guilty as charged of breach of public peace and order and fined him 300 Croatian kunas (approximately 40 Euros).After having realised that the police had failed to institute a criminal investigation, Ms Sabalić lodged a criminal complaint with the Zagreb Municipal State Attorney’s Office against M.M. for the offences of attempted grave bodily injury, motivated by hate crime, and the criminal offence of discrimination.On the basis of Ms Sabalić’s 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.Complaint to the CourtMs Sabalić 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.Article 3 + 14 complaintThe 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.
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.
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.
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.
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).
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.
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.
Partly concurring opinion of Judge Krzysztof Wojtyczek (First Section President)Judge Wojtyczek raised the concern that, in essence, the Court had implicitly established – whether or not it so intended – that M.M. committed an act which may be characterised as a criminal offence, that M.M. is guilty of this offence, and that a much more severe punishment should have been imposed upon him by the domestic courts. Judge Wojtyczek stated that this raised serious questions about M.M.’s fundamental rights.Brief commentThis 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.
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. This is remarkable because individuals in Europe have been arguing since 1959 that forms of ill-treatment based on sexual orientation amount to a violation of Article 3. Dr Silvia Falcetta and I have written a history of Article 3 and sexual orientation discrimination here. 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 here). 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 duty to combat hate crimes directed at people on the basis of their sexual orientation.
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Germany: Two mothers on Paula’s birth certificate?Rainbow family fights discrimination in court because of need for social mother to adopt proper child
A rainbow family in Lower Saxony no longer wants to accept discrimination – and is suing for equal treatment with heterosexual families.
Israel declassifies being trans as a mental disorder in ‘important and significant step for the community’
Germany: Law on Transgender Persons – Ten years ago, Federal Constitutional Court declared the sterilization requirement unconstitutional
Since 2011, “permanent inability to reproduce” is no longer a prerequisite for trans people to be allowed to change their gender registration. To date, however, the federal government has not removed the discriminatory passage from the text of the law.
South Africa: Lesbian couple forced to take legal action after sperm donor tries to claim parental rights
A Johannesburg couple are litigating against their sperm donor, who is demanding he be recognised as father (Envato)
A lesbian couple in South Africa have been forced to take legal action against their sperm donor, who is demanding parental rights to their child.
USA: Colorado updates definition of common-law marriage to include LGBTQ+ couples
The Colorado Supreme Court updated the definition of common-law marriage to include LGBTQ+ individuals with three rulings handed down on Monday. The decisions also retroactively recognize same-sex common-law marriages entered into before the 2015 Obergefell v. Hodges decision.
Common law marriages are relationships that resemble marriage but lack official records to verify that union. Whether a common law marriage exists depends on a couple’s “mutual consent … to enter the legal and social institution of marriage, followed by conduct manifesting that mutual agreement.”
Colorado courts previously used a list of factors called the Lucero test to judge whether a couple’s conduct signified a common-law marriage. These factors included cohabitation, joint bank accounts and “use of the man’s surname by the woman or by children born to the parties.”
Justice Monica Márquez explained that “the gender-differentiated terms and heteronormative assumptions of the Lucero test render it ill-suited for same-sex couples.” She also recognized that customs traditionally associated with marriage “have become less reliable indicators of a marital relationship.” More unmarried couples are living together than before and fewer people are taking their partner’s last name, noted Márquez.
Monday’s rulings replaced the reliance on these factors. Under the new test, the most important determinant of a common-law marriage is the couple’s agreement upon the existence of a marriage. If the couple does not agree, their conduct is used to fill in the gaps. But bright-line factors will no longer make or break the existence of a marriage.
The post Colorado updates definition of common-law marriage to include LGBTQ+ couples appeared first on JURIST – News – Legal News & Commentary.
USA: Donald Trump’s HHS finalizes rule rolling back nondiscrimination protections for LGBTQ individuals
With less than two weeks left in office, Donald Trump’s administration announced on Friday a new rule that narrows nondiscrimination protections for LGBTQIA individuals seeking services of health and welfare programs that are funded by the United States Department of Health and Human Services (HHS).
This rule narrows LGBTQIA non-discrimination protections that were previously in 45 CFR 75.300(c) which barred discrimination without merit based on factors such as age, disability, sex, race, color, national origin, religion, gender identity, or sexual orientation in receiving benefits of HHS programs.
One example of the new rule changing treatment for the LGBTQIA community is that the original 45 CFR 75.300(d) required grant recipients to treat same-sex marriages as valid. The newly amended rule instead permits a change in treatment of same-sex marriages based on later Supreme Court rulings.
In its 86-page release adopting the rule HHS said that they are “committed to the principle that every person must be treated with dignity and respect and afforded all of the protections of the Constitution and statutes enacted by Congress – and to fully enforcing such civil rights protections and requirements.”
HHS presented explanations for creating a rule that contradicts this statement. Their release says that if they continue enforcing the rule as currently written in § 75.300(c) and (d) they will disrupt “the balance struck by Congress with respect to nondiscrimination requirements applicable to grant recipients.” HHS also cited evidence of accommodation requests and lawsuits as proof that the current rule violates the Religious Freedom Restoration Act, 42 U.S.C. 2000bb–2000bb-4 (RFRA). Lastly, the release by HHS also refers to the current rule leading to a decrease in “effectiveness of Department-funded programs by deterring participation in them.”
This rule will go into effect 30 days after publication in the Federal Register.
Peter Allan Memorial Lecture: LGB Human Rights in Europe, Taiwan, and Hong Kong by Prof Wintemute
Sex change to become easier in Switzerland
Transgender and intersex people will be able to change their name and sex more easily in the official civil register following moves by the Swiss parliament. On Wednesday, the House of Representatives eliminated its last difference with the Senate to make this possible. In future, transgender and intersex people will be able to change their name and sex in the civil register without bureaucratic complications. There will no longer be any medical examinations or other prerequisites. Every year, about 40 children are born with indeterminate sex at birth. However, the law currently requires that they must be registered within three days with their sex and first name, which can only be changed later through an administrative or judicial procedure. At the same time, there are several hundred transgender people in Switzerland. Between 100 and 200 people have undergone or are considering an operation to change their sex. The last point of contention between the two houses of…
(c) Paul Johnson,
|65th anniversary of first gay rights case under the European Convention on Human Rights |
Posted: 08 Dec 2020 03:17 PM PST
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.
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.
Mr W.B. was in prison following his conviction for “homosexual offences”.
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.
The Commission declared Mr W.B.’s application inadmissible.
W.B. v The Federal Republic of Germany – the case and the applicant
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.
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.
What do we know about Mr W.B.?
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.
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.
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.
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.
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.
What was the nature of Mr W.B.’s offences?
We do not know the exact nature of Mr W.B.’s offences, because no details are given in the Commission’s published decision.
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”.
Essentially, what Paragraph 175 enforced was a total prohibition of same-sex sexual acts between men.
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.
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”.
Mr W.B.’s complaint to the Commission
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).
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.
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”.
The Commission’s decision
The Commission focused on the complaints made under Articles 8 (right to respect for private and family life) and 14 (prohibition of discrimination).
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”.
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”.
On this basis, the Commission declared the application inadmissible, as manifestly ill-founded.
The importance of Mr W.B.’s case
Although the Commission rejected Mr W.B.’s application – thus resulting in a personal failure for him – it did establish something important.
When declaring the application inadmissible, the Commission, under old Article 27 § 2 of the Convention, had the capacity to declare it to be:
incompatible with the provisions of the Convention, manifestly ill-founded, or an abuse of the right of petition.
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”).
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.
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.
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.
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.
Year after year, decade after decade…
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
“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.”
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.
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.
Knowing our history, protecting our rights
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.
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.
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.
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.
For a condensed overview of the development of LGBT rights under the Convention, see here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2927098