Case about police raid on LGBT organisation in Turkey declared inadmissible by Court

Posted: 18 Feb 2021 01:39 PM PST- (c) Paul Johnson – ECHR Sexual Orientation Blog

The Second Section of the European Court of Human Rights has issued its decision in Lambdaistanbul LGBT Solidarity Association v Turkey, declaring the application inadmissible. 

The case concerns the search of the premises of Lambdaistanbul LGBTI Solidarity Association (“the Association”) by the police and the seizure of certain documents. 

The factsIn March 2008, the Istanbul Prefecture and the Police Department received an email from an individual accusing the Association of “lending its premises for the prostitution of persons presented as transvestites”.
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.

As a result, authorisation was sought for police officers to carry out a search of the Association premises.

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.

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.

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.

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.

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.

Complaints to the Court

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”.

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.

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”.

Decision of the Court

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.

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.

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.

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.

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.

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.

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.

The Court unanimously declared the complaint inadmissible.

Comment

This is a worrying decision by the Court that raises a number of questions.

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 transvestites often entered and left the premises, 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. 
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, “transvestites and transsexuals entered and left its premises”? 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. 
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.

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.

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?

ECtHR: Two new LGBT cases communicated by the Court against France and Moldova

Posted: 17 Feb 2021 02:10 PM PST (c) Paul Johnson:

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. 

Drelon v FranceMr Drelon has made two applications to the Court. 
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. 
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 being listed in the EFS files.
The Court has asked the Parties the following questions:

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? 
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? 
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?
[See also Tosto v Italy, which the Court decided to strike out.] 
Public Association Information Centre “GENDERDOC-M” v Moldova
The application concerns the authorities’ positive obligations in the context of hate speech by third parties. 
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. 
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. 
The case raises issues under Articles 8, 13 and 14 of the Convention.

The Court has asked the Parties the following questions:

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?

2. In particular, did the authorities comply with their positive obligations of preventing dissemination of statements calling for violence and discrimination against LGBT persons?
[See the previous judgment of the Court in respect of a complaint brought by GENDERDOC-M.]

LGBTI children in Iran are given electric shocks, UN report finds

The UN’s special rapporteur on the situation of human rights in Iran has expressed concern over reports that the country has subjected lesbian, gay, bisexual, and transgender (LGBT) children to “torture and cruel, inhuman, and degrading treatment.”

Read: https://www.rferl.org/a/un-expert-raises-alarm-over-reports-of-lgbt-child-torture-in-iran/31104181.html

Report: https://undocs.org/en/A/hrc/46/50

USA : House approves Equality Act to protect LGBTQ+ community from discrimination

The US House of Representatives approved a bill on Thursday that would amend the Civil Rights Act of 1964 to include protection from discrimination based on gender identity or sexual orientation. The bill, called the Equality Act, “prohibits discrimination based on sex, sexual orientation, and gender identity in areas including public accommodations and facilities, education, federal funding, employment, housing, credit, and the jury system.”

The Equality Act, which passed with a 224-206 vote, also defines gender identity, sex, and sexual orientation to be inclusive of stereotypes and gender-related characteristics. It acknowledges that the intersection of any of these characteristics might lead to discrimination based on any of the factors protected. For example, the bill states that a pregnant lesbian might be discriminated against for “her sex, her sexual orientation, her pregnancy, or on the basis of multiple factors.”

The bill not only amends the Civil Rights Act of 1964 by adding gender and sexual orientation to the list of factors that cannot be discriminated against, but also expands the places that may not discriminate based on these protected factors. The bill encompasses “any establishment that provides a good, service, or program,” such as a shopping center, food bank, or health care center; any transportation service, such as a taxi or bus service; and any recreational or public gathering or display, such as museums or amusement parks. It also prevents individuals from being denied access to public facilities, such as bathrooms and changing rooms that correspond to the individual’s gender identity.

The bill will now move to be considered by the Senate.

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Malaysia court deems Selangor state LGBT sex ban unconstitutional

The Federal Court of Malaysia on Thursday struck down a state law making LGBT sex a criminal offense. The court found that only the Parliament of Malaysia has the authority to make such actions an offense.

The case stems from a raid on a house in the state of Selangor where authorities charged 11 men with “attempt of sexual intercourse against the order of nature” under Section 28 the Syariah Criminal Offences (Selangor) Enactment 1995. The men were being monitored on the Chinese social media platform WeChat through an undercover operation that consisted of more than 50 religious police.

On appeal, the appellants argued that the legality of Section 28 is invalid because a state legislature does not have the authority to enact such legislation. Nine judges on the Federal Court agreed, stating, “creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List.”

Criminal Law in Malaysia comes under the Federal List law-making powers, exclusive to Parliament. This means that state legislators are unable to make decisions on laws that fall with Parliament’s jurisdiction when Parliament has not enacted Federal laws regarding that issue.

The decision has been described by several human rights groups as a “small but significant” step towards a more progressive society. Legal protection for the LGBT community is non-existent and same-sex intercourse is still criminal for non-muslims as well under Section 377A of the Penal Code.

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New Zealand to outlaw conversion therapy practices

The New Zealand government announced Sunday that it will pass legislation banning conversion therapy practices in the country by the end of this year or February next year at the latest.

Minister of Justice Kris Faafoi confirmed that the Ministry of Justice is drafting a new piece of legislation to effect the change by making conversion therapy practices a criminal offense, civil offense or both. Faafoi noted that conversion therapy practices, which are undertaken with the goal of changing a LGBTQIA+ person’s sexual orientation to heterosexual or gender identity to cisgender, cause serious harm to those subjected to it, who are often vulnerable youths.

“There is no therapeutic purpose or medical basis for these conversion practices … and we want to ensure the legislation passes as quickly as possible so the Rainbow community and all those affected by these abhorrent practices are protected,” Faafoi commented.

The move comes amidst significant criticism from the New Zealand public that conversion therapy can currently be practiced in the country. A petition launched by the Green Party this month asking the government to “urgently prioritize ending conversion therapy” amassed more than 158,000 signatures in nine days, echoing the efforts of many previous petitions.

In addition to the New Zealand public’s opposition to conversion therapy practices, most of the country’s major political parties have publicly taken their stance against such practices of late. The Labour Party, which currently has a majority in the House of Representatives given that it has 65 seats, committed to banning conversion therapy in its 2020 election campaign policies. The Green Party, which has 10 seats in the House and a cooperation agreement with the Labour Party, has long made its disagreement with conversion therapy clear. It celebrated the government’s Sunday announcement. The National Party, which has 33 seats in the House and has traditionally held “no view” on the topic and has floated concerns about a ban threatening freedom of speech, announced earlier this month that it supports outlawing conversion therapy after its leader Judith Collins Googled the issue and engaged in discussion with the party’s youth wing. The Māori Party, which has two seats in the House, stated last October that it would ban conversion therapy, noting that such practices have no place in the country. ACT New Zealand, which has 10 seats in the House, does not support the ban.

New Zealand’s move is couched within wider global opposition to conversion therapy. Organizations including the American Medical Association, the American Psychological Association and the American Counseling Association have taken public stances against the practice on account of its harmfulness and ineffectiveness. A poll conducted in 2019 for Reuters revealed that 56 percent of American adults support outlawing conversion therapy. Many countries have enacted nationwide bans against conversion therapy, including Brazil, Germany and Ecuador wherein those convicted of practicing conversion therapy can be imprisoned for up to 10 years under Article 151 of the 2014 Penal Code given that conversion therapy is considered torture in the country.

Faafoi said that the Ministry of Justice will consult with stakeholders as well as engaging in public consultation and scrutinizing the draft bill before it is passed into law.

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Hungary – The issue of gender identity in the Bill on the Ninth Amendment of the Fundamental Law

Read: https://www.equalitylaw.eu/downloads/5314-hungary-the-issue-of-gender-identity-in-the-bill-on-the-ninth-amendment-of-the-fundamental-law-121-kb

USA: Virginia constitutional amendment removes prohibition on same-sex marriage

On Friday the Virginia State Senate approved a constitutional amendment that removes the prohibition on same-sex marriage with a vote of 22-12. The amendment amends Section 15-A of Article I of the Virginia Constitution, which recognized as a valid marriage, only a union between a man and a woman. It failed to recognize any other ‘union, partnership, or other legal status to which [was] assigned the rights, benefits, obligations, qualities, or effects of marriage,’ which is an express prohibition on same-sex marriages.

The amendment also recognized the right to marry as a fundamental right inherent in the liberty of persons. While doing so, it follows the decision of the United States Supreme Court in Obergefell v. Hodges, where the majority held same-sex marriage bans to be violations of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The amendment now requires the Commonwealth and its political subdivisions and agents to issue marriage licenses, to recognize same-sex marriages, and treat all marriages equally under the law, regardless of the sex or gender of the parties to the marriage.

As per § 30-19 of the Code of Virginia, which provides for the procedure to amend the Constitution, the amendment shall now have to win a majority in next year’s General Assembly at its first regular session held after the next general election of members of the House of Delegates and shall require the people to approve and ratify it by the majority of the electors, to finally become a part of the Virginia Constitution.

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USA: Utah House passes bill banning transgender athletes from female sports

On Wednesday, the Utah House of Representatives passed the controversial HB302 Bill, “Preserving Sports for Female Students,” effectively banning transgender athletes from female sports. The Bill, which was introduced by Representative Kera Birkeland and passed 50-23, would now require public schools in Utah to designate athletic activities based on “sex,” and not “gender,” a move that effectively bans transgender female athletes from female sports.

It defines “sex” as the “biological, physical condition of being male or female, determined by an individual’s genetics and anatomy at birth”. It explicitly bans all students of the “male sex” from participating in an activity designated for “girls,” and also requires public schools or local education agencies to ‘disallow’ such students from participation in female sports.

Furthermore, the bill entitles female students to bring a private cause of action for injunctive relief, damages, or any other relief available, against any school or local education agency which allows participation of transgender girls in female sports. A similar remedy is available to any school or local education agency against any government entity or any licensing or accrediting organization, in case such school or local education agency suffers harm, due to the participation of a transgender athlete in a female designated sport.

The Bill will now move to the Senate for its consideration.

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Inter-American rights body finds Jamaica violated LGBT rights

The Inter-American Commission on Human Rights (IACHR) found in a landmark decision released Wednesday that the Jamaican government is responsible for violating the human rights of two of its nationals within the LGBT community.

The Human Dignity Trust (HDT), a charity composed of international lawyers championing LGBT rights, brought the case in 2011 on behalf of two individuals. Gareth Henry is a gay man, who, after facing police brutality and repeated attacks by homophobic gangs and mobs, sought asylum in Canada in 2008. Henry was beaten by a policeman while a crowd of 200 people stood by. Simone Edwards is a lesbian woman who was forced to flee Jamaica after being shot multiple times outside her house in 2008. The two perpetrators wanted to kill her and her brothers, one of whom is gay. After the government continually failed to protect them, Edwards was granted asylum in Europe.

The commission found the Jamaican government responsible for the violation of the rights to humane treatment, privacy, freedom of movement and residence, equal protection, and judicial protection, set down in the American Convention of Human Rights. It recommended that the Jamaican government provide full reparation, including economic compensation, to Henry and Edwards. It also called for homophobic laws to be repealed on an immediate basis (sections 76-79 of the Offenses Against the Person Act, 1864). There are no legal safeguards against discrimination in the country, and, for that reason, the commission called for an anti-discrimination legal framework. It recommended that the government gather statistical data on violence and discrimination based on gender identity and expression, sexual orientation, and body diversity; train public officials; and give a comprehensive sexuality education inclusive of sexual and gender diversity. It also called for applying the standard of due diligence.

Henry and Edwards had argued that the laws prohibiting “buggery,” or anal sex, and “gross indecency”—remnants of the colonial era—not just violate their rights, but also legitimize violence against LGBT persons.

“This is a major legal victory for Gareth, Simone and the entire LGBT community in Jamaica and the wider Caribbean, where nine countries continue to criminalise consensual same-sex intimacy,” said Téa Braun, Director of the HDT. “It is a highly significant step forward that must now accelerate the repeal of these stigmatising and discriminatory laws.”

It is the first decision by the commission to find that laws criminalizing LGBT people violate international law. Consequently, it sets a precedent for the Caribbean region.

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