This is a blog is related to my academic work in the International Academic Forum on SOGIESC Law but meant to serve anyone who wants to contribute to improve the protection of human rights worldwide. It is intended to keep interested readers informed about legal developments relating to sexual orientation, gender expression and identity and sex characteristics (SOGIESC). Hopefully, it will make it easier to find correct legal information about the developments in all regions of the world and, in particular, with regard to international law.
Covid-19 has exacerbated inequalities worldwide, and had a disproportionate impact on LGBTI persons. This week, the latest report by the UN Independent Expert on SOGI to the UN General Assembly has emerged as a strong call on States to ensure that their responses to the pandemic do not discriminate against our communities.
Meanwhile, worrying news has emerged from many corners of the world: in Argentina, a court has failed to recognise the murder of a trans activist as a hate crime, backtracking from a previous historic ruling.
In the United States, two Justices at the Supreme Court openly renewed their attacks on marriage equality.
In Japan, a politician has claimed that discussing diversity in schools would lead to having no children in the future.
In Bulgaria, a teenage mob organised an attack against a group of peers and posted the footage on social media, in a chilling attempt to target them on the grounds of their sexual orientation.
And yet, despite this concerning news, we continue to see important victories, and to work together in unity to take steps towards equality. During a trial in Kenya, the prosecutor was ordered to stop deadnaming a trans woman in court and to respect her identity.
In Aotearoa New Zealand, ahead of the country’s general elections, LGBTI organisations have teamed up to present their demands to the incoming government, and are obtaining encouraging pledges.
ILGA – LGBTI news of the world – 25 September – 1 October 2020
Written by Maddalena Tomassini Edited by Daniele Paletta
This has been a crucial week for many trans and gender diverse people in our communities. In India, new regulations reportedly state that trans individuals won’t be required to undergo a medical examination to see their gender legally recognised.
In Italy, the national pharmaceutical agency decided that Hormone Replacement Treatment will now be provided for free.
In the United States, California approved four bills marking some important steps towards equality – included for trans, non-binary and intersex persons in prison settings. Still, criminalisation and abusive preconditions to be legally recognised continue to be all too common in many countries across the world, as the newly-released Trans Legal Mapping Report by ILGA World has shown. Our siblings are fighting to be recognised as equal citizens everywhere, seeking to build a world that is finally safe for us to live in.
A report from Egypt shows that many LGBT people still face unacceptable levels of violence on the grounds of who they are and whom they love.
In the Cook Islands, a campaign has continued to call on the government to scrap provisions that still criminalise same-sex activities between consenting adults: a report on the issue, however, has been postponed for a few more months.
Lesbian, bisexual and trans women are making their voices heard at the Inter-American Commission on Human Rights, where activists highlighted the extent of the violence and discrimination they face in many countries in Latin America and the Caribbean.
Meanwhile at the United Nations, 34 States from all regions of the world called on the Human Rights Council to urgently protect intersex persons in their bodily autonomy and right to health, marking an historic step forward for the global intersex community.
USA: Arizona appeals court orders option for same-sex parents on birth certificates
The Arizona Court of Appeals has ruled that Arizona must add an option for listing same-sex parents on birth certificates.
This case began with the divorce of the petitioner Kimberly McLaughlin and her ex-wife Suzan Swanson. While they were married McLaughlin gave birth to a child. During divorce proceedings, they argued over whether Swanson was the child’s parent. The Arizona Supreme Court eventually ruled she was in accordance with “the presumption of legal parentage established at A.R.S. § 25-814(A)(1)” which applies to same-sex parents.
All other issues were solved except how the parties would be designated on the birth certificate. According to the Arizona Department of Health Services, the parties must be designated as either “Mother/Father” or “Parent/Parent.” McLaughlin wished to be listed as “Biological Mother” and have her ex-wife listed as “Legal Mother,” while Swanson accepted “Parent/Parent.” The trial court denied McLaughlin’s request so she filed this suit claiming “that the court’s order had ‘stripped’ her of the ‘Mother’ designation on her biological child’s birth certificate solely because she was formerly married to a woman, in violation of her Fourteenth Amendment right to equal protection.”
The appeals court Monday found that the trial court had the authority to amend the birth certificate to list both women as the child’s mother. The court remanded back to the trial court for a ruling consistent with this opinion.
Human Rights Watch (HRW) on Wednesday criticized the treatment of lesbian, gay, bisexual and transgender (LGBT) individuals in El Salvador, Guatemala and Honduras, as well as the US for the obstacles it places before asylum seekers
The report, Every Day I Live in Fear: Violence and Discrimination Against LGBT People in El Salvador, Guatemala, and Honduras, and Obstacles to Asylum in the United States, found that hate crimes against LGBT people are all too common in these Latin American countries known as the Northern Triangle. The study included interviews with 116 LGBT individuals from the Northern Triangle, in addition to 93 government officials, journalists and non-government officials. It found that they face high levels of violence and persecution on the basis of their sexual orientation and gender identity. This has led to a mass exodus in the form of caravans of asylum seekers coming to the US-Mexico border.
The study highlights that the Northern Triangle is one of the most dangerous places in the world because of gang violence that permeates the lower classes. HRW asked the countries to provide statistics about both hate crimes and poverty levels of LGBT individuals, but none of the countries could provide accurate numbers. However, based on interviews, HRW believes many LGBT individuals, especially transwomen, are living in poverty because of familial rejection and discrimination that led them to weak academic and financial success.
The report is highly critical of the US and its decision to close its border to asylum seekers in March. It says that COVID-19 was a pretext for the full closure the Trump administration had been wanting to do for years.
The report lists specific recommendations for each country. It recommends that the US “[m]ake clear that [it] will comply with US and international refugee law by recognizing that persecution on the grounds of sexual orientation and gender identity is a legitimate basis for the grant of asylum” and that it reopen the border to allow asylum seekers the protections they need.
It recommends the Northern Triangle countries terminate their Asylum Cooperative Agreement signed with the US. Finally, it recommends all three countries take steps to hold accountable public officials who participate or are complicit in violence against LGBT individuals. In addition, the Northern Triangle countries should establish services to help LGBT people get an education and ensure their protection if they are thrown out by their families.
European Union: MEPs inquire the European Commission regarding so-called “conversion therapy” practices and the need for an EU-wide ban
Commission Vice-President, Values and Transparency, Věra Jourová
Commissioner for Equality, Helena Dalli
Commissioner for Health and Food Safety, Stella Kyriakides
Brussels, 9 October 2020
Subject: So-called “conversion therapy” practices and their impact on LGBT persons: the need for an EU-wide ban
Dear European Commission Vice-President in charge of Values and Transparency,Vera Jourová,
Dear Commissioner for Equality, Helena Dalli,
Dear Commissioner for Health and Food Safety, Stella Kyriakides
“Conversion therapy” practices are torture.
There is no way to classify these practices other than cruel, inhuman or degrading treatment that seek to “correct” something that warrants no “fixing” – a person’s sexual orientation, gender identity and/or expression. They constitute a highly discriminatory practice that violates the human rights of LGBT persons and which causes severe physical and psychological suffering to its victims. Data from the International Rehabilitation Council for Torture Victims concludes that it is practiced in over 69 countries worldwide, including EU member states (reportedly: use of medication in France, psychotherapy in Austria, Italy and Poland, exorcisms/ritual cleansing in France and Spain).[1] Notably, LGBT youth is at severe risk of torture due to these practices, given the role that family and caretakers often play in coercing victims to undergo them.
Due to their extensive practice, the UN Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity (SOGI), in full exercise of his mandate, published a report in May 2020 analysing the practices of so-called “conversion therapies”. For example, he highlighted that children and youth are often more vulnerable due to the lack of legal authority to make medical or mental health decisions. Even in circumstances where they can take these decisions, they are prone to influence or coercion due to family pressure.[2] In particular, the Independent Expert noted that:
due to their specific targeting of people on the basis of their SOGI,the practices are discriminatory, in contravention of the principles of universality, equality and non-discrimination of the Universal Declaration of Human Rights[3].
Every person should, without distinction, be able to enjoy the highest attainable standard of physical and mental health and freedom from non-consensual medical treatment.[4]
So-called “conversion therapy” practices can amount to torture, cruel, inhuman or degrading treatment, as recognised by UN anti-torture bodies;
The Committee on the Rights of the Child has urged Member States to eliminate such practices.[5]
In conclusion, the Independent Expert called for a world-wide ban on practices of conversion therapy.
This call is all the more pressing when, as recognised in the recent European Parliament resolution on Article 7 concerning Poland,[6]the Polish Episcopate recently endorsed the idea of “conversion camps” in Poland for LGBT persons. This endorsement is yet another in a row of anti-LGBT rhetoric that has plagued Poland since 2019. It is in addition in clear contravention of EU values,[7] the European Charter of Fundamental Rights[8] and the principle of non-discrimination.[9] No such “conversion” practices exist for heterosexual or cisgender persons.
The Parliament adopted last year a report on the situation of fundamental rights in the EU in 2017 where, among others, it condemned the promotion and practice of “conversion therapies” and called on Member States to criminalise them.[10] The Parliament reiterated its call in the before-mentioned Article 7 resolution.[11]
Currently, only Germany, Malta and some parts of Spain have banned these practices and other Member States like France envisage to do so. However, as several Member States are not considering adopting such legislation in the near future, and in the absence of a Horizontal Anti-Discrimination Directive which would have made discrimination on sexual orientation grounds in health matters illegal, the EC has a responsibility to act. Given the shared competence of the EU in public health under article 168 TFEU and in the area of freedom, security and justice under article 83 TFEU, the European Commission could legislate on this matter.
Following up on the previous arguments:
Does the Commission condone the practices of so-called “conversion therapies”?
Taking into consideration the EU’s shared competence on public health and the area of freedom, security and justice, the Commission has a responsibility to act on this matter. Will the Commission initiate a legislative proposal setting in place an EU-wide ban on any form of “conversion therapy”, as recommended by the UN Independent Expert on SOGI?[12]
Should the Commission not foresee to initiate legislation, what concrete actions has it undertaken until now and which actions is it currently undertaking or foreseeing to in order to support Member States in banning this practice? Is it actively promoting national bans already adopted to other Member States as good practices?
Yours sincerely,
Heidi HAUTALA, EP Vice-President
Fabio Massimo CASTALDO, EP Vice-President & Vice-President, LGBTI Intergroup
Frederick FEDERLEY, Vice-President, Renew Europe
Frédérique RIES, Vice-President, Renew Europe
Alice KUHNKE, Vice-President, Greens/European Free Alliance
Ernest URTASUN, Vice-President, Greens/European Free Alliance
[11]European Parliament resolution of 17 September 2020 on the proposal for a Council decision on the determination of a clear risk of a serious breach by the Republic of Poland of the rule of law (COM(2017)0835 – 2017/0360R(NLE)), ¶63.
[12] UN Human Rights Council – UN Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity (May 2020), ‘Practices of so-called “conversion therapy”’, ¶ 87.
The Fifth Section of the European Court of Human Rights has issued its judgment in the case of Aghdgomelashvili and Japaridze v Georgia. The case concerns 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 case was lodged over nine years ago, in January 2011, and communicated in 2014 (which I detailed here at the time).
Today’s judgment is issued on International Lesbian Day 2020.
The facts
The applicants, Ms Aghdgomelashvili and Ms Japaridze, were born in 1969 and 1979 respectively and live in Tbilisi.
Ms Aghdgomelashvili is a co-founder of the Inclusive Foundation (IF), a LGBT non-governmental organisation in Georgia. At the time of the events complained about, Ms Aghdgomelashvili was working at the IF as a part-time programme manager, and was acting head of the organisation, whilst Ms Japaridze was working there as a programme officer in charge of office administration.
On 15 December 2009, someone rang the doorbell at the IF. As soon as the door was opened, up to 17 men and women, all dressed in civilian clothing, rushed into the office. Presenting themselves as police officers, they announced that they were there to conduct a search of the IF office.
The police officers started asking about the IF’s activities and, having realised that they had entered the premises of an LGBT organisation, suddenly became aggressive and started displaying homophobic behaviour. The police officers started referring to the women present at the IF as “not Georgians”, “sick people” and “perverts who should receive medical treatment”. Inaccurately assuming that a transgender person present was male, male police officers tried to make friends with her and enquired sarcastically whether the women at IF were interested in men at all. Some of the police officers threatened to reveal the sexual orientation of the women gathered in the office to the public, and to their parents and relatives. They also threatened to hurt their family members. The officers said that they wished those in the office were men, because in that case they would use physical force on them. One of the police officers ripped a poster, which depicted two men embracing, off the wall and tore it to pieces, adding that he would burn the place down if he had matches.
The police officers then announced that some of the women had to be strip-searched, including Ms Aghdgomelashvili and Ms Japaridze. The strip-searches were conducted in the office toilet by the female police officers. Most of the women were searched in groups of two to three, and some of them were asked to take off their underwear. They stood barefoot on the cold floor, while the police officers who were carrying out the searches made denigrating remarks such as “dykes”. All the women concerned felt that the strip-searches were carried out to humiliate them, as the police officers carrying out the searches paid little attention to the clothes that they asked the women to remove.
Investigation of the police activity
On 9 January 2010, Ms Aghdgomelashvili and Ms Japaridze filed a complaint with the Chief Public Prosecutor’s Office (“the CPPO”), the Tbilisi city public prosecutor’s office (“the Tbilisi Prosecutor”) and the head of the General Inspectorate of the Ministry of Internal Affairs (“the General Inspectorate of the MIA”), listing the abuses of power committed by the police officers during the search of the IF office and requesting that the authorities look into the matter and respond accordingly.
On 8 February 2010, Ms Aghdgomelashvili and Ms Japaridze enquired with the General Inspectorate of the MIA and the CPPO about their complaint. They explicitly requested that the investigating authorities take into consideration the influence that the women’s perceived sexual orientation and gender identity had had on the police behaviour.
On 14 April 2011, Ms Aghdgomelashvili and Ms Japaridze received a letter from the Tbilisi Prosecutor informing them that an investigation into the case was ongoing under Article 333 of the Criminal Code of Georgia (abuse of official powers). On 28 June 2011, Ms Aghdgomelashvili and Ms Japaridze received a further letter from the Tbilisi Prosecutor, reiterating that a pre-trial investigation into the case was ongoing under Article 333 of the Criminal Code of Georgia. The letter stated “a range of early investigative measures have already been implemented in relation to this criminal case. Other pertinent investigative measures are planned and will be implemented, for the purpose of a thorough investigation”. No other information was provided. The investigation into the possible abuse of power by the police officers has still not been concluded.
Complaint to the Court
Ms Aghdgomelashvili and Ms Japaridze complained under Article 3 (prohibition of torture) alone and in conjunction with Article 14 (prohibition of discrimination) of the Convention. Ms Aghdgomelashvili and Ms Japaridze also complained under Article 8 of the Convention and Article 1 of Protocol No. 12 to the Convention, which the Court decided required no separate examination. Ms Aghdgomelashvili and Ms Japaridze’s principle complaints were that police officers had subjected them to ill-treatment during the search of the IF office on 15 December 2009; that no effective investigation into the police abuse had been conducted; and that those violations of the State’s negative and positive obligations had been conditioned by the relevant domestic authorities’ discriminatory attitudes towards Ms Aghdgomelashvili and Ms Japaridze’s actual and/or perceived sexual orientation and/or their LGBT-related activities.
The Court’s judgment
Alleged inadequacy of the investigation
The Court observed that Ms Aghdgomelashvili and Ms Japaridze lodged a criminal complaint concerning the police abuse but the Government had not shown that a single investigative act was ever undertaken, and no conclusive findings had been produced. This prohibitive delay was itself incompatible with the State’s obligation under Article 3 of the Convention to carry out an effective investigation, especially since the task of identifying the perpetrators of Ms Aghdgomelashvili and Ms Japaridze’s ill‑treatment was far from arduous.
The Court stated that the protraction of the investigation exposed the domestic authorities’ long-standing inability – “which can also be read as unwillingness” (§ 40) – to examine the role played by homophobic and/or transphobic motives in the alleged police abuse.
The Court noted there had been a pressing need to conduct a meaningful inquiry into the possibility that discrimination had been the motivating factor behind the police officers’ conduct, given the well-documented hostility against the LGBT community in the country at the material time.
The Court held, therefore, that the domestic investigation into Ms Aghdgomelashvili and Ms Japaridze’s allegations of ill-treatment with discriminatory intent by the police had been ineffective, since the Government had not demonstrated that a single investigative measure had ever been undertaken in practice.
As such, therefore, there had been a violation of Article 3 (under its procedural limb) taken in conjunction with Article 14 of the Convention.
Alleged ill-treatment
The Court asked two questions: (1) did the impugned acts of the police officers reach the requisite threshold of severity to fall within the ambit of treatment proscribed by Article 3 taken in conjunction with Article 14 of the Convention; and (2) was homophobic and/or transphobic hatred a causal factor in the impugned conduct of the police officers?
The Court stated that it had “no hesitation in answering both questions in the affirmative”, in the light of the police officers’ conduct during the search of the IF’s office on 15 December 2009 (§ 47).
The Court concluded that the “wholly inappropriate conduct of the police officers” during the search of the IF office on 15 December 2009 was motivated by homophobic and/or transphobic hatred and must necessarily have aroused in the applicants feelings of fear, anguish and insecurity which were not compatible with respect for their human dignity (§ 49). Such conduct by the police reached the threshold of severity within the meaning of Article 3 taken in conjunction with Article 14 of the Convention.
As such, therefore, there had been a violation of Article 3 (under its substantive limb) read together with Article 14 of the Convention.
Short commentary
The Court’s judgment makes 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.
In 2015, also in a case against Georgia, the Court held, for the first time, that ill-treatment perpetrated by private individuals against gay men and lesbians taking part in public assemblies – in the form of “violence, which consisted mostly of hate speech and serious threats, but also some sporadic physical abuse” – created “fear, anxiety and insecurity” severe enough to reach the relevant threshold under Article 3 taken in conjunction with Article 14 of the Convention (Identoba and Others v Georgia, § 79). On this basis, the Court found that the failure of national authorities to conduct effective investigations into these episodes, with a view to unmasking “the bias motive” and identifying “those responsible for committing the homophobic violence”, meant that they fell short of their procedural obligation under Article 3 taken in conjunction with Article 14 (Identoba and Others v Georgia, § 80).
The significance of the Court’s previous jurisprudence was that it established that the Convention obliges national authorities to explicitly investigate bias-motived crimes committed on grounds of sexual orientation, because not to do so would mean that “prejudice-motivated crimes would unavoidably be treated on an equal footing with ordinary cases without such overtones, and the resultant indifference would be tantamount to official acquiescence to or even connivance with hate crimes” (Identoba and Others v Georgia, § 77).
The judgment in Aghdgomelashvili and Japaridze adds to this, because it focuses on ill-treatment of LGBT people by police officers rather than private individuals. As such, it reminds national authorities that if state agents (such as police officers) engage in acts of “hatred” against LGBT people then this will amount to a substantive violation of Article 3 in conjunction with Article 14 of the Convention. Moreover, if national authorities fail to adequately investigate their own state agents, in order to uncover their homophobic or transphobic bias, then this will also amount to a procedural violation of Article 3 in conjunction with Article 14 of the Convention.
The Court’s willingness to extend to LGBT people the protection of Article 3 taken in conjunction with Article 14, which began as recently as 2012 (X v Turkey), is of vital importance and significance. Aghdgomelashvili and Japaridze is a further stage on the Court’s journey to securing the human dignity of LGBT people in a way that is consistent with the aims of the Convention.
In 2012, the European Court of Human Rights held, for the first time, that the discriminatory treatment of an individual on the grounds of his sexual orientation amounted to a violation of art.3, alone and in conjunction with art.14, of the European Convention on Human Rights. This judgment is highly significant given that individuals in Europe have been arguing since 1959 that forms of ill-treatment based on sexual orientation amount to a violation of art.3 of the Convention. In this article we provide a critical analysis of the evolution of the Court’s art.3 jurisprudence in order to assess the ways in which this has developed the protection of sexual minorities in Europe. We identify major gaps in this protection, most notably in respect of asylum, and argue that the Court’s art.3 jurisprudence should be further evolved to address these. Using the example of same-sex marriage, we conclude with a consideration of how sexual minorities might better and more creatively use art.3 in the future to address discrimination against them.
For six decades the European Convention on Human Rights has been a beacon of hope for people in Europe suffering discrimination on the grounds of sexual orientation. Since the early 1990s, following the expansion of the Council of Europe to include 22 former communist states, the Convention has become an important means by which to promote sexual orientation equality in Central and Eastern Europe. In this article we provide a systematic examination of how the Convention is being used, in the European Court of Human Rights, to challenge sexual orientation discrimination in Central and Eastern European states. We discuss those issues that have been raised before the Court relating to sexual orientation discrimination in these states and, in turn, assess how the Court has developed Convention jurisprudence to address them. We situate this analysis in the broader context of the contribution of Central and Eastern European states to shaping the approach of the Council of Europe’s statutory organs to sexual orientation equality, which influences the work of the Court. Our overall conclusion is that, notwithstanding certain limitations and problems, there is significant scope for sexual minorities in Central and Eastern European states to use the Convention more systematically to challenge aspects of sexual orientation discrimination.
(c) Paul Johnson – Posted: 08 Oct 2020 04:08 AM PDT
The Fifth Section of the European Court of Human Rights has issued its judgment in the case of Aghdgomelashvili and Japaridze v Georgia. The case concerns 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 case was lodged over nine years ago, in January 2011, and communicated in 2014 (which I detailed here at the time).
Today’s judgment is issued on International Lesbian Day 2020.
The facts
The applicants, Ms Aghdgomelashvili and Ms Japaridze, were born in 1969 and 1979 respectively and live in Tbilisi.
Ms Aghdgomelashvili is a co-founder of the Inclusive Foundation (IF), a LGBT non-governmental organisation in Georgia. At the time of the events complained about, Ms Aghdgomelashvili was working at the IF as a part-time programme manager, and was acting head of the organisation, whilst Ms Japaridze was working there as a programme officer in charge of office administration.
On 15 December 2009, someone rang the doorbell at the IF. As soon as the door was opened, up to 17 men and women, all dressed in civilian clothing, rushed into the office. Presenting themselves as police officers, they announced that they were there to conduct a search of the IF office.
The police officers started asking about the IF’s activities and, having realised that they had entered the premises of an LGBT organisation, suddenly became aggressive and started displaying homophobic behaviour. The police officers started referring to the women present at the IF as “not Georgians”, “sick people” and “perverts who should receive medical treatment”. Inaccurately assuming that a transgender person present was male, male police officers tried to make friends with her and enquired sarcastically whether the women at IF were interested in men at all. Some of the police officers threatened to reveal the sexual orientation of the women gathered in the office to the public, and to their parents and relatives. They also threatened to hurt their family members. The officers said that they wished those in the office were men, because in that case they would use physical force on them. One of the police officers ripped a poster, which depicted two men embracing, off the wall and tore it to pieces, adding that he would burn the place down if he had matches.
The police officers then announced that some of the women had to be strip-searched, including Ms Aghdgomelashvili and Ms Japaridze. The strip-searches were conducted in the office toilet by the female police officers. Most of the women were searched in groups of two to three, and some of them were asked to take off their underwear. They stood barefoot on the cold floor, while the police officers who were carrying out the searches made denigrating remarks such as “dykes”. All the women concerned felt that the strip-searches were carried out to humiliate them, as the police officers carrying out the searches paid little attention to the clothes that they asked the women to remove.
Investigation of the police activity
On 9 January 2010, Ms Aghdgomelashvili and Ms Japaridze filed a complaint with the Chief Public Prosecutor’s Office (“the CPPO”), the Tbilisi city public prosecutor’s office (“the Tbilisi Prosecutor”) and the head of the General Inspectorate of the Ministry of Internal Affairs (“the General Inspectorate of the MIA”), listing the abuses of power committed by the police officers during the search of the IF office and requesting that the authorities look into the matter and respond accordingly.
On 8 February 2010, Ms Aghdgomelashvili and Ms Japaridze enquired with the General Inspectorate of the MIA and the CPPO about their complaint. They explicitly requested that the investigating authorities take into consideration the influence that the women’s perceived sexual orientation and gender identity had had on the police behaviour.
On 14 April 2011, Ms Aghdgomelashvili and Ms Japaridze received a letter from the Tbilisi Prosecutor informing them that an investigation into the case was ongoing under Article 333 of the Criminal Code of Georgia (abuse of official powers). On 28 June 2011, Ms Aghdgomelashvili and Ms Japaridze received a further letter from the Tbilisi Prosecutor, reiterating that a pre-trial investigation into the case was ongoing under Article 333 of the Criminal Code of Georgia. The letter stated “a range of early investigative measures have already been implemented in relation to this criminal case. Other pertinent investigative measures are planned and will be implemented, for the purpose of a thorough investigation”. No other information was provided. The investigation into the possible abuse of power by the police officers has still not been concluded.
Complaint to the Court
Ms Aghdgomelashvili and Ms Japaridze complained under Article 3 (prohibition of torture) alone and in conjunction with Article 14 (prohibition of discrimination) of the Convention. Ms Aghdgomelashvili and Ms Japaridze also complained under Article 8 of the Convention and Article 1 of Protocol No. 12 to the Convention, which the Court decided required no separate examination. Ms Aghdgomelashvili and Ms Japaridze’s principle complaints were that police officers had subjected them to ill-treatment during the search of the IF office on 15 December 2009; that no effective investigation into the police abuse had been conducted; and that those violations of the State’s negative and positive obligations had been conditioned by the relevant domestic authorities’ discriminatory attitudes towards Ms Aghdgomelashvili and Ms Japaridze’s actual and/or perceived sexual orientation and/or their LGBT-related activities.
The Court’s judgment
Alleged inadequacy of the investigation
The Court observed that Ms Aghdgomelashvili and Ms Japaridze lodged a criminal complaint concerning the police abuse but the Government had not shown that a single investigative act was ever undertaken, and no conclusive findings had been produced. This prohibitive delay was itself incompatible with the State’s obligation under Article 3 of the Convention to carry out an effective investigation, especially since the task of identifying the perpetrators of Ms Aghdgomelashvili and Ms Japaridze’s ill‑treatment was far from arduous.
The Court stated that the protraction of the investigation exposed the domestic authorities’ long-standing inability – “which can also be read as unwillingness” (§ 40) – to examine the role played by homophobic and/or transphobic motives in the alleged police abuse.
The Court noted there had been a pressing need to conduct a meaningful inquiry into the possibility that discrimination had been the motivating factor behind the police officers’ conduct, given the well-documented hostility against the LGBT community in the country at the material time.
The Court held, therefore, that the domestic investigation into Ms Aghdgomelashvili and Ms Japaridze’s allegations of ill-treatment with discriminatory intent by the police had been ineffective, since the Government had not demonstrated that a single investigative measure had ever been undertaken in practice.
As such, therefore, there had been a violation of Article 3 (under its procedural limb) taken in conjunction with Article 14 of the Convention.
Alleged ill-treatment
The Court asked two questions: (1) did the impugned acts of the police officers reach the requisite threshold of severity to fall within the ambit of treatment proscribed by Article 3 taken in conjunction with Article 14 of the Convention; and (2) was homophobic and/or transphobic hatred a causal factor in the impugned conduct of the police officers?
The Court stated that it had “no hesitation in answering both questions in the affirmative”, in the light of the police officers’ conduct during the search of the IF’s office on 15 December 2009 (§ 47).
The Court concluded that the “wholly inappropriate conduct of the police officers” during the search of the IF office on 15 December 2009 was motivated by homophobic and/or transphobic hatred and must necessarily have aroused in the applicants feelings of fear, anguish and insecurity which were not compatible with respect for their human dignity (§ 49). Such conduct by the police reached the threshold of severity within the meaning of Article 3 taken in conjunction with Article 14 of the Convention.
As such, therefore, there had been a violation of Article 3 (under its substantive limb) read together with Article 14 of the Convention.
Short commentary
The Court’s judgment makes 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.
In 2015, also in a case against Georgia, the Court held, for the first time, that ill-treatment perpetrated by private individuals against gay men and lesbians taking part in public assemblies – in the form of “violence, which consisted mostly of hate speech and serious threats, but also some sporadic physical abuse” – created “fear, anxiety and insecurity” severe enough to reach the relevant threshold under Article 3 taken in conjunction with Article 14 of the Convention (Identoba and Others v Georgia, § 79). On this basis, the Court found that the failure of national authorities to conduct effective investigations into these episodes, with a view to unmasking “the bias motive” and identifying “those responsible for committing the homophobic violence”, meant that they fell short of their procedural obligation under Article 3 taken in conjunction with Article 14 (Identoba and Others v Georgia, § 80).
The significance of the Court’s previous jurisprudence was that it established that the Convention obliges national authorities to explicitly investigate bias-motived crimes committed on grounds of sexual orientation, because not to do so would mean that “prejudice-motivated crimes would unavoidably be treated on an equal footing with ordinary cases without such overtones, and the resultant indifference would be tantamount to official acquiescence to or even connivance with hate crimes” (Identoba and Others v Georgia, § 77).
The judgment in Aghdgomelashvili and Japaridze adds to this, because it focuses on ill-treatment of LGBT people by police officers rather than private individuals. As such, it reminds national authorities that if state agents (such as police officers) engage in acts of “hatred” against LGBT people then this will amount to a substantive violation of Article 3 in conjunction with Article 14 of the Convention. Moreover, if national authorities fail to adequately investigate their own state agents, in order to uncover their homophobic or transphobic bias, then this will also amount to a procedural violation of Article 3 in conjunction with Article 14 of the Convention.
The Court’s willingness to extend to LGBT people the protection of Article 3 taken in conjunction with Article 14, which began as recently as 2012 (X v Turkey), is of vital importance and significance. Aghdgomelashvili and Japaridze is a further stage on the Court’s journey to securing the human dignity of LGBT people in a way that is consistent with the aims of the Convention.
In 2012, the European Court of Human Rights held, for the first time, that the discriminatory treatment of an individual on the grounds of his sexual orientation amounted to a violation of art.3, alone and in conjunction with art.14, of the European Convention on Human Rights. This judgment is highly significant given that individuals in Europe have been arguing since 1959 that forms of ill-treatment based on sexual orientation amount to a violation of art.3 of the Convention. In this article we provide a critical analysis of the evolution of the Court’s art.3 jurisprudence in order to assess the ways in which this has developed the protection of sexual minorities in Europe. We identify major gaps in this protection, most notably in respect of asylum, and argue that the Court’s art.3 jurisprudence should be further evolved to address these. Using the example of same-sex marriage, we conclude with a consideration of how sexual minorities might better and more creatively use art.3 in the future to address discrimination against them.
For six decades the European Convention on Human Rights has been a beacon of hope for people in Europe suffering discrimination on the grounds of sexual orientation. Since the early 1990s, following the expansion of the Council of Europe to include 22 former communist states, the Convention has become an important means by which to promote sexual orientation equality in Central and Eastern Europe. In this article we provide a systematic examination of how the Convention is being used, in the European Court of Human Rights, to challenge sexual orientation discrimination in Central and Eastern European states. We discuss those issues that have been raised before the Court relating to sexual orientation discrimination in these states and, in turn, assess how the Court has developed Convention jurisprudence to address them. We situate this analysis in the broader context of the contribution of Central and Eastern European states to shaping the approach of the Council of Europe’s statutory organs to sexual orientation equality, which influences the work of the Court. Our overall conclusion is that, notwithstanding certain limitations and problems, there is significant scope for sexual minorities in Central and Eastern European states to use the Convention more systematically to challenge aspects of sexual orientation discrimination.
The First Section of the European Court of Human Rights has communicated the case of Elissavet Barmaxizoglou and Others v Greece, which probably comprises the largest group of applicants to have ever jointly taken a case to Strasbourg about sexual orientation discrimination. The case is brought by 324 applicants, who form 162 same-sex couples, and concerns the discrimination they allege to have suffered before Greece created legislation allowing them to gain legal recognition of and protection for their relationships. The factsThe 162 same-sex couples lodged their application with the Court on 21 July 2014, complaining about the law (Law no. 3719/2008) which entered into force in 2008 and made provision in Greece for an official form of partnership, known as ‘civil unions’ (σύμφωνο συμβίωσης), distinct to marriage. This law permitted only different-sex couples to enter into civil unions and, as such, excluded same-sex couples. The 162 same-sex couples argue that, because the law did not allow them the possibility of entering into a civil union, they suffered a violation of their right to respect for private and family life under Article 8 of the Convention taken alone and in conjunction with Article 14. Vallianatos and Others v GreeceThe timing of this application is crucial. It was lodged after the Grand Chamber of the Court held in Vallianatos and Others v Greece in 2013 that the exclusion of same-sex couples from civil unions amounted to a violation of Article 14 of the Convention taken in conjunction with Article 8 (I wrote about that judgment here the day after it was given). However, it was lodged before an amendment to the law in Greece in 2015 that enabled same-sex couples to enter into civil unions. Question to the PartiesThe Court has asked the parties the following question: Has there been a violation of the applicants’ right to respect for private life and the prohibition of discrimination, in respect of Article 8 taken alone and in conjunction with Article 14 of the Convention, for the period between the adoption of the law introducing civil unions only for different-sex couples and the change in the law that allowed same-sex couples to enter into civil unions? Short commentaryA crucial factor in this case is that the applicants lodged their complaints before the change to the law in Greece that enabled same-sex couples to enter into civil unions. At the time they lodged their application, the 162 same-sex couples could reasonably claim to be the victims of a violation of Convention rights in the same manner as the applicants in Vallianatos and Others v Greece. Although, at the present time, the violation suffered by the applicants has been resolved by the change in Greek law, the Court can still consider the violation complained of at the material time (see, for example, B.B. v the United Kingdom). Whilst Article 37 of the Convention allows the Court to strike an application out of its list of cases where the circumstances lead to the conclusion that the matter has been resolved, the Court will continue the examination of the application if respect for human rights as defined in the Convention requires it. If the Court continues to examine this application, which it likely will, it will almost certainly find, following Vallianatos, that the applicants were suffering a violation of the Convention up to the point that domestic law changed. Given that the Court awarded 5,000 Euros to each applicant in Vallianatos in respect of non-pecuniary damage, this could mean a significant bill for the Greek government. If the Court awarded non-pecuniary damage at the same rate as Vallianatos it would amount to 1,620,000 Euros in total. However, the Court may award less or even no non-pecuniary damage. Perhaps the Greek government will acknowledge its limited chance of defending this case and opt for a friendly settlement? If the government does that, it will undoubtedly have to enter into some form of financial settlement. The government may, therefore, opt to let the Court find a violation and hope that it reaches the conclusion that the finding of a violation itself constitutes adequate means of redress (without the payment of non-pecuniary damage).
International and Comparative SOGIESC Law - Professor Andreas R Ziegler 