Nov 7, 2013 | News
The Court of Justice of the European Union (CJEU) today declined to hold that the criminalisation of consensual same-sex activity necessarily constitutes “persecution” for the purposes of EU asylum law.
This ruling is out of step with international human rights and refugee law, the ICJ and Amnesty International said.
In X, Y and Z v Minister voor Immigratie, Integratie en Asiel the Luxembourg-based CJEU considered three joined cases arising from asylum requests lodged in the Netherlands by nationals of Senegal, Sierra Leone and Uganda.
The three men claimed that they have a well-founded fear of persecution based on their – undisputed – same-sex sexual orientation and the fact that sex between men is criminalised in their home countries.
“The Court skirted around the real issue in this case and missed a key opportunity to state clearly that to criminalise consensual same-sex conduct ultimately amounts to criminalising people for who they are and, therefore, amounts to persecution per se, regardless of how often sentences of imprisonment are enforced,” said Sherif Elsayed-Ali, Amnesty International’s Head of Refugee and Migrants’ Rights.
A key question facing the Court was whether “the criminalisation of homosexual activities and the threat of imprisonment” for the same constitute “persecution” under EU asylum law.
The Court did affirm that the prosecution and imprisonment of a person for such conduct would constitute persecution.
However, according to the two organizations, the mere existence of laws that criminalise consensual same-sex sexual activities – and which thus effectively criminalise individuals for their sexual orientation and who they are – also runs contrary to international human rights law and jurisprudence, as well as a growing raft of national court decisions.
“The Court should have found that these laws, even when they have not recently been applied in practice are capable of giving rise to a well-founded fear of persecution in lesbian, gay, bisexual transgender and intersex people, and who accordingly should be recognised as refugees when they apply for asylum,” said Livio Zilli, Senior Legal Adviser at the International Commission of Jurists.
Amnesty International has extensively documented how these laws provide state actors with the means to perpetrate human rights violations and contribute to an atmosphere of state-supported homophobia.
They enable harassment and abuse, and deny lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals – or those perceived to be LGBTI – effective state protection to which they are entitled under international human rights law.
Contact:
Livio Zilli, Senior Legal Adviser, ICJ, t + 41 22 979 38 23 ; e-mail: livio.zilli(a)icj.org
Notes:
In its request to the CJEU, the Dutch Council of State asked the Luxembourg-based CJEU to answer the following questions:
1) “Do foreign nationals with a homosexual orientation form a particular social group as referred to in Article 10(1)(d)” of the Qualification Directive?
2) “Which homosexual activities fall within the scope of the Directive”; “how should national authorities assess what constitutes persecution in this context” and “whether applicants for refugee status should be expected to conceal, or exercise restraint in expressing, their sexual orientation in their country of origin” in order to avoid persecution?
3) Do the criminalisation of same-sex sexual activity and the possibility of imprisonment upon conviction constitute persecution within the meaning of the Qualification Directive?
Read also:
Criminalization of same-sex acts and the threat of imprisonment give rise to a well-founded fear of persecution
Nov 7, 2013 | News
FIDH, ILGA-Europe, ICJ, AIRE-Centre and HLHR welcome this important decision. The organizations had submitted written comments about the case to the Court in June 2011.
In a judgment in the joint cases of Vallianatos and Mylonas v. Greece and C.S. and others v. Greece delivered today, the Grand Chamber of the European Court of Human Rights ruled that Greece had violated the European Convention on Human Rights by excluding same-sex couples from a “civil union”, restricted in Greece to heterosexual couples.
“All Member States of the Council of Europe must condemn any form of discrimination against homosexuals. Homosexual couples, as heterosexual couples, involved in a stable relationship, should benefit from a legal recognition”, said Karim Lahidji, FIDH President. He added: “Twenty-two of the Member States of the Council of Europe have created a legal form of recognition for same-sex couples. Greece must change its law to comply with the European Convention on Human Rights”.
Evelyne Paradis, Executive Director of ILGA-Europe, said: “The European Court of Human Rights reaffirmed already established principle that sexual orientation discrimination is in breach of the European Convention. Now the Court took yet another step to say that if a country provides legal recognition to unmarried heterosexual couples in a form of civil unions, same-sex couples also must be able to benefit from such legal recognition. European consensus on the legal recognition of same-sex partnership is constantly growing and we welcome the fact the Court is taking it into account and reflect in its jurisprudence.”
Livio Zilli, Senior Legal Adviser at the International Commission of Jurists, said: “The Court reiterated that the Convention was a living instrument to be interpreted in the present-day conditions and that the state was obliged under the Convention to take account of societal developments, as well as the fact that there is no single way or choice when it came to people’s exercise and enjoyment of their right to family or private life.”
In its decision, the Court ruled that Greece had failed to provide a convincing justification for excluding same-sex couples.
The Government’s argument, according to which the law’s main purpose was to protect children of unmarried parents, did not constitute a valid reason, because the law’s real objective was the legal recognition of a new form of family life.
Therefore, exclusion of same-sex couples breaches the Convention.
In November 2008, Greece adopted a law creating the “civil unions”, an alternative to marriage.
However, the first article restricts such unions to “two physical individuals of different sex who have reached the age of majority”. An animated debate relating to the inclusion of same-sex couples took place before the adoption of this law.
During the debate before the Hellenic Parliament, the Minister of Justice at the time, declared: “We mustn’t include same sex couples. We are indeed convinced that the needs and demands of the Hellenic society do not cross this line; as a legislator, the political party in power is accountable to the Greek people; we have our own beliefs and negotiations are over; I believe it is the way to go”.
In their written comments, FIDH, ILGA-Europe, ICJ and AIRE-Centre recalled that the European Court has repeatedly condemned direct discrimination based on sexual orientation as a violation of protected rights.
The Court’s case-law reiterates that when it comes to a difference in treatment based on sex or sexual orientation, the principle of proportionality does not merely require that the measure chosen is in principle suited for realising the aim sought.
It must also be shown that the discriminatory treatment is necessary in order to achieve that aim, otherwise the measure will be in violation of the Convention. Creating a “civil union” only for unmarried different-sex couples amounts to direct discrimination and therefore violates the Convention.
Today’s decision follows recent jurisprudence of the Court against discrimination of same-sex couples. On February 2013, in the X. and others v. Austria case, the European Court condemned Austria for banning a homosexual person to adopt the biological child of his/her partner. It decided that the ban of unmarried same-sex couples, which are in the same situation than unmarried different-sex couples, was not justified and violated article 14 of the Convention in conjunction with article 8.
Contact:
Livio Zilli, Senior Legal Adviser, ICJ, e-mail: livio.zilli(a)icj.org
Additional information:
- Judgement of the European Court of Human Rights in the case of Vallianatos and Mylonas v. Greece and C.S. and others v. Greece
- According to the Rainbow Europe’s Index (May 2013), Greece came 25th among 49 European countries in terms of laws and policies affecting the human rights of LGBTI people.
Greece-Vallianatos_CEDH-news-press release-2013-FR (full French text in pdf)
Nov 5, 2013 | News
The ICJ welcomes the release on 1 November of lawyer Zinaida Mukhotorova, from a psychiatric facility in Astana, Kazakhstan.
The lawyer was forcibly detained in the psychiatric facility, the “Medical Centre of the Problems of Psychiatric Health”, for almost three months.
Despite her release, the results of the psychiatric examination were said to be pending.
“While this release is welcome, the ICJ remains concerned that Zinaida Mukhotorova’s detention represented a reprisal for her legitimate exercise of her professional duties as a lawyer, in violation of her right to liberty as well as the UN Basic Principles on the Role of Lawyers,” said Róisín Pillay, Director of the ICJ Europe Regional Programme. “It must now be ensured that Zinaida Mukhotorova can challenge the legality of her detention through fair procedures, and receive appropriate measures of reparation for any violation of her human rights” she added.
Zinaida Mukhtorova was placed in the psychiatric facility on 9 August after she was forcibly taken from her house by several police officers and medical personnel.
Among the reasons given for her detention were her “possibly querulous” and “litigious” activity.
The ICJ previously raised concern that her psychiatric detention was being justified on grounds consisting in the exercise of her legitimate professional functions as a lawyer.
The ICJ continues to monitor the case, including ongoing legal challenges in the Kazakhstan courts to the lawfulness of Zinaida Mukhtorova’s detention in psychiatric facilities on this and another previous occasion.
In this regard, the ICJ calls on the government to ensure fairness of the proceedings challenging her detention.
Contact:
Róisín Pillay, Director, ICJ Europe Programme, roisin.pillay(a)icj.org
Temur Shakirov, Legal Adviser, ICJ Europe Programme, temur.shakirov(a)icj.org
Kazakhstan-Mukhtorova statement-news-webstory-2013-Rus (full text in pdf)
Oct 21, 2013 | News
The ICJ welcomes today’s ruling by the Grand Chamber of the European Court of Human Rights in the case of Inés Del Rio Prada, affirming that changes made retroactively to the remission of her sentence violated her rights.
The ICJ, which intervened as third-party in the case, says the judgment reinforces and makes effective the principle of non-retroactivity of criminal law, an essential element of the rule of law.
“This is a highly significant judgment that affirms and strengthens the rule of law in criminal sentencing,” said Róisín Pillay, Director of the ICJ Europe Programme. “Rules and practices that have a significant impact on the calculation and remission of sentences must not be applied retroactively to the detriment of a convicted person.”
“The key principle that the Grand Chamber has upheld today is that the rules that apply to the calculation of the sentence to be served, must be clear and foreseeable under the law at the time of conviction. Subsequent re-interpretation by the courts cannot fundamentally revise the principles that apply to a sentence already handed down. While States have the responsibility for setting sentencing rules for crimes, any changes to those rules which would result in an increased penalty must not applied retroactively in breach of (Article 7 of) the European Convention on Human Rights,” she added.
BACKGROUND:
Inés Del Rio Prada had been convicted of terrorism offences and sentenced to a total of over 3,000 years of imprisonment.
According to Spanish sentencing rules in force at the time, this theoretical sentence was tantamount to an effective sentence of 30 years imprisonment.
While at that time, the benefit of sentence reduction for work performed in prison was applied to the 30-year period, in 2008 the Spanish courts decided to deduct such benefits from the 3,000 years of nominal imprisonment instead, thereby significantly reducing their impact, and leading to a considerably longer sentence in the case of the applicant.
In its judgment, the Grand Chamber held that the application of changes to Spanish sentencing rules as applied to applicant Inés Del Rio Prada had violated the prohibition on retroactive penalties guaranteed in Article 7 of the European Convention on Human Rights.
It held that a 2006 decision of the Spanish Supreme Court, which altered the system of calculation of maximum terms of sentences, leading to reduced remission of sentences for work done in prison, constituted a retroactive redefinition of the sentence previously imposed, which could not have been foreseen.
As such, the Court held that Spain had violated its obligations under article 7 of the European Convention on Human Rights (ECHR).
The Court also found that the applicant’s continued detention violated the right to liberty under Article 5(1) ECHR, and required her release at the earliest possible date.
Contact:
Róisín Pillay, Director, ICJ Europe Programme, t +32 2 734 8446; e-mail : roísín.pillay(a)icj.org
Read also:
Third Party Intervention in Del Rio Prada v. Spain
Oct 17, 2013 | Events
The ICJ participated in a meeting of experts within the Council of Europe’s Steering Committee on Human Rights (CDDH) in Strasbourg on 14-16 October 2013.
The Drafting Group on Human Rights and Business of the Steering Committee on Human Rights (CDDH-CORP) has drafted a Declaration of support to the Guiding Principles on Human Rights and Business for consideration by the Committee of Ministers. The ICJ expresses satisfaction at the progress made during the meeting and hopes that the draft declaration will be finally approved by Ministers and that this expert group will be able to move on to drafting a non-binding instrument on access to justice in the context of business activities.
Steering Committee meeting page (for agenda and report, including the draft Declaration)
Photo credit: © notfrancois (the author has no involvement in nor does support this submission)
Sep 26, 2013 | News
The ICJ today expressed grave concern over the shooting of a Supreme Court judge of Dagestan and his son.
The ICJ calls on the federal and local authorities to ensure prompt, independent, impartial and thorough investigation of the shooting of Judge Mukhtar Shapiyev (photo) and his son.
Those reasonably suspected of responsibility for this crime should be identified and brought to justice in fair and transparent proceedings, where the rights of all the parties, including the victims and the accused are respected.
The ICJ recalls that Mukhtar Shapiyev is the third judge to be killed in Dagestan this year.
On 15 January, Magomed Magomedov, a Supreme Court judge of Dagestan, was shot and died as a result of the attack and, on 9 March, federal judge Akhmed Radzhabov, was shot to death near his house.
“When judges’ security is not guaranteed, and when they face a real and constant risk to their lives, the justice system and the very rule of law are undermined,” Temur Shakirov, Legal Adviser of the ICJ Europe Programme, said. “The UN Basic Principles on the Independence of the Judiciary clarify that it is the obligation of the State to ensure that those who are entrusted with the power to take judicial decisions are effectively protected.”
Reports indicate that Mukhtar Shapiyev and his son, Kamil Shapiyev, were shot at by at least two persons near their home in the capital Makhachkala at about 20:45 on Wednesday 25 September. Both victims later died in hospital.
Judge Shapiyev previously worked as the Prosecutor of one of the districts in Dagestan. In January 2012, he was appointed as a Supreme Court judge of Dagestan and worked in the collegium on civil cases.
Urgent measures, which the ICJ calls for to guarantee that the security of judges in Dagestan is effectively protected, include ensuring effective security against attempts on their lives and lives of their family members.
CONTACTS
Róisín Pillay, Director, ICJ Europe Programme, roisin.pillay(a)icj.org
Temur Shakirov, Legal Adviser, ICJ Europe Programme, temur.shakirov(a)icj.org
Russia-Judge killed in Dagestan-news-web story-2013-rus (full text in pdf)
