On 16 January 2017, the ICJ with other civil society organizations submitted a third-party intervention in the case of E.S. v. Spain before the European Court of Human Rights.
The case (application no. 13273/16) arose from the attempted removal of a gay asylum applicant to Senegal. The third-party submissions focus on the relevance of the Refugee Convention — as interpreted by a number of domestic courts — and of the EU asylum acquis and the EU Charter of Fundamental Rights to the determination of the scope and content of non-refoulement obligations under Article 3 of the European Convention on Human Rights (ECHR) of those Contracting Parties that are also EU Member States.
The submissions, in particular, address the following:
- Enforced concealment of one’s same-sex sexual orientation constitutes persecution under refugee law and is incompatible with the ECHR, in particular, Article 3;
- The criminalization of consensual same-sex sexual conduct gives rise to a real risk of Article 3 prohibited treatment, thus triggering non-refoulement obligations under that provision of the Convention; and
- The risk of persecution based on sexual orientation in Senegal.
The comments drew upon the European Court’s case-law; authoritative interpretation of other applicable sources of international law and comparative international law.
The ICJ made the submissions jointly with the Human Dignity Trust, the European Council on Refugees and Exiles, the European Region of the International Lesbian, Gay, Bisexual Trans and Intersex Association (ILGA-Europe) and the AIRE Centre (Advice on Individual Rights in Europe).
SPAIN-ECtHR joint amicus in ES v SPAIN-Advocacy-LegalSubmission-2017-ENG