Important case at the European Court of Human Rights emphasises obligation of the state to investigate homophobic motivation in maltreatment of prisoner
In the recent case of X v. Turkey, the European Court of Human Right has found violations of Article 3 (prohibition of torture and inhuman or degrading treatment) of the European Convention on Human Rights and Article 14 (prohibition of discrimination) taken together with Article 3.
The case concerned a gay prisoner who, after complaining about acts of intimidation and bullying by his fellow inmates, was placed in solitary confinement in a small rat infested cell for over 8 months and denied even the possibility of exercise outside his cell. The prison authorities claimed that this treatment was necessary for his protection. However, the severity of his treatment was greater even than that imposed on prisoners serving a life sentence for murder or other very serious crimes. The applicant had been convicted of a non-violent crime.
The applicant complained both to the Izmir Prosecutor, and to an Izmir judge responsible for overseeing detention conditions, arguing that these conditions of detention were imposed because of his sexual orientation. He requested to be treated in the same way as other prisoners, including access to fresh air and contact with other prisoners. The judge ignored his arguments, invoking the discretionary powers of the prison authorities, and a supposed danger that he would be lynched if not kept in solitary confinement.
In a very important reaffirmation of principle, the Court emphasised that the Turkish authorities had an obligation, under Article 14 of the Convention combined with Article 3, to take all possible measures to establish whether or not a discriminatory attitude could have played a role in the total exclusion of the applicant from prison life. It noted that they had not conducted an adequate assessment of the risks faced by the applicant. And it pointed out that no explanation has been given of why the applicant had been completely deprived of access to exercise in the fresh air. It concluded that the sexual orientation of the applicant was the main reason for the difference in treatment compared to other prisoners, and that the Turkish Government had failed to advance any justification showing how this difference in treatment was compatible with the Convention.
The significance of the case
X v. Turkey is important at a number of levels.
First: a significant problem in some countries is that the authorities ignore homophobic or transphobic motivation in the case of hate crimes or other forms of discrimination, or, worse, fail even to investigate such incidents, where they involve LGBTI people. In connection with similar behaviour in relation to other grounds of discrimination, the Court has developed a rule that States must take reasonable measures to establish the role played by alleged prejudices. For example, in the case of Angelova and Iliev v. Bulgaria, the Court commented:
"When investigating violent incidents State authorities have the additional duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events. Failing to do so and treating racially induced violence and brutality on an equal footing with cases that have no racist overtones would be to turn a blind eye the specific nature of acts that are particularly destructive of fundamental rights." (Paragraph 115).
In X v. Turkey, the Court, in stressing the duty of the state to investigate homophobic motivation, referenced a recent case (B.S. v. Spain) involving racially motivated behaviour by the police that amounted to cruel, inhuman and degrading treatment, thus making explicit the connection between its jurisprudence on racial discrimination and sexual orientation in this field.
X. v. Turkey is the first case in which the Court has applied this reasoning to the ground of sexual orientation. This is very important. Not only is it no longer possible for authorities across Europe to ignore the fact that they have an obligation to explore homophobic motivation, but also lawyers and activists working on such cases now have a very persuasive judgment from the Court to support their arguments.
Second, maltreatment of LGBTI prisoners – although poorly documented – is a serious problem in a number of Council of Europe member states. This case puts the spotlight on this problem, and warns those responsible for prisons that they cannot assume that they will get away with being complicit in, or ignoring, such behaviour.
Third, the case is very important for the situation in Turkey. Human rights defenders working for LGBTI people regularly complain of the failure of the authorities to investigate homophobic or transphobic crimes, or homophobic or transphobic motivation, where such crimes are investigated. Moreover, there are serious concerns about maltreatment of LGBTI people in prisons. The case will now be subject to the Council of Europe mechanism for enforcing judgements. This means that Turkey will be required to take general measures to prevent similar violations of the Convention in future. The effectiveness of these measures will be subject to review by the Committee of Ministers. NGOs can make input to the review process and will be able to put forward - and have taken seriously – strong arguments for, inter alia, specific measures to protect LGBTI prisoners, and for effective training of prison officials and judges