Intersex (Legal gender recognition)

(Application no. 40296/16), 14 November 2017 

Find Court’s communication here.

Find Court’s decision here. (non-exhaustion of domestic remedies)

• The applicant, an intersex person, was registered as male, but identifying herself as female. She complains of the absence of any procedure in Ukraine for changing gender and name records for intersex persons.
• ILGA-Europe together with OII Europe submitted the following:
  • There is lack of awareness about intersex people in Ukraine and the issues they face in their everyday lives. This results in a lack of non-pathologising information on intersex and lack of administrative procedures to reflect the person’s gender identity which may be wrongfully assigned after birth.  As a result, intersex people are wrongfully precluded from name change and legal recognition procedures that are available to trans people. 
  • According to the ECtHR, imposing a restriction on one’s right to bear or change a name without justified and relevant reasons is incompatible with the purpose of Article 8, which is to protect individuals’ self-determination and personal development. Therefore, restrictions on name change should be analysed very critically and even more so where they are seeking to prevent conformation with an individual’s gender identity.
  • International and European bodies have emphasized the need for quick, transparent and accessible legal gender recognition and name change procedures based on the principle of self-determination.  There is a growing international consensus at the national, European and international level of the need to recognise and protect their rights.

Change of name and gender of Iranian refugee

(Application no. 40888/17), 7 November  2017

Find here the communicated case.

• The present case concerns an Iranian trans man who was granted refugee status in Hungary. The Hungarian authorities summarily rejected his request for legal gender recognition (LGR), invoking the absence of a specific legal procedure applying to his situation.
• In their submission to the European Court of Human Rights ILGA-Europe together with TGEU and Transvanilla Transgender Association argued that:
  • Under European Refugee law, States have an obligation to provide legal status and suitable documentation, to ensure access to social rights and not to discriminate. LGR is seen as an element of legal status and as key to ensuring migrants’ access to public or private services, or to the labour market. Mismatching documents can cause re-traumatisation of trans refugees during asylum procedures and in the aftermath.
  • State Parties have a positive obligation under Article 8 to adopt LGR procedures that are “effective and accessible.” The Court found violations of the Convention in several other cases on account of LGR schemes that were misconceived or incomplete, giving rise to arbitrary or unfair outcomes. The same principle is firmly entrenched in other international law and professional guidelines. Lastly, comparatively more countries chose to provide recognised refugees with LGR.

Online hate speech

(Application no. 41288/15), 24 October 2017

Find here the communicated case.

• The case concerns hateful comments on Facebook relating to a picture depicting a same-sex kiss between the two applicants. The applicants complained that the discontinuation of the criminal investigation by the Lithuanian authorities constitutes a violation of Article 14 ECtHR (non-discrimination), taken in conjunction with Article 8 (right to private life).
• ILGA-Europe together with the AIRE Centre, the ICJ and the HRMI submitted the following:
  • The ECtHR uses two approaches when dealing with cases concerning incitement to hatred. The approach of exclusion from the Convention is provided for by Article 17 (prohibition of abuse of rights), where the comments in question amount to hate speech and negate the fundamental values of the Convention. The approach of restriction stems from the fact that freedom of expression is not absolute and can be limited pursuant to Article 10 (2). In its jurisprudence on extreme forms of expression, this Court has employed a case-by-case approach.
  • Failure to investigate, prosecute and punish hate speech amounts to a breach of the positive obligations under the Convention.
  • In many European countries, the term “hatred” generally includes hatred on the grounds of sex and sexual orientation.  Homophobic or transphobic motivation is often considered an aggra­vating circumstance or a factor triggering stronger penalties for other, common criminal offences.
  • According to various surveys, LGBT people are perceived as one of the most vulnerable social groups in Lithuania.. A failure to acknowledge a biased nature of the anti-LGBT crimes, including hate speech, and/or to investigate reported incidence was recognized as one of the pressing issues during the second cycle of Lithuania’s Universal Periodic Review before the United Nations Human Rights Council.

Name change request by transgender woman

(Application no. 60796/16), 4 August 2017

Find Court’s communication here.

• The applicant, a transgender woman, complained of a violation of her right to respect for her private life on account of the Russian authorities’ refusal to change her name and remove her patronymic name without a change of gender.
• ILGA-Europe together with TGEU, Transgender Legal Defence Project and Human Rights Centre “Memorial”  submitted the following:
  • Both the ECtHR and the Court of Justice of the European Union (“CJEU”) have recognised that a person’s name is a fundamental part of their identity and thus fall within the scope of the protection conferred by Article 8 of Convention.
  • Under Russian law, there are no substantial requirements for a change of name, and the procedure should be quick, accessible and transparent. However, there is no consistent practice, and courts have refused to permit the change of name without a corresponding change of legal gender marker. The trend in other Contracting Parties is to allow anyone to change their name with no, or very minimal, pre-conditions.
  • There is also considerable disparity in Russia between the procedure for legal gender recognition described in law and the steps that transgender people must take to achieve it in practice. Legal gender recognition cannot be accessed in practice without a diagnosis of “transsexualism”, although this isn’t required by the law. Gender reassignment surgery is often an additional requirement. This practice is entirely arbitrary and at odds with ECtHR case AP, Garçon and Nicot v France, where the Court found that medical interventions which lead with a high probability to sterility and are mandatory requirements in legal gender recognition are not compatible with Article 8.
  • Transgender people in Russia who are unable to obtain documents reflecting their gender identity face considerable inconvenience in their daily lives, including discrimination in employment and various services due to the mismatch between their gender identity and their legal name and legal gender marker.
  • If the name change procedure entails more requirements or is limited compared to the procedure applicable to a person whose gender identity is in accordance with their gender assigned at birth (“cisgender”), it must be considered discrimination on grounds of gender identity. Name and gender identity are essential aspects of a person’s private life so the State should have only a narrow margin of appreciation in applying any restrictions to procedures that disproportionately affect transgender people.

LGR, civil status and birth certificate

(Application no. 8650/12), 4 August 2017

Find here the communicated case.

• The applicant, a post-operative transgender man, complained that Russia failed to discharge its positive obligation to recognise not only his gender transition, but also his civil status and parental ties without being required continuously to disclose that he had undergone transition.
• ILGA-Europe together with TGEU, Transgender Legal Defense Project, Human Rights Centre “Memorial” and “Coming Out”  submitted the following:
  • Restrictive LGR procedures hinder the ability of trans people to enjoy their family life. To secure the fundamental rights of trans persons, a change to an individual’s gender markers in official documents should apply for all legal purposes.
  • Birth certificates are frequently used in Russia. As a result, when a trans parent who changed their documentation, but was not able to get relevant amendments in their children’s birth certificates, has any contacts with third parties representing the children’s interests, it leads to revealing the trans person’s personal history and, usually, discrimination against that person and their family members. The situation is exacerbated by the discriminatory social and legal environment in Russia.

Legal gender recognition

(Application no 29683/16), 28 July 2017

Find here the full judgement (violation of Article 8 and award of damages).

• The applicant, who is transgender man, complained of the lack of a regulatory framework for the legal recognition of his gender identity and about the requirement, which had no basis in domestic law, that he undergoes genital surgery as a precondition for having his  gender identity recognised. 
• The European Court of Human Rights delivered its judgement on 17 January 2019:
  • In its judgement, the Court referred to the submission, in particular the relevant case-law of the Court with respect to transgender individuals’ rights to have their gender identity legally recognised. It referred to the comparative information about the situation in different Council of Europe member States, which given the recent developments, indicated a clear trend towards greater autonomy of individuals in legal gender recognition procedures. The reforms that were underway reflected the fact that the European standard of “quick, transparent and accessible” legal gender recognition procedures “based on self-determination” were implemented in practice. Referring to the case of A.P., Garçon and Nicot, the interveners submitted that legal gender recognition should not be dependent on gender reassignment surgery or hormonal treatment. The lack of statutory regulation of legal gender recognition procedures in the respondent State created a state of uncertainty for transgender people, which mitigated in favour of inconsistent practice being created and applied by the domestic authorities. Furthermore, there was limited access to trans-specific health care, which impeded any medical treatment (not available in the respondent State) in order to have gender identity recognised (paras 61-62).
  • The Court found that the case revealed legislative gaps and serious deficiencies that left the applicant in a situation of distressing uncertainty vis-à-vis his private life and the recognition of his identity, causing long-term negative consequences for his mental health. Thus there was a violation of Article 8 of the Convention.

Asylum/ arbitrary refoulement

(Application no. 43987/16), 24 July 2017 

Find Court’s communication here.

• The applicant complained under Article 3 of the European Convention about his impending expulsion to Gambia. He feared that, owing to his homosexuality, even a temporary return to Gambia would expose him to a real risk of arbitrary detention, imprisonment and torture.
• ILGA-Europe together with the AIRE Centre, the ECRE and the ICJ  submitted that:
  • Concealment is probative of a subjective fear of persecution and constitutes evidence of the objective well-foundedness of that subjective fear . Mental harm resulting from fear of exposure to physical harm has been found by the ECtHR to constitute cruel, inhuman and degrading treatment. Enforcing removals on the basis that the individuals concerned would be expected to conceal their sexual orientation would constitute arbitrary refoulement and thus violate Article 3.
  • In Gambia, consensual same-sex sexual activity, can give rise to a number of very serious criminal offences, with penalties ranging from seven years to imprisonment for life. In turn, the criminalization of consensual same-sex sexual relations fosters a climate of state-sanctioned homophobia, resulting in abuse, discrimination and violence by state and non-state actors. The mere existence of laws that criminalize consensual same-sex sexual conduct enables, encourages and contributes to the persecutory environment that exists in Gambia and exposes LGBT individuals to real risks of persecutory harm.

Detention and mistreatment of transgender sex workers and their lawyer.

(Application no. 459/16), 13 July 2017

Find Court’s communication here.

• According to the applicants, from May to June 2013, transgender persons were stopped by police officers on streets or taken out from inside of their cars and subsequently brought to a police station in Greece. The first applicant, a lawyer and human rights activist went to the police station – in order to represent a transgender woman – where she was mistreated by the police and placed in a cell for about 20 minutes. The applicants’ complaints against the policemen in charge were discontinued by the Greece authorities.
• ILGA-Europe together with TGEU, Greek Transgender Support Association and International Committee on the Rights of Sex Workers in Europe  addressed the following:
  • As the  facts  of  the  case  were representative  of  wider patterns  of  state persecution of  (trans)  sex  workers in  Greece  and beyond,  which  typically  included assault  and  arbitrary  arrests the submission provided available evidence of this within the broader context.  Detailed studies on the situation in Eastern Europe and Central Asia show that sex workers are confronted with high levels of violence from the part of state and non-state actors. Physical and sexual violence by the police reportedly occurs in the course or under the threat of arrest and detention. ‘Facially-neutral’ regulations are often misused to persecute trans sex workers. Studies suggest that trans sex workers in Eastern Europe and Central Asia face higher levels of violence by police than their cisgender peers. Hate crime targeting trans people remains mostly unreported. Even when complaints are duly lodged, police often refuse to register or investigate the allegations in question, effectively blocking the victims’ access to justice and safety.
  • Trans people in Greece experience severe isolation, discrimination, prejudice and exclusion on the basis of their gender identity, particularly in relation to accessing and holding employment. Robust and accessible gender recognition procedures are still lacking, leaving many trans people without documents and educational certificates that match their gender identity and thus hindering their access to the regular job market. In order to make ends meet, many trans women turn to sex work, suffering additional stigma as a result. Trans sex workers often face systematic persecution, in the form of police crackdowns targeting marginalized groups.
  • Regional and global standards underpin the States’ positive obligation to protect trans sex workers from violence. This includes conducting effective investigation of transphobic crime, particularly when perpetrated by law-enforcement agents and taking into account a bias motive related to gender identity at the sentencing stage. Furthermore, gender identity is a prohibited ground of discrimination under regional and international law. The ECtHR has already found a procedural violation of Article 14 in conjunction with Article 3, based on the authorities’ failure to undertake crucial investigatory steps, including an intersectional analysis, by taking into account the applicant’s “special vulnerability“(B.S. v. Spain, no. 47159/08, 24 July 2012). National and other regional courts have followed the same approach.

Refusal to grant asylum/ Risk of persecution based on sexual orientation

(Application No. 61145/16), 6 July 2017 

Find Court’s communication here in French.

Find Court’s decision here in French.

• The applicant, gay asylum seeker from Cameroon, claimed he would face a real risk of treatment contrary to Article 3 because of his sexual orientation if he were deported back to Cameroon.
• Professor Robert Wintemute (School of Law, King’s College London) submitted the following on behalf of ILGA-Europe, FIDH, LDH and ECSOL :
  • There is a strong consensus in European and other democratic societies supporting asylum claims by LGBTI persons. The assessment of the risk must take into account the likelihood that an openly LGBTI person would suffer treatment violating Article 2 or 3. An LGBTI person cannot be expected to conceal their sexual orientation or gender identity in their country of origin to reduce the risk of treatment violating Article 2 or 3.
  • Apart from any risk of violence, the Court should consider a real risk of imprisonment for private, consensual, adult, same-sex sexual activity (as in Cameroon) as a real risk of inhuman or degrading treatment violating Article 3.

Access to MAP

(Application No. 22612/15), 12 June 2017

Find here the communicated case.

Find here the decision of inadmissibility.

• The applicants, a same-sex married couple, complain that their request for artificial insemination has been rejected on the ground of their sexual orientation. Donor insemination is legal in France and has been available, since at least 1994, to unmarried different-sex couples.
• ILGA-Europe together with FIDH, NELFA, ECSOL, LDH, ADHEOS and ADFH  submitted the following:
  • The decision to apply for a legally available opportunity to become a genetic parent clearly falls within the ambit of Article 8, whether taken on its own or in conjunction with Article 14. The Court’s consistent case law prohibits differences in treatment between same-sex couples and unmarried different-sex couples. It has found discrimination, violating Article 14 combined with another Convention right, where a same-sex couple was denied a right or opportunity granted to unmarried different-sex couples.
  • The situation of a lesbian couple is relevantly similar (or comparable) to the situation of an unmarried different-sex couple who request donor insemination, so that the female (but not the male) partner can become the genetic parent of a child. Particularly serious reasons, or particularly convincing and weighty reasons, do not exist for the difference in treatment between lesbian couples and unmarried different-sex couples.
  • Developments in other Council of Europe member states and other democratic societies support a narrow margin of appreciation. Indeed, in the majority of Council of Europe member states, and in other democratic societies, lesbian women have access to donor insemination, as individuals or as couples.

Asylum

(Application no. 13273/16), 16 January 2017

Find here the communicated case in French.

Find here the decision in French and Spanish.

• The applicant feared that, owing to his homosexuality, his return to Senegal would expose him to a real risk of treatment contrary to Articles 2 and 3 of the Convention.
• ILGA-Europe together with the AIRE Centre, ECRE, HDT and the ICJ  submitted the following:
  • Mental harm resulting from fear of exposure to physical harm has been found by the ECtHR to constitute cruel, inhuman and degrading treatment. According to refugee law, in some cases psychological harm is persecutory. Concealment is probative of a subjective fear of persecution and constitutes evidence of the objective well-foundedness of a subjective fear of persecution. Requiring coerced concealment of someone’s same-sex sexual orientation – as a way, purportedly, to mitigate the real risk of their being exposed to Article 3 prohibited treatment – constitutes arbitrary refoulement and thus violates Article 3.
  • The criminalization of consensual same-sex sexual relations in Senegal fosters a climate of state-sanctioned homophobia, resulting in abuse, discrimination and violence by state and non-state actors. It enables, encourages and contributes to the persecutory environment that exists in Senegal and exposes LGBT individuals to real risks of persecutory harm.

Freedom of association

Application No. 58282/12, 29 July 2016 

Find Court’s communication here.

Find Court’s judgment here.

• The applicants (Mr Alekseyev, the founder and executive director of the second applicant, Movement for Marriage Equality, aimed defending human rights in the sphere of marriage relations, of combatting discrimination on the grounds of sexual orientation and gender identity and of promoting equality for gays, lesbians, bisexuals and transsexuals, in particular through legalisation for same-sex marriage ) complained about the refusal to register the organisation and of discrimination on grounds of sexual orientation. They argued that the refusal to register the organisation was based on the Russian authorities’ conviction that homosexuality was immoral.
• ILGA-Europe together with the European Human Rights Advocacy Centre and the ICJ  submitted the following:
  • According to the ECtHR, associations formed for the purposes of asserting a minority consciousness are protected by freedom of association.
  • Under international and European standards, restrictions to freedom of association require a very strong justification. The ECtHR has recognised that the Convention requires the exercise of the right to freedom of expression and peaceful assembly by LGBT persons.
  • Sexual orientation is a prohibited ground of discrimination (Article 14 of the Convention) according to the ECtHR. A restriction imposed on grounds of public morality will not be regarded as compatible with European and international standards where this is inconsistent with other protected rights and, in particular, entails discrimination on grounds of sexual orientation.
  • ECtHR delivered judgment on 16 July 2019, where it found that refusals to register the applicant organisations on the ground that they promoted LGBT rights cannot be said to be reasonably or objectively justified, thus were in violation of Article 11 on freedom of association in conjunction with Article 14.

Asylum

(Application No. 35949/11), 15 January 2016 

Find Court’s communication here in French.

Find Court’s decision here in French. (inadmissible – Premature application)

• The case concerns a lesbian Cameroonian asylum seeker threatened with expulsion from Spain to Cameroon.
• ILGA-Europe together with FIDH, APDHE, ECSOL and UKLGIG submitted the following:
  • There is a strong consensus in European and other democratic societies supporting asylum claims by LGBTI persons.
  • According to European and international human rights law standards, an LGBTI person cannot be expected to conceal their sexual orientation or gender identity in their country of origin to reduce the risk of treatment violating Article 2 or 3.
  • In Cameroon, the criminal law prohibits all same-sex sexual activity, and it is enforced. Apart from any risk of violence, the Court should consider a real risk of imprisonment for private, consensual, adult, same-sex sexual activity (as in Cameroon) as a real risk of inhuman or degrading treatment violating Article 3.

Arbitrary detention

(Application no. 9912/15), 21 October 2015 

Find Court’s communication here.

• The case concerned immigration detention of a gay asylum seeker from Iran for nearly two months before granting refugee status in Hungary. The applicant complained that his asylum detention was not lawful or justified. It was arbitrary, because the court ordered it without properly analysing the legal grounds, his personal circumstances or the applicability of less stringent measures.
• ILGA-Europe together with the AIRE Centre, the ECRE and the ICJ submitted that:
  • The Contracting Parties have an obligation under the Convention to take account of the particular risks that the detention of asylum-seekers entails, including, in particular, when deciding to detain those asylum-seekers who might have been exposed to abuse and/or may risk violence and discrimination on account of their sexual orientation while in detention.
  • The interveners stressed the relevance of the EU asylum acquis, the EU Charter of Fundamental Rights and the 1951 UN Convention relating to the Status of Refugees, as amended by its 1967 Protocol, 2 to the determination of the scope and content of Contracting Parties’ obligations under Art 5(1) of the European Convention on Human Rights
• The European Court of Human Rights delivered its judgement on 5 July 2016.
• The Court held that the applicant’s detention verged on arbitrariness and did not contain any adequate reflection on his individual circumstances as a member of a vulnerable group by virtue of belonging to a sexual minority in Iran. Consequently the Court found a violation of Article 5 § 1 of the Convention.

Legal gender recognition

A.P. v. France (App. no. 79885/12),

Garçon v. France (App. no. 52471/13)

Nicot v. France (App. no. 52596/13), 24 July 2015 (Key case according to the classification of the ECHR HUDOC database)

Find Court’s judgment here.

• The cases concern the validity of medical requirements imposed by the French authorities on those seeking legal gender recognition, including most prominently permanent sterilization.
• ILGA-Europe together with Amnesty International and TGEU  submitted the following:
  • The informed consent rule has been linked by the ECtHR to the “inalienable right to self-determination” and “the right to personal autonomy” which come within the scope of the right to respect of private life and the fundamental notions of human dignity and human freedom underpinning the Convention. The flip side of consent is the right to refuse medical treatment.
  • The Court has described gender identity as “one of the most basic essentials of self-determination,” linking it to a “right to sexual self-determination,” itself an aspect of the right to respect for private life. Denying a trans person the legal recognition of their gender identity has a severe impact on their daily lives. In Europe there has been a clear trend recently towards simplifying legal gender recognition procedures, including by abandoning sterilization and/or other medical prerequisites.
• The European Court of Human Rights delivered its judgement 6 April 2017.
• The Court held that the refusal for a change in civil status, on the grounds that the applicants had not provided proof of the irreversible nature of the change in their appearance – that is to say, demonstrated that they had undergone sterilisation surgery or medical treatment entailing a very high probability of sterility ­– amounts to a failure by the respondent State to fulfil its positive obligation to secure their right to respect for their private lives. There has therefore been a violation of Article 8 of the Convention.

Asylum

(Application no. 78701/14), 19 May 2015

Find Court’s decision here. (struck out of the list of cases)

• The applicant complains under Articles 2 and 3 of the Convention that his expulsion from Sweden to Iran would expose him to a real risk of being sentenced to death or subjected to torture or ill-treatment because of his sexual orientation.
• ILGA-Europe together with the AIRE Centre, Amnesty International, the ICJ and the UK Lesbian and Gay Immigration Group submitted the following:
  • Requiring coerced, including self-enforced, suppression of a fundamental aspect of one’s identity is not compatible with the Convention.
  • The criminalization of consensual same-sex sexual conduct gives rise to a real risk of Article 3 prohibited treatment, thus triggering non-refoulement obligations.

Asylum

(Application no. 71398/12)

Find the Chamber 2014 judgment here and the final Grand Chamber 2015 judgement here. (Struck out of the list of cases as the applicant was granted a permanent residence permit in Sweden)

• The applicant, a married gay man, alleged that his expulsion to Libya in order for him to apply for family reunion from there would entail a violation of Article 3 of the Convention..
• ILGA-Europe, together with FIDH (Fédération Internationale des Ligues des Droits de l’Homme) and ICJ (International Commission of Jurists) submitted the following:
  • There is a consensus in European and other democratic societies in support of gay and lesbian asylum and of greater recognition of, and protection for, the right of gay and lesbian individuals to ‘live freely and openly’. According to national, European and international human rights law standards, an LGBTI person cannot be expected to conceal their sexual orientation or gender identity in their country of origin to reduce the risk of ill-treatment. Concealment may also result in significant psychological and other harm.
  • The interveners provided background country evidence demonstrating that a gay man open about his same-sex marriage in Libya faced substantial grounds for fearing a real risk of arrest, abduction and physical assault by state sanctioned militia. Gay men could not live freely and openly in Libya, without the risk of treatment contrary to Article 3. Even where the exposure to a risk of treatment contrary to Article 3 is expected to be temporary, the period of expulsion is immaterial, because the right to be protected against ill-treatment is absolute.
• Latest update on the situation: the threat of a violation was removed by the Migration Board’s decision (2014) of repealing the expulsion and granting the applicant permanent residence in Sweden.

Ban on Belgrade Pride marches

(Application nos. 5591/10 17802/12 23138/13 25474/14), 17 November 2014 

Find Court’s communication here.

• This group of cases relate to the banning of the 2009, 2011, 2012 and 2013 Belgrade Pride marches, because of the possible danger of violent counterdemonstrations. The applicants complained of State’s failure to protect their freedom of assembly due to discriminatory intent on the part of the state authorities based on the actual or perceived sexual orientation of the applicants and potential participants in the Parade. 
• ILGA-Europe together with the International Commission of Jurists submitted the following:
  • States should be afforded a narrow discretion in relation to the means used or measures to be taken in preventing violence or disorder, particularly where the threat of violence or intimidation comes primarily from counter-demonstrators; can reasonably be anticipated; and is directed at groups most at risk.
  • States must put in place an adequate legislative and administrative framework to guarantee and facilitate the right to freedom of assembly.

Asylum

(Application No. 30953/11), March 2014 

Find Court’s communication here.

Find Court’s decision here. (struck out of the list of cases, no risk of any imminent refoulement as the applicant has been granted a continuous residence permit valid for one year in Finland)

• The applicant, gay asylum seeker from Iran, complained under Article 3 of the European Convention that he feared  ill-treatment or torture if removed to Iran. He claimed that the Iranian police had evidence of his homosexuality (photos and videotapes) and that his homosexual friends had already been arrested.
• ILGA-Europe together with AIRE Centre, ECRE, FIDH, FLHR, INTERIGHTS and UKLGIG submitted the following:
  • Since 2004, when the Court had the opportunity to consider expulsion of an LGBT person to home country, European consensus has developed socially, politically and legally to a point where there is greater recognition of, and protection for, the right of gay and lesbian individuals to ‘live freely and openly’.
  • According to European and international human rights law standards, an LGBTI person cannot be expected to conceal their sexual orientation or gender identity in their country of origin to reduce the risk of treatment violating Article 3.
  • The mere existence of laws criminalizing consensual same-sex sexual conduct can give rise to acts of persecution. It discloses dispositive evidence of a real risk of Article 3 prohibited treatment.
  • The recent legislative re-codification of the criminalisation of consensual same-sex sexual activity in Iran reinforces homophobic societal norms and prejudices in Iran. The risk of discovery and consequent persecution is ever-present for returning gay men and lesbians, impacting upon and informing their behaviour in all aspects of their private and public lives in a manner wholly inconsistent with their right to freedom from treatment contrary to Article 3.
• Update on the situation: the application was struck out of the list of cases because there was no risk of any imminent refoulement as the applicant has been granted a continuous residence permit for one year with a possibility of renewal in Finland.

Physical violence on ground of sexual orientation.

(Application no. 50231/13), 9 May 2014 

Find Court’s communication here.

• The applicant complained of the lack of an appropriate procedural response of the Croatian authorities to an act of violence by a private party motivated by her sexual orientation.
• ILGA-Europe together with the AIRE Centre and the ICJ provided an overview of the prevalence and nature of homophobic and transphobic hate crimes in Council of Europe member states. They presented a survey of international, EU and comparative law on the procedural and substantive obligations of member states to investigate such crimes, including a possible bias motive, and, when determining sanctions, to take proper account of the bias motive. 

Same-sex marriage/ Civil union

Oliari and Others (No. 18766/11),

Orlandi and Others v Italy (No. 26431/12), 27 Mars 2014 

Find Court’s judgement here. (Violation of Article 8 of the Convention and award of damages)

• The applicants complained that the Italian legislation did not allow them to get married or enter into any other type of civil union and thus they were being discriminated against as a result of their sexual orientation.
• The European Court of Human Rights delivered its judgement on 21 July 2015.
• The Court made a lengthy reference to the submission, particularly the demonstration of the positive obligation to provide some means of recognition supported by the emerging consensus in European and other democratic societies (paras 134-139) and of the indirect discrimination against same-sex couples (paras 140-143).
• The Court found that the Italian Government had overstepped their margin of appreciation and failed to fulfil their positive obligation to ensure that the applicants have available a specific legal framework providing for the recognition and protection of their same-sex unions (para 185).  To find otherwise today, the Court would have to be unwilling to take note of the changing conditions in Italy and be reluctant to apply the Convention in a way which is practical and effective (para 186). It found violation of Article 8 of the Convention, and considered unnecessary examining the allegations under Articles 14 in conjunction with 8, and Article 12.