LGBTI equality and human rights in Europe and Central Asia

Cases

In a majority of cases with ILGA-Europe’s involvement, there has been a positive outcome. Find here our successes and all third party interventions to the European Court of Human Rights by ILGA-Europe and partners.

 

In a majority of cases with ILGA-Europe’s involvement, there has been a positive outcome. To date, the ECtHR has adopted the same reasoning as ILGA-Europe and its partners in thirteen cases, while a number of cases where ILGA-Europe has intervened are still pending awaiting judgement.


2019

B and C v Switzerland - Asylum/ arbitrary refoulement

(Application no. 889/19), 18 December 2019

Find here the communicated case.

Find here our intervention.

  • The applicant is a national of Gambia. He is in registered same-sex partnership with a Swiss national. The applicant complains about the refusal of a residence permit and his impending expulsion to Gambia where he would face a risk of being subjected to treatment in breach of Article 3 of the Convention.
  • ILGA-Europe together with the European Council on Refugees and Exiles (ECRE) and the International Commission of Jurists (ICJ)  submitted the following:
    • Criminalization of consensual same-sex sexual conduct is incompatible with international human rights standards and is discriminatory. Besides, the absence of data on the implementation of criminal law may in itself be evidence of oppression and threats suffered by LGBTI persons.
    • Concealment 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 pain and suffering amounting to proscribed treatment under Article 3 even if temporary. 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.
    • 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 ECHR.
    • 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.

Armine Oganezova against Armenia – Hate speech and violence against LGBTI

(Apps nos. 71367/12 and 72961/12), 15 October 2019 

Find here the communicated case.

Find here our intervention.

  • The applicant was a well-known member of the LGBT community in Armenia and co-owner a club where members of the LGBT community would meet to socialise.  She had attended Istanbul Pride in 2011 and given interviews to some media outlets criticising Armenia’s human rights record. As a result she became the subject of an online hate campaign because of her sexual orientation. Shortly thereafter several people organised an arson attack on the club co-owned by her. She faced threats and harassment and was subjected to hate speech by high profile government representatives and members of the parliament. Given lack of anti-discrimination legislation in Armenia, applicant’s sexual orientation was not considered as a motive for the acts and there was no effective investigation.
  • ILGA-Europe together with the AIRE Centre, the ICJ and Human Rights Watch submitted the following:
    • The identity of victim of violence as an LGBT person should be taken into account in the assessment of Article 3 violations.  Indeed the discrimination directed towards LGBT persons may indicate a particular motive and intent that may meet the threshold of Article 3 ECHR should be taken into account in the assessment of Article 3 violations. Indeed, discriminatory use of violence against a vulnerable group is an important factor and the ECtHR has acknowledged that LGBTI minorities may constitute vulnerable groups.
    • Contracting States have a positive obligation under Articles 3 and 8 of the ECHR to protect from and investigate allegations of violence with discriminatory elements. According to the ECtHR, the State has a heightened burden of protection when there is prior knowledge of public hostility towards the LGBT community. These obligations are also widely recognized by current international and regional standards.
    • Armenian legislation does not afford protection against explicitly homophobic or transphobic violence or threats or other incitement to such violence. In practice, LGBT persons and affiliates in Armenia continuously struggle to enjoy equality, both at personal and societal levels.
    • It is of particular importance :
      • To protect persons from violence, and put in place necessary legislative, policy and other measures for unmasking any discriminatory motive or intent present in the acts of violence.
      • To ensure that a comprehensive anti-discrimination legislation is in place, and sexual orientation and gender identity are explicitly recognized as protected grounds for discrimination. 

A.D.-K. & Others v. Poland – Adoption

(Application No. 30806/15), 25 July 2019 

Find here the communicated case.

Find here our intervention.

  • The application concerns second-parent adoption, one means of creating a legal relationship between a child and her mother’s female partner, who is socially her second mother. One of the applicants in this case gave birth in a London hospital in 2011. The child’s original birth certificate indicated the second applicant as her mother and the first applicant as her parent. However, the Polish authorities refused to register the child’s birth certificate in the Polish Civil Status Register.
  • ILGA-Europe together with FIDH, PSAL, NELFA and ECSOL submitted the following:
    • In its Advisory Opinion of 10 April 2019, the ECtHR considered that the best interest of the child are paramount and he or she accordingly has an Article 8 right to the possibility of a legal parent-child relationship with the intended (non-genetic) mother. Member States are free to choose the means to create such legal relationship; such means may include adoption.
    • Sexual orientation is a prohibited ground of discrimination under Article 14 ECHR and discrimination on this ground is considered ‘suspect’ and subject to ‘particularly severe scrutiny’. There is no justification for discrimination against families composed of a same-sex couple and the children they are raising together.
    • There is a clear European and international trend concerning the possibility that a child may have two legal parents of the same sex after a second-parent adoption. Judicial reasoning in European and other democratic societies supports an obligation not to discriminate against same-sex couples and their children. A number of national courts have concluded that the best interests of children being raised by same-sex couples are served by permitting second-parent adoption.

Schlittner-Hay v. Poland – Rainbow family and children rights

(Apps no. 56846/15 and 56849/15), 23 July 2019

Find here the communicated case.

Find here our intervention.

  • The applicants – two twins born through surrogacy – complain that despite the fact that their biological father Mr S. is a Polish citizen, they were refused Polish citizenship by descent on the ground that their birth certificate indicated two men as their parents.
  • ILGA-Europe together with the CRIN, the HFHR, the NELFA and the Polish Society of Anti-Discrimination Law submitted the following:
    • The best interests of the child shall be a primary consideration in all actions concerning children. According to the ECtHR, parent-child relationships fall within the ambit of family life covered by Article 8. Refusal by State authorities to recognise existing family ties established under foreign law generally establishes interference in family life as well as private life.
    • According to the Supreme Administrative Court of Poland (SAC), the fact that the child was born by a surrogate is irrelevant for his/her legal status since every child has the right to citizenship if one of his/her parents is a Polish citizen. National Courts similarly held that the established de facto relations between adults and the minor in whose family this is created must be established, promoted, protected and integrated, all in the best interests of the child.
    • Sexual orientation is a prohibited ground of discrimination under Article 14 ECHR. Accordingly, the children of rainbow families should not be “penalised in [their] daily existence” simply because of their association with their parents because of their sexual orientation.

X. v Poland – Custody rights

(Application no. 20741/10), 19 July 2019

Find here the communicated case.

Find here our intervention.

  • Following a divorce, a mother was denied custody of her three children on grounds of her sexual orientation.
  • ILGA-Europe together with FIDH, ICJ, KPH and NELFA submitted the following:
    • The ECtHR expressly stated that the concept of one’s sexual orientation is a prohibited ground of discrimination under Article 14 ECHR and discrimination on this ground  is considered ‘suspect’ and subject to ‘particularly severe scrutiny’. The Court has confirmed that parent-child ties and custody cases fall under Article 8, and applies to LGBTI parents'. In Salgueiro da Silva Mouta v. Portugal, the ECtHR considered that the refusal to grand custody over the child based on the applicant’s sexual orientation constituted a violation of Article 8 in conjunction with Article 14. The IACtHR reached the same conclusion in Atala Riffo y Ninas v Chile, where custody rights were denied to the mother due to her sexual orientation. A number of national courts in Europe and internationally have considered the custodial rights of gay and lesbian parents, affirming their right to equal access to children without discrimination based on sexual orientation.
    • This case provides the Court with the opportunity to reaffirm its findings made in Salgueiro da Silva Mouta v. Portugal and confirm rights of parents irrespective of their sexual orientation or gender identity and expression to equal access to custody of their children.

A. against Azerbaijan and 24 other applications – Violence against LGBTI

(Application no. 17184/18), 15 July 2019

Find here the communicated case.

Find here our intervention.

Find here related news to the subject.

  • The present case involves targeted arrests, ill-treatment and forced medical examinations in detention of members of the LGBTI community in Baku.
  • ILGA-Europe together with Civil Rights Defenders and REDRESS submitted the following:
    • The status of the victim of violence as a sexual or gender minority should be taken into account in the assessment of Article 3 violations. Indeed, discriminatory use of violence against a vulnerable group is an important factor and the ECtHR has acknowledged that LGBTI minorities may constitute vulnerable groups.
    • Forced medical examinations directed at LGBTI members constitute a breach of Article 3 and Article 8 of the Convention. International human rights bodies denounce cases of forced medical examinations, describing them as torture and ill-treatment. The context of detention, the environment of negative attitudes against LGBTI minorities and the discriminatory motives of the medical examinations are relevant factors for the Court’s finding of an Article 3 violation.
    • Contracting States have a positive obligation under the Convention to investigate allegations of ill-treatment and torture with discriminatory elements. According to the ECtHR, a failure to unmask the role of possible homophobic motives constitutes an infringement of Article 3 in its procedural element in conjunction with Article 14 of the Convention.
    • Widespread discriminatory laws and practices against LGBTI people in Azerbaijan underline their vulnerability to discriminatory torture and ill-treatment.

O.H. and G.H. against Germany – Legal gender recognition

(Apps. nos. 53568/18 and 54741/18), 25 June 2019

Find here the communicated case.

Find here our intervention.

  • The present case concerns a transgender man who gave birth and applied to be registered as father to his child. The German authorities refused his request and registered him instead as mother under his former female forename.
  • ILGA-Europe together with TGEU submitted the following:
    • Restrictive LGR procedures hinder the ability of trans people to enjoy their family life. The law is often not adapted to their situations, as trans parents are frequently forced to disclose their trans identity because of a mismatch between public records and the children’s birth certificate.
    • In 2018, the Parliamentary Assembly adopted a resolution asking States to provide for transgender parents’ gender identity to be correctly recorded on their children’s birth certificates. The Yogyakarta Principles specify that “States shall issue birth certificates for children upon birth that reflect the self-defined gender identity of the parents.”
    • In Germany, the state de facto dictates a single possible parenting structure, enforces gender norms (a pregnant person is always a mother) and erases the lived reality of other possibilities. Consequently, birth certificates are often contradictory to the reality, forcing trans parents to reveal their trans identity, thus leading to frequent discriminatory and degrading treatments against trans parents and their children in their daily life.

A.D. against Georgia and A.K. against Georgia – Gender reassignment treatment required prior to LGR

(Applications nos. 57864/17 and 79087/17), 14 mars 2019

Find here the communicated case.

Find here our intervention.

Communicated case: 

  • The present case concerns the Georgian authorities’ refusal to recognise the applicants’ gender identity unless they agreed to undergo gender reassignment treatment.
  • In their joint submission ILGA-Europe and TGEU submitted :
    • Gender identity is a basic attribute of self-determination, which is protected under the right to respect for private life (Article 8 ECHR). As acknowledged by the ECtHR, lack of accurate identification causes suffering. The right to gender self-determination has been affirmed by the Parliamentary Assembly and the Commissioner for Human Rights; and a clear European consensus to regulate LGR is emerging in Council of Europe member States.
    • The diagnosis requirement is based on the pre-conceived idea that trans identities are inherently disordered. Pathologisation subverts an essential aspect of human personality and leads to serious human rights violations. In A.P, Garçon and Nicot v. France, the Court ruled that the requirement to undergo sterilisation or treatment involving a very high probability of sterility as a precondition to LGR was in breach of the right to respect for private life under Article 8 and engaged Article 3. Other recent regional developments suggest that the scope of the discretion available to States in the area of LGR is becoming narrower.
    • Gender identity emerges as a protected ground under international anti-discrimination law. Research consistently indicates that trans people suffer from disproportionately high levels of violence, harassment and discrimination in all fields of life. For this reason they should qualify for heightened protection under Article 14 ECHR. Gender identity is protected under Article 14, although the language used by the Court to date has been inconsistent.

S.A.C. v UK – Arbitrary refoulement

(Application no. 31428/18), 28 February 2019

Find here the communicated case.

Find here our intervention.

Communicated case: 

  • The applicant in this case complained that he that he would facea real risk of serious and irreversible harm under Article 3 of the Convention if he were to return to Bangladesh as a gay/bisexual man.
  • ILGA-Europe together with the ICJ (International Commission of Jurists) and the UK Lesbian and Gay Immigration Group (UKLGIG) submitted the following:
    • There is a consistent approach in the case-law relating to Bangladesh as a country where imputation, suspicion, discovery or identification of someone’s sexual orientation or identity as LGBT is likely to give rise to a real risk of serious harm.
    • According to the ECtHR, treatment which is grounded upon a predisposed bias on the part of a heterosexual majority against a homosexual minority may, in principle, fall within the scope of Article 3. Under refugee law, prosecution may amount to persecution if the criminal law is enforced or punishment meted out in a disproportionate or discriminatory manner.
    • Concealment 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 pain and suffering amounting to proscribed treatment under Article 3 even if temporary. 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.
    • 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 ECHR.

2018

Alekseyev and Others v. Russia​ – Hate speech

(Application No. 39954/09), 11 Avril 2018

Find here the communicated case.

Find here our intervention.

  • The applications concern two interviews with public officials published in the national press, during which heinous statements against homosexuals were made. The Russian authorities refused to open criminal proceedings, finding that homosexuals were not a social group and that the applicants were not personally targeted by the contested statement.
  • ILGA-Europe submitted the following:
    • There is widespread recognition within Europe and beyond that homophobic and transphobic statements amount to hate speech. The ECtHR and other human rights bodies have highlighted the particular responsibility of politicians to avoid disseminating words likely to foster intolerance.
    • Homophobic and transphobic statements have a humiliating and stigmatising effect. The ECtHR has considered that violence perpetrated with homophobic and transphobic overtones was capable of meeting the threshold required for a violation of Article 3. Homophobic and transphobic statements can also have extremely serious repercussions for the enjoyment of other rights and freedoms, notably, the right to respect for private and family life and the prohibition of discrimination under Articles 8 and 14 of the Convention.
    • International and European law and standards support the need for action against particular uses of hate speech through the application of administrative, civil and criminal law.

Iachimovschi v. the Republic of Moldova and 5 other applications – Violence against LGBTI

(Nos. 21029/13, 40620/14, 23914/15, 26806/15, 32617/16 and 49542/16), 17 September 2018

Find here the communicated case.

Find here our intervention.

  • The applications concern violence caused by private individuals and/or the danger of repeated such violence, as well as the alleged insufficiency of investigations and/or impunity of the perpetrators by the Moldavian authorities.
  • ILGA-Europe together with the Equal Rights Trust submitted that:
    • It is critical that the potential application of Article 14 be given specific consideration wherever there is a prima facie case that violence is motivated by bias against LGBT+ persons. Bias-motivated violence impacts disproportionately and differently on members of minority groups, including LGBT+ persons. It thus demands a response which recognises its discriminatory causes and consequences.
    • Positive obligations under Articles 14 and 3 encompass duties of prevention, protection, investigation and prosecution. Violations of Article 14 taken with Article 3 may be found where particular judicial or prosecutorial practices have a disproportionate impact on individuals of a vulnerable group and fail to take into account the discriminatory nature of the violence.

Minasyan and others v. Armenia –Incitement to discrimination/Hate speech

(Application no. 59180/15), 20 July 2018

Find here the communicated case.

Find here our intervention.

  • The applications involve newspaper publications containing discriminatory language and incitement to discrimination against the applicants due to their association with the LGBT community and/or their perceived sexual orientation. The Armenian courts ignored the allegations of discrimination based on actual or perceived sexual orientation and gender identity.
  • ILGA-Europe together with TGEU submitted the following:
    • The ECtHR and other authoritative bodies in Europe and beyond have recognised that homophobic and transphobic statements constitute hate speech. Besides, the Court held that homophobic and transphobic speech may violate Articles 8 and 14 ECHR due to its humiliating and stigmatising effect.
    • Contracting States have a positive obligation to protect against and investigate hate speech. This obligation is heightened when hate speech is motivated by discrimination against one’s actual or perceived sexual orientation or gender identity. The margin of appreciation allowed to the State under Article 8 may be restricted because sexual orientation and gender identity are important facets of an individual’s private life and can be used as a marker of group identity. In addition, acknowledging a heightened level of protection does not contravene freedom of expression, which is not an absolute right and can be restricted according to Article 10(2).
    • LGBT persons and affiliates in Armenia are prevented from seeking redress against hate/discriminatory speech, and continuously struggle to enjoy equality, both at personal and societal levels due to lack of of adequate legal framework and the hostile attitudes against the LGBT community.

R.L. against Russia and P.O. against Russia – Restricted access to LGR

(Applications nos. 36253/13 and 52516/13), 19 March 2018

Find here the communicated case.

Find here our intervention.

  • The applicants are Russian transgender men. Due to the absence of a transparent and accessible procedure for changing their names and gender markers, the Russian authorities refused to recognise their gender identity unless they agreed to undergo various medical procedures.
  • ILGA-Europe together with TGEU, ILGA and the Human Rights Centre “Memorial” submitted the following:
    • The ECtHR has described gender identity as “a fundamental aspect of the right to respect for private life” and as “one of the most basic essentials of self-determination,” linking it to a “right to sexual self-determination”.
    • The ECtHR held in A.P, Garçon and Nicot v. France that the requirement to undergo sterilisation or treatment involving a very high probability of sterility in as a precondition to LGR was in breach of the right to respect for private life under Article 8. Several United Nations Treaty Bodies and Special Procedures consider that LGR should not be based on gender reassignment surgery.
    • In Russia, trans persons still face considerable difficulties in access to LGR because of the lack of clarity in Russian legislation.
    • Gender identity emerges as a protected ground under international anti-discrimination law. UN Treaty Bodies consistently mention gender identity among the protected characteristics of anti-discrimination clauses in Universal Treaties. Research consistently indicates that trans people suffer from disproportionately high levels of violence, harassment and discrimination in all fields of life. For this reason they should qualify for heightened protection under Article 14 of the Convention. Gender identity is protected under Article 14, although the language used by the Court to date has been inconsistent. This area of jurisprudence would benefit from some clarity.

Solmaz v. Turkey – Discrimination on the ground of gender identity

(Application no. 49373/17), 13 February 2018

Find here the communicated case.

Find here our intervention.

  • The applicant was taken out of a bar allegedly on account of her appearance and gender identity. Subsequently, she lodged a criminal complaint against the owner of the bar. The Turkish courts considered it had not been proven that the accused’s act had been based on discriminatory motives.
  • ILGA-Europe together with TGEU and  Kaos Gay Lesbian Cultural Research and Solidarity Association (Kaos GL) submitted the following:
    • According to Fundamental Rights Agency survey from 2015, discrimination on the grounds of gender identity was regarded as one of the most widespread forms of discrimination in Europe. It affects notably access to services, employment or health.
    • Gender identity emerges as a protected ground under international anti-discrimination law. UN Treaty Bodies and regional human rights systems consistently mention gender identity among the protected characteristics of anti-discrimination clauses. The same approach is followed through legislation or court practice in numerous European and other democratic societies. Gender identity is protected under Article 14, although the language used by the Court to date has been inconsistent. This area of jurisprudence would benefit from some clarity.
    • In Turkish law, discrimination in different fields is prohibited in different regulations and seen as a violation of rights. However, ‘sexual orientation’ and ‘gender identity’ are not explicitly protected in anti-discrimination law, leaving LGBTI people outside the scope of relevant legislation.

2017

Rana v. Hungary – Change of name and gender of Iranian refugee

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

Find here the communicated case.

Find here our intervention.

  • 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.

Beizaras and Levickas v. Lithuania– Online hate speech

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

Find here the communicated case.

Find here our intervention.

  • 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.

Charron & Merle-Montet v. France– Access to MAP

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

Find here the communicated case.

Find here our intervention.

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.

Y.P. v. Russia – LGR, civil status and birth certificate

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

Find here the communicated case.

Find here our intervention.

  • 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.

X. v. the FYR of Macedonia – LGR

(Application no 29683/16), 28 July 2017

Find here our intervention.

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.

E.S. v. Spain – Asylum

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

Find here the communicated case in French.

Find here our intervention.

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.

Electra Leda Koutra and Anastasia Katzaki– Detention and mistreatment of transgender sex workers and their lawyer

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

Find Court’s communication here.

Find our intervention 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.

M.T. v. France – 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 our intervention here.

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.

O.S. v Switzerland– Asylum/ arbitrary refoulement

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

Find Court’s communication here.

Find our intervention 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.

P. versus Ukraine – Intersex (Legal gender recognition)

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

Find Court’s communication here.

Find our intervention here.

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

  • The applicant,  an intersex person, wasregistered 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.

X v Russia  – Name change request by transgender woman

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

Find Court’s communication here.

Find our intervention 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.

2016

Nikolay Alekseyev and Movement for Marriage Equality against Russia – Freedom of association

Application No. 58282/12, 29 July 2016 

Find Court’s communication here.

Find our intervention 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.

M.B. v Spain – Asylum

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

Find Court’s communication here in French.

Find our intervention here.

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.

2015

A.P. v. France, Garçon v. France, and Nicot v. France – 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 our intervention here.

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.

A.T. v. Sweden – Asylum

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

Find our intervention here.

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.

Bogdanova v. Russia - The rights of trans people in prison

(Application No. 63378/13), 10 June 2015 

Find Court’s communication here.

Find our intervention here.

Communicated case: 

Submission: 

  • The case concerns a transgender prisoner, whose health was jeopardised by the prison authorities’ refusal to provide necessary medical treatment, including the continuation of hormone replacement therapy. The applicant complained about the absence of necessary medical treatment, the lack of an effective remedy and the conditions of her detention as a result of the authorities having disclosed the information about her gender reassignment surgery.
  • ILGA-Europe together with TGEU, Coming Out and the European Professional Association for Transgender Health provided information on medical and legal standards for gender reassignment treatment, highlighting where such treatment is medically necessary, the consequences of interrupting hormone replacement therapy, and best practice in the provision of gender reassignment treatment in prisons. They also highlighted transgender persons’ vulnerability to abuse in prisons, and provided wider context of discriminatory attitudes towards transgender persons in Russia.

DK v. Croatia – Ill-treatment by police officers

(Application no. 28416/14), 8 June 2015 

Find Court’s communication here.

Find our intervention here.

Find Court’s decision here. (Inadmissible, premature complaint before the Court) 

  • The case concerned police ill-treatment and discrimination based on applicant’s sexual orientation, with subsequent lack of an effective investigation by the Croatian authorities in that respect.
  • The joint intervention by ILGA-Europe, the AIRE Centre and the ICJ  focusedon the positive obligations of the Contracting Parties under the Convention in respect of allegations disclosing credible evidence of treatment prohibited under Article 3, sexual orientation and/or gender identity as a ground of discrimination, and the duty of the authorities to take all reasonable steps to identify any discriminatory motive in connection with allegations of ill-treatment.
    • Submissions further argued that discrimination based on sexual orientation is prohibited on the international and European levels. The ECtHR expressly stated that the concept of one’s sexual orientation is a prohibited ground of discrimination under Article 14 ECHR and discrimination on this ground  is considered ‘suspect’ and subject to ‘particularly severe scrutiny’.

O.M. v. Hungary – Arbitrary detention

(Application no. 9912/15)21 October 2015 

Find Court’s communication here.

Find our intervention here.

Find Court's judgement 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.

M.E. v. Sweden – Asylum.

(Application no. 71398/12)

The third-parties intervened before the Chamber in 2013 (Find our intervention here) and before the Grand Chamber in 2015 (Find our intervention here)

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.

2014

A.E. v. Finland – Asylum

(Application No. 30953/11), March 2014 

Find Court’s communication here.

Find our intervention 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.

MC & AC versus Romania – Violent attack against LGBTI individuals

(Application No: 12060/12), January 2014 

Find our intervention here.

Find Court's judgement here. (violation of Articles 3 and 14 and award of damages)

  • The applicants complained about the authorities’ failure to conduct adequate investigation into their criminal complaints concerning acts of violence motivated by hatred against homosexuals, and more generally about the lack of adequate legislative and other measures to combat hate crimes directed against the LGBTI minority in Romania.
  • ILGA-Europe together with FIDH and the AIRE Centre submitted the following:
    • Failure to protect LGBTI individuals from violent attacks or to properly investigate allegations of hate crime and bring the perpetrators to justice threatens not only the rights of the victims but also the rights of the LGBTI community as a whole, as they would fear becoming victims of violent homophobic crimes.
  • The European Court of Human Rights delivered its judgement on 12 April 2016.
  • In its judgement, the Court referred to the submission (paras 101 to 104), particularly regarding the general climate of hostility towards LGBTI individuals in Europe and the very high level of discrimination on grounds of sexual orientation in Romania. The Court also noted ILGA’s call for adequate training for all law enforcement agencies in the field of LGBTI rights and hate crimes.
  • The Court considered that the treatment to which the applicants were subjected and which was directed at their identity must necessarily have aroused in them feelings of fear, anguish and insecurity. It was not compatible with respect for their human dignity. Further, the investigations into the allegations of ill-treatment were ineffective and failed to take into account possible discriminatory motives. Accordingly, the Court found violation of Article 3 read together with Article 14.

MILICA DORDEVIC and others v. Serbia – Ban on Belgrade Pride marches

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

Find Court’s communication here.

Find our intervention 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.

Nikolay Viktorovich BAYEV and two other applicants v. Russia – “Anti-propaganda” laws

(Application Nos: 67667/09, 44092/12, 56717/12), February 2014 

Find our intervention here.

Find Court's judgement here. (violation of Articles 10 and 14 of the Convention) 

  • The present cases arise from the prosecution of three individuals under legislation adopted locally in Russia, prohibiting propaganda of homosexuality among minors and penalising propaganda of bisexuality and transgender identity among minors.
  • ILGA-Europe, together with “Coming Out” (the Russian LGBT Network) submitted the following:
    • These initiatives have been accompanied by homophobic rhetoric at the highest levels of government, repeatedly stigmatising LGBT people as a danger to children. “Propaganda” laws have been used to restrict freedom of assembly, to prohibit events, to prosecute individuals and to arrest participants in a demonstration.
    • European and international bodies have recognised the need to provide relevant, appropriate and objective information about sexual orientation and gender identity, to prevent mental health and sexual health issues.
  • The European Court of Human Rights delivered its judgement on 20 June 2017.
  • The Court referred to the interveners’ concern about discrimination and violence against LGBT people in Russia, hate crimes, bullying and harassment of LGBT children, pressure on same-sex couples and the children they are raising and on LGBT advocacy organisations (para 60). The Court found that the legal provisions in question did not serve to advance the legitimate aim of the protection of morals, and that they were likely to be counterproductive in achieving the declared legitimate aims of the protection of health and the protection of rights of others.
  • Above all, by adopting such laws the authorities reinforce stigma and prejudice and encourage homophobia, which is incompatible with the notions of equality, pluralism and tolerance inherent in a democratic society. Because the legislation also embodies a predisposed bias on the part of the heterosexual majority against the homosexual minority, it gives rise to a violation of Article 14 of the Convention taken in conjunction with Article 10.

Oliari and Others and Orlandi and Others v Italy – same-sex marriage/ civil union

Oliari and Others (No. 18766/11),

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

Find our intervention here.

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.

Sabalic v Croatia – Physical violence on ground of sexual orientation.

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

Find Court’s communication here.

Find our intervention here.

Find the appendix 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. 

2013

Association Accept and Others v Romania - Rights to freedom of association, privacy and freedom from discrimination

(Application no. 48301/08), November 2013 

Find our intervention here.

Find Court's decision here. (Inadmissibility)

  • This present case arises from the requirement by the authorities that ACCEPT Association (“ACCEPT”) provide details of its new members (inter alia name, profession, and home address) for publication in the special register of associations and foundations. ACCEPT’s objective is to promote the rights of lesbian, gay, bisexual and transgender persons in Romania.
  • ILGA-Europe and partners submitted the following:
    • Members of the LGBTI community, and particularly LGBTI human rights defenders, may be at risk of hate motivated violence and other forms of discrimination in Council of Europe member states, and therefore have sound reasons for wishing to protect their privacy.
    • International and comparative precedents protect the rights to freedom of association, privacy and freedom from discrimination of members of human rights organisations.
  • The Court delivered inadmissibility decision on 24 May 2016.  

G.G. v. Turkey – Transgender rights in prison

(Application No. 10684/13), 31 March 2013 

Find Court’s communication here in French.

Find our intervention here.

Find Court's decision here. (Non-exhaustion of domestic remedies)

  • The applicant, a trans prisoner, complained of the Turkish authorities’ failure to discharge their positive obligation under Article 8 (right to private life), by refusing to cover the costs of his gender reassignment.
  • In their submission ILGA-Europe, together with TGEU, Kaos Gay Lesbian Cultural Research and Solidarity Association (Kaos GL) and Counseling Center for Transgender People (T-Der) provided information on trans issues generally, focusing on the problems of trans people in prison, and bringing out the experience in other countries of the provision of trans specific healthcare in prison. 

2012

Taddeucci and McCall v Italy – Residence permit.

(Application no. 51362/09), 18 May 2012 

Find our intervention here.

Find Court's judgement here.

  • The applicants, a same-sex couple, complained that the refusal to grant the residence sought by the second applicant for family reasons had amounted to discrimination on grounds of sexual orientation.
  • The European Court of Human Rights delivered its judgement on 30 June 2016.
  • It referred to the intervention by ILGA-Europe and partners, ICJ and NELFA (paras 74-77), especially that a number of jurisdictions around the world recognised that a same-sex couple in a long-term, committed and established relationship was in fact a “family member” regardless of whether the couple had been able to marry or otherwise obtain formal legal recognition for their relationship. The Court noted the interveners’ comparative analysis of the concept of “functional families” that sought to establish whether or not the relationship displayed certain essential characteristics and on the basis of which a number of countries had recognised unmarried same-sex couples as “families” or “de facto spouses” for the purposes of certain (economic or other) benefits. It also referred to the notion of indirect discrimination against unmarried same-sex couples: where same-sex couples could not marry, their situation should not be compared with that of unmarried opposite-sex couples but with that of married opposite-sex couples. 
  • The Court held that, by deciding to treat homosexual couples – for the purposes of granting a residence permit for family reasons – in the same way as heterosexual couples who had not regularised their situation the State infringed the applicants’ right not to be discriminated against on grounds of sexual orientation. There was accordingly a violation of Article 14 of the Convention taken in conjunction with Article 8.

X & Others v. Austria – Adoption

(Application No. 19010/07), 1 August 2012 

Find our intervention here.

Find Court's judgement here. (Violation of Article 14 of the Convention taken in conjunction with Article 8 when the applicants’ situation is compared with that of an unmarried different-sex couple in which one partner wishes to adopt the other partner’s child + award of damages)

  • The applicants were two women living in a stable relationship together with the son of one of them. They complained that they were being discriminated based on their sexual orientation. They submitted that there was no reasonable and objective justification for allowing adoption of one partner’s child by the other partner as far as heterosexual couples are concerned, while prohibiting the adoption of one partner’s child by the other partner in case of same-sex couples.
  • In their joint submissions, ILGA-Europe, together with The International Federation for Human Rights, International Commission of Jurists, British Association for Adoption and Fostering, Network of European LGBT Families Associations and The European Commission on Sexual Orientation Law argued that t it is clearly in the best interests of children being raised by unmarried same-sex couples that they enjoy the same possibility, as children being raised by unmarried different-sex couples, of establishing a legal relationship with the two adults who are raising them.
  • The European Court of Human Rights delivered its judgement on 19 February 2013.
  • In its judgement, the Court referred to the third party intervention by ILGA-Europe and partners (paras 78-80), particularly the demonstration that there is no reasons why a child should not be raised by a lesbian or gay individual living with a same-sex partner and that Articles 14 and 8 prohibit member States from extending the right to adopt to one group but not to another on discriminatory grounds.
  • The Court held that the Government had failed to adduce particularly weighty and convincing reasons to show that excluding second-parent adoption in a same-sex couple, while allowing that possibility in an unmarried different-sex couple, was necessary for the protection of the family in the traditional sense or for the protection of the interests of the child. The distinction was therefore incompatible with the Convention and amounted to a violation of Article 14 taken in conjunction with Article 8.

2011

Gas & Dubois v. France – Adoption.

(Application No. 25951/07), 21 February 2011 

Find our intervention here.

Find our oral submission here.

Find Court's judgement here. (No violation of Article 14 of the Convention taken in conjunction with Article 8)

  • The applicants, a same-sex couple who entered into a civil partnership agreement in 2002, alleged that they had been subjected to discriminatory treatment based on their sexual orientation. One of them gave birth in France in 2000 to a daughter conceived in Belgium via anonymous donor insemination. The child had lived all her life in the applicants’ shared home. However, the French authorities rejected their application for simple-adoption.
  • ILGA-Europe, together with FIDH, ICJ, BAAF and NELFA made oral and written submissions.
  • The interveners drew the attention of the Court to the importance of taking into account the best interests of children in having two legal parents rather than one.
  • In their oral submission, they stressed that the strongest and most persistent prejudice against the lesbian and gay minority in Europe is that they represent a threat to the welfare of children, as reflected in decisions of national courts denying lesbian women and gay men custody of their own children, or the possibility of adopting a child as an unmarried individual.
  • The European Court of Human Rights delivered its judgement on 15 March 2012.
  • The Court referred to the submission and in particular the categorisation of situations in which lesbian or gay individuals adopt children. It also noted the interveners’ finding of a growing consensus that, where a child was being raised within a stable same-sex couple, legal recognition of the second parent’s status promoted the child’s welfare and the rotection of his or her best interests (paras 53 to 57).  However, if found no evidence of a  difference in treatment based on the applicants’ sexual orientation, as  opposite-sex couples who had entered into a civil partnership were likewise prohibited from obtaining a simple adoption order.

Ladele and McFarlane v. UK – Refusal to provide services.

(Application nos 51671/10 and 36516/10), September 2011 

Find our intervention here.

Find Court's judgement here.

  • In both cases the issue is the denial of services to members of the public because of their sexual orientation by a religiously-motivated individual. Ms Ladele, a marriage registrar, and Mr McFarlane, a relationship counsellor, refused to respectively carry out civil partnerships and counselling for same-sex couples, due to their Christian beliefs. Disciplinary sanctions were taken against them by their employers.
  • Professor Robert Wintemute on behalf of ILGA-Europe, the International Commission of Jurists, and FIDH submitted the following:
    • Individuals providing good or services are not entitled to accommodation of their religious beliefs where they require that they exclude segments of society on the basis of personal identity characteristics such as sexual orientation. The right to manifest one’s religion is not absolute and may be circumscribed in the name of compelling objectives. Protecting the right of others to be free from discrimination is a legitimate limitation on the right to manifest one’s religion in the public sphere. It is necessary in a democratic society because the elimination of discrimination based on sexual orientation corresponds to a pressing social need.
    • This analysis is borne out by national law and practice which commonly deny such exemption to ensure the equal provision of goods and services to people regardless of sexual orientation.
  • The European Court of Human Rights delivered its judgement in 15 January 2013.
  • Following the same approach as interveners above, the Court held that there was no violation by the State of the applicants’ right to freedom of religion (Article 9 of the Convention). Its reasoning focused on the importance of balancing the right to freedom of religion with the public interest in providing non-discriminatory services and ‘ensuring that members of the public, regardless of their sexual orientation, are treated with dignity and have equal access to services.’

Vallianatos & Mylonas v. Greece, C.S. & Others v. Greece – Civil unions

(Applications Nos. 29381/09 & 32684/09), 20 June 2011 

Find our intervention here.

Find Court's judgement here. (Violation of Article 14)

  • The applicants alleged that the fact that the civil unions were designed only for couples composed of different-sex adults infringed their right to respect for their private and family life and amounted to unjustified discrimination between different-sex and same-sex couples.
  • ILGA-Europe, together with the International Commission of Jurists, the International Federation for Human Rights and the AIRE Centre submitted the following:
    • According to the case-law of the ECtHR and national constitutional courts, a strong justification is required when the ground for a distinction is sex or sexual orientation. A growing number of national courts, both in Europe and elsewhere, also required that unmarried different-sex and same-sex couples be treated in the same way and a large number of Council of Europe member States have enacted legislation recognising same-sex relationships.
    • The case of Greece was unique, as it was the only European country to have introduced civil unions while excluding same-sex couples from their scope of application.
  • The European Court of Human Rights delivered its judgement on 7 November 2013.
  • The Court referred to the interveners’ analysis of its own case-law and of national constitutional courts (para 69). The Court considered that the Government had not offered convincing and weighty reasons capable of justifying the exclusion of same-sex couples from civil unions. Accordingly, it found a violation of Article 14 of the Convention taken in conjunction with Article 8.

2010

Genderdoc-M v Moldova – Ban on demonstration / Freedom of assembly of LGBT associations.

(Application no. 9106/06), June 2010 

Find our intervention here.

Find Court's judgement here. (Violation of Article 14 in conjunction with Article 11 + award of damages)

  • The applicant association - whose aim is to provide information and to assist the LGBT community in Moldova - complained that the ban imposed on it on holding a demonstration constituted a violation of its right to peaceful assembly. The Government alleged that the refusal was based on “public order” and “public morality.
  • ILGA-Europe together with the International Commission of Jurists submitted the following:
    • Public morality and public disorder are misused to justify interferences with the rights of LGBT individuals. The requirements of democratic societies are such that public morality and related prevention of disorder grounds must be narrowly construed and applied.
    • The Court has emphasized the importance of freedom of association for minorities, which include people of diverse sexual orientations and gender identities.
  • The European Court of Human Rights delivered its judgement on 12 June 2012.
  • The Court referred to the interveners’ submission that the protection of morals is not and can never be an objective and reasonable justification under Article 14 of the Convention. It reiterated that sexual orientation is a concept covered by Article 14. It considered that the reason for the ban imposed on the event proposed by the applicant was the authorities’ disapproval of demonstrations which they considered to promote homosexuality. When limiting the right of assembly, national authorities should offer clear reasons for so doing. However each authority which dealt with the applicant association’s request to hold a demonstration rejected it for a different reason. In view of the above, the Court held that there had been a violation of Article 14 in conjunction with Article 11 of the Convention.

2009

Stéphane Chapin & Bertrand Charpentier v. France – Same-sex marriage

(Application No. 40183/07), 27 October 2009 

Find our intervention here.

Find Court's judgement here in French.

  • The applicants, a same-sex couple, complained that the French authorities’ refusal to allow them to contract marriage violated Article 12 and 14 of the Convention.
  • ILGA-Europe, together with FIDH, ICJ and AIRE Centre submitted the following:
    • There is need for guidance on whether "family life" in Art. 8 should be interpreted as including same-sex couples. According to the interveners Karner v. Austria implies that same-sex couples (without children) enjoy "family life". Furthermore, national courts in European and other democratic societies have treated unmarried same-sex couples (without children) as families.
    • The interveners also submitted that if the European Convention does not yet require equal access to legal marriage for same-sex couples, it is indirect discrimination based on sexual orientation to limit a particular right or benefit to married different-sex couples, but provide no means to qualify for same-sex couples. There also is a growing consensus in European and other democratic societies that same-sex couples must be provided with some means of qualifying for rights or benefits attached to marriage.
  • The European Court of Human Rights delivered its judgement on 9 June 2016.
  • It reiterated its findings in the case of Schalk & Kopf v Austria that Article 12 of the Convention does not impose an obligation on the respondent Government to grant a same-sex couple access to marriage.

2008

M.W. v. United Kingdom – Social security rights

(Application No. 11313/02), 5 November 2008 

Find our intervention here.

Find Court's judgement here. (Complaint rejected as manifestly ill-founded)

  • The applicant complained that, as a survivor of a same-sex couple who had had no means to achieve formal recognition of their relationship, he had been denied a benefit available to a survivor of a married couple.
  • ILGA-Europe, together with FIDH, ICJ and AIRE Centre, submitted the following:
    • If the European Convention does not yet require equal access to legal marriage for same-sex couples, it is indirect discrimination based on sexual orientation to limit a particular right or benefit to married different-sex couples, but provide no means for same-sex couples to qualify. There is a growing consensus in European and other democratic societies that same-sex couples must be provided with some means of qualifying for rights or benefits attached to marriage.
    • The right to equal treatment requires that the State find alternative means to allow the survivor of a same-sex couple to receive Bereavement Payment. The adoption of the Civil Partnership Act should be seen as confirming that the previous situation, in which same-sex couples had no means of achieving official recognition of their relationship, was discriminatory.

2007

Schalk & Kopf v Austria – Same-sex marriage

(Application No. 30141/04), 26 June 2007 

Find our intervention here.

Find our oral submission here.

Find Court's judgement here.

  • The applicants, a same-sex couple, complained that the authorities’ refusal to allow them to contract marriage violated Article 12 of the Convention.
  • ILGA-Europe, together with FIDH, ICJ and AIRE Centre submitted the following:
    • There is a need for guidance on whether "family life" in Art. 8 should be interpreted as including same-sex couples. They consider that Karner v. Austria (2003) implies that same-sex couples (without children) enjoy "family life". Furthermore, national courts in European and other democratic societies have treated unmarried same-sex couples (without children) as families.
    • If the European Convention does not yet require equal access to legal marriage for same-sex couples, it is indirect discrimination based on sexual orientation to limit a particular right or benefit to married different-sex couples, but provide no means for same-sex couples to qualify. There also is a growing consensus in European and other democratic societies that same-sex couples must be provided with some means of qualifying for rights or benefits attached to marriage.
  • The European Court of Human Rights delivered its judgment on 24 June 2010.
  • The Court considered that Article 12 does not impose an obligation on the respondent Government to grant a same-sex couple such access to marriage (para 63). However, the case is important because the Court held that the relationship of the applicants, a cohabiting same-sex couple living in a stable de facto partnership, falls within the notion of “family life”, just as the relationship of a different-sex couple in the same situation would (paras 94-95). Further, the Court observed that legislation gave the applicants a possibility to obtain a legal status equal or similar to marriage in many respects. 

2005

E.B. v. France – Individual adoption

(Application No. 43546/02)¸ 3 June 2005 

Find our intervention here.

Find Court's judgement here. (Violation of Article 14 of the Convention taken in conjunction with Article 8 + award of damages)

  • The applicant, an unmarried lesbian woman, was excluded from the possibility of adopting a child. She alleged that she had suffered discriminatory treatment based on her sexual orientation which had interfered with her right to respect for her private life (Articles 14 and 8).
  • ILGA-Europe, together with FIDH, BAAF and APGL submitted the following:
    • Requiring governments to provide objective scientific evidence to justify a difference in treatment is essential to protect a minority against discrimination, because it ensures that the difference in treatment does not reflect a social prejudice against the minority.
    • The most deep-seated and harmful social prejudice against lesbian and gay individuals is that they cannot be trusted to care for children. All reputable scientific studies have shown that the children of lesbian and gay parents are not more likely to suffer from emotional or other problems than the children of heterosexual parents.
    • As long as the opportunity of applying to adopt a child as an unmarried individual exists in France for heterosexual individuals (whether or not they are living with a different-sex partner), Articles 14 and 8 ECHR do not permit French administrative officials and courts to exclude openly lesbian and gay individuals (whether or not they are living with a same-sex partner), solely because of their sexual orientations.
  • The European Court of Human Rights delivered its judgment on 22 January 2008.
  • In the Court's view, the applicant's avowed homosexuality was a decisive factor leading to the decision to refuse her authorisation to adopt. The domestic authorities made a distinction based on considerations regarding her sexual orientation, a distinction which is not acceptable under the Convention. Accordingly, there has been a breach of Article 14 of the Convention taken in conjunction with Article 8.

2002

Siegmund Karner v. Austria - Tenancy for surviving same-sex partner

(Application No. 40016/98), 12 March 2002 

Find our intervention here.

Find Court's judgement here. (Violation of Article 14 of the Convention taken in conjunction with Article 8)

  • The applicant claimed to have been a victim of discrimination on the ground of his sexual orientation in that he was denied the status of “life companion” of the late Mr W., thereby preventing him from succeeding to Mr W.'s tenancy.
  • ILGA-Europe, together with Liberty and Stonewall, submitted the following:
    • There is a sufficiently broad European consensus that unmarried same-sex partners (with or without children) enjoy “family life” in the same way as unmarried different-sex partners (with or without children).
    • This requires that, where an unmarried different-sex partner qualifies to succeed to the tenancy of an apartment or house after the death of their partner (the legal tenant), an unmarried same-sex partner must receive the same protection against having the loss of their partner, and the trauma of bereavement, compounded by the hardship of suddenly losing their home.
  • The European Court of Human Rights delivered its judgment in 2003.
  • The Court recognised that the subject matter of the application involved an important question of general interest not only for Austria but also for other States Parties to the Convention. In this connection the Court referred to the submissions made by ILGA-Europe, Liberty and Stonewall, whose intervention in the proceedings as third parties was authorised as it highlighted the general importance of the issue (para 27). The Court reiterated that differences based on sexual orientation require particularly serious reasons by way of justification. It found that the Government had not offered convincing and weighty reasons justifying the discriminatory treatment against the partner of the same sex, which thus constituted a violation of Article 14 of the Convention taken in conjunction with Article 8.


2000

Philippe Fretté v. France – Adoption.

(Application No. 36515/97), 15 June 2000 

Find our intervention here.

Find Court's judgement here.

  • The applicant alleged that the rejection of his application for authorisation to adopt was implicitly based on his sexual orientation alone.
  • ILGA-Europe submitted the following:
    • By denying Mr. Fretté an "approval as eligible" to adopt a child as an unmarried gay male individual, when it would have been granted had the authorities believed he was an unmarried heterosexual male individual, France discriminated against him on the ground of his sexual orientation.
    • The Court should require "very weighty reasons" to justify a difference in treatment based solely on sexual orientation. Besides, there is no scientific evidence that lesbian and gay parents pose any "psychological danger" to children. The absolute exclusion of lesbian and gay persons is grossly disproportionate, and is not in the best interests of children needing adoptive parents.
  • The European Court of Human Rights delivered its judgment on 26 February 2002.
  • The Court conceded that the reason given by the French administrative and judicial authorities for their decision was the applicant's “choice of lifestyle”. However, that criterion implicitly yet undeniably made the applicant's homosexuality the decisive factor. The Court considered that the scientific community was still divided over the possible consequences of a child being adopted by one or more homosexual parents. The national authorities were entitled to consider that the right to be able to adopt on which the applicant relied was limited by the interests of children eligible for adoption. The justification given by the Government was enough to consider that the difference in treatment complained of was not discriminatory within the meaning of Article 14 of the Convention.
  • It has to be noted that the Court changed its approached in the case of Karner v. Austria, in which ILGA-Europe intervened. 

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