European Court of Human Rights orders damages for gay prisoner

by on October 16, 2012  •  In Immigration, International, Marriage, Religion
ECHR building 1

If we had to pick  the world’s most active legal forum for LGBT rights, it would be the European Court of Human Rights. Following is a summary of a decision from last week, plus three other cases in the pipeline. The Court has also published an excellent summary of its decided and pending sexual orientation-related cases; it’s definitely worth a read.

X. v. Turkey. The Court ruled in favor of the plaintiff, a Turkish prisoner incarcerated for various offenses including forgery and fraud, who was held in solitary confinement for eight months solely because of his sexual orientation. A unanimous court held that Turkey had violated Article 3 (prohibition of torture and inhuman and degrading punishment) of the European Convention on Human Rights, and a 6-1 majority found a violation of Article 14 (prohibition of discrimination) based on the plaintiff’s sexual orientation. The plaintiff was awarded damages of 18,000 Euros plus costs.

According to the ECHR’s official summary (the decision is currently available only in French), the solitary confinement under degrading conditions “had caused him mental and physical suffering, together with a feeling that he had been stripped of his dignity,” and thus violated Article 3.

Ladele v. UK & McFarlane v. UK. The court heard arguments on September 4 in these two closely watched cases, consolidated by the Court. Conservative U.S. legal groups have filed briefs in support of plaintiffs, who are  government employees claiming that their freedom of religion was violated by having to perform job duties that involved recognizing the validity of same-sex couple relationships. As a Registrar of Births, Deaths and Marriages, Ladele was disciplined when she refused to conduct civil marriage ceremonies for same-sex couples as part of her duties. McFarlane was a sex and relationship counselor who refused to provide sex therapy to same-sex couples, which led to his dismissal from service. Plaintiffs therefore allege violations of Articles 9 (freedom of religion) and 14 [(prohibition of discrimination based on religion and other factors (including, of course, sexual orientation)] of the Convention. A hearing occurred on September 4th.

X. and Others v. Austria. As we reported over the summer, this case involves adoption of a child by the non-birth mother in a domestic partnership. Although the court’s clear (and unfortunate) precedent in this case, Gas and Dubois v. France, may soon be rendered obsolete by a pending French law legalizing adoption by same-sex couples, Austrian law mirrors the current French prohibition on such adoptions. Unfortunately this similarity will make it difficult for the ECHR to rule in the plaintiff’s favor. The court heard this case on October 3rd.

Vallianatos and Others v. Greece. Coming up early next year is this civil partnership equality case from Greece (summary available in French only). Plaintiffs contend that the 2008 Greek law creating a “cohabitation pact” is discriminatory because it is only available to opposite-sex couples. A hearing before the Grand Chamber is scheduled for January 16, 2013.

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