The 9th October 2012 the European Court of Human Rights issued an important ruling for what concerns gay and lesbian human rights. The case X v. Turkey had begun when a Turkish individual had brought a complaint concerning the conditions in which he was detained in a Turkish prison: the man in question, a homosexual, had been threatened by other inmates who knew about his sexual orientation and transferred to another cell in considerably worse conditions. Confined in a small cell infested by rats and prevented from moving outside even for breathing some fresh air, the individual in question argued that the Turkish authorities had violated Articles 3 and 14 of the European Convention on Human Rights.
Article 3, which is an absolute right, bans torture and inhumane or degrading treatment. Previously the Court had refused to recognize homophobic treatment as violating Art. 3 and this, argues the University of York professor Johnson, has been a major gap in the protection that the ECHR could afford to gay and lesbian rights. The other involved article, Article 14, provides that the enjoyment of the Convention’s rights shall be secured without discrimination on every ground. Previously the Court had preferred to use other articles when ruling on cases involving gay or lesbian individuals: in Smith and Grady v. United Kingdom, involving the don’t ask don’t tell policy of the British Army, the ECHR based itself on Art 8 on the right to privacy rather than Art 14. Something similar had happened in the Alekseyev v Russia cased, in which Art 11 on the freedom of assembly was used rather than making explicit reference to discrimination based on sexual orientation.
With its ruling the Court officially recognized the homophobic treatment to which gay and lesbian individuals are subject may humiliate them in a way that risks breaking their physical and moral resistance, as it happened in the case of X v. Turkey. It recognizes, in more succinct terms, that such treatments violate the third article of the European Convention on Human Rights, a fundamental and indispensable clause of the said convention. Such a reasoning could be easily expanded for example to hate speech made by state officials, or politicians. This judgement thus fits with a trend of increasing recognition by courts of human rights claims made by homosexuals. However we must not forget the scantiness of human rights law when it comes to sexual orientations: for example no explicit reference to sexuality is made in instruments such as the Universal Declaration of Human Rights, the two International Covenants or regional treaties such as the European Convention on Human Rights or the African Charter on Human and Peoples’ Rights. If the regime of human rights has its problems in what concern the rights of sexual minorities, national systems are not better: for example to this date only four states have in their respective constitutions provisions against discrimination on the basis of sexual identities.
In Europe the protection of the sexual minorities’ human rights has often fallen to the European Court of Human Rights justly because of the lack of will by many European states to uphold the rights granted to them by the current human rights regime. This is clear for example if we take the previously mentioned Alekseyev v. Russia case, in which the authorities of Moscow had moved to prohibit a gay pride in that city or Tosto v. Italy, in which a homosexual individual was barred from donating blood. If the European Court of Human Rights has often taken a stance in defence of those rights, its action has been complicated by inconsistency in the Court’s case law, which brought the Court to reject many applications in recent years. Hopefully this last sentence will make more clarity and have some consequences on the debate on gay rights which has been particularly intense in the last years.
BY: Alberto Pecoraro
Paul Johnson, The Impact of X. v. Turkey, JURIST – Hotline, October 9, 2012, http://jurist.org/hotline/2012/10/paul-johnson-echr-turkey.php.
European Court of Human Rights, 09.10.2012, AFFAIRE X c. TURQUIE (Requête no 24626/09) http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-113389
Graupner, H. 2005. Sexuality and Human Rights in Europe. Journal of Homosexuality Volume 48, Issue 3-4, 2005