European judgments look to address anti-gay discrimination

An asylum seeker cannot be expected to conceal his homosexuality in his country of origin to avoid persecution, court rules

Hand in hand: ECHR judgments bolster moves towards equal access to human rights here. photograph: getty

Hand in hand: ECHR judgments bolster moves towards equal access to human rights here. photograph: getty

Mon, Dec 2, 2013, 01:03

The Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECHR) have been at the vanguard of the extension of human rights for gay and lesbian people across Europe since the 1970s. They have pushed reluctant member states of the European Union and the Council of Europe towards the goal of equality.

Three new judgments, delivered this month, again attempt to address what can be deeply-rooted discrimination experienced by this sector of society.

In the ECHR judgment Valliantos and Others v Greece, the court found the exclusion of same-sex couples in Greece from registering a civil union, an option available to heterosexual unmarried couples, violated rights protected by article 14 in conjunction with article eight of the European Convention on Human Rights.

Separately, in EB and Others v Austria, the ECHR considered a refusal by Austria to delete the criminal records of four men found guilty of homosexual acts with consenting adolescents under 18 after the legislation on which the convictions were based was deemed unconstitutional. The court found the four men had been discriminated against.

Though neither of the ECHR judgments has a direct impact in Ireland, they contribute to a growing body of rulings in the area that helps to bolster moves towards equal access to fundamental human rights for all citizens.

Impact on Ireland
In terms of impact on Ireland, though, the CJEU judgment involving the asylum process is more important.

In X, Y and Z v Minister voor Immigratie en Asiel, the Netherlands asked the court to clarify existing EU law on asylum seekers. Three individuals from Sierra Leone, Uganda and Senegal had sought refugee status in the Netherlands. They claimed they were fearful of being persecuted in their home countries because they were homosexual. All three of the countries involved had made homosexual acts a criminal offence with punishments ranging from heavy fines to imprisonment.

The Netherlands court asked the CJEU if, under a European directive on qualification for asylum status, which draws on the UN’s 1951 Convention Relating to the Status of Refugees, applicants who were homosexuals could be regarded as forming a “particular social group” as described under the directive and convention. It also asked how countries should assess what constitutes an act of persecution against homosexual activities, and whether criminalisation amounted to persecution.

Fundamental to identity
The court said a person’s sexual orientation was a characteristic so fundamental to his identity that he should not be forced to renounce it. It also found that if criminal laws targeted homosexuals in a country it meant they formed a separate group in society perceived as being different in that country and could therefore be treated as “a particular social group”.

But, the court said, to constitute persecution a violation of human rights must be “sufficiently serious” and not all violations of rights would reach that level of seriousness. The mere existence of criminalising legislation for homosexual acts was not enough; but a term of imprisonment or other punishments, provided that a country actually applied them, could constitute persecution.

The court said where an asylum seeker made an application on the basis of being at risk of persecution in his or her home country because of sexual orientation, the authorities in the country receiving the application must examine the laws and regulations of the applicant’s home country and how they were applied.

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