JURIST Guest Columnist Paul Johnson, Anniversary Reader at the University of York, argues that the European Court of Human Right’s recent decision in X. v. Turkey helps to advance the rights of gays and lesbians in Europe…
On October 9, 2012, the European Court of Human Rights (court) issued an extremely significant judgment in respect of gay and lesbian human rights. In X. v. Turkey [French], the second section of the court upheld a complaint by a gay man about treatment he suffered whilst in detention and found that it violated his rights under Articles III and XIV of the European Convention on Human Rights (ECHR). The judgment is important because it is the first time in its history that the court has upheld a complaint related to sexual orientation under Article III of the ECHR. For this reason, the judgment should be regarded as a critical evolution of the court’s jurisprudence on sexual orientation.
Article III of the ECHR provides that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Unlike other human rights protected by the ECHR, Article III is an unqualified right. In Ireland v. The United Kingdom, for instance, the court stated:
The ECHR prohibits in absolute terms torture and inhuman and degrading treatment or punishment, irrespective of the victim’s conduct. Unlike most of the substantive clauses of the ECHR and of Protocols Nos. 1 and 4, Article III makes no provision for exceptions and, under Article 15(2), there can be no derogation therefore even in the event of a public emergency threatening the life of the nation.
One might expect that, given the spectrum of actions which the court recognizes to fall within the ambit of Article III — which range from the infliction of bodily harm to the gross humiliation of individuals — this aspect of the ECHR would have provided a means to advance successful complaints in respect of sexual orientation. Yet, whilst homosexuals have been making Article III claims since 1955 about imprisonment on the grounds of sexual orientation, physical abuse whilst in confinement and forms of verbal abuse in various social contexts, it is astonishing that the court has never previously deemed such treatment to be in violation of Article III. I have argued elsewhere that the systematic failure of the court to recognize that homophobic treatment constitutes degradation contrary to Article III produces a fundamental gap in the protection available to gay men and lesbians under the ECHR. A consequence of this is that the court’s jurisprudence has failed to condemn various forms of hostility that are directed towards homosexuals in contemporary Europe. Because the court has refused to recognize that forms of discrimination on the grounds of sexual orientation are often in violation of Article III, it has failed to address such discrimination with one of the most powerful and weighty provisions of the ECHR.
Article XIV of the ECHR provides that:
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
Article XIV “complements the other substantive provisions of the Convention” and prohibits discrimination in respect of the rights and freedoms guaranteed by the ECHR. The court has repeatedly stated that Article XIV is not an autonomous provision but has effect only in relation to other ECHR rights. Although the court has determined that the application of Article XIV does not presuppose a violation of another aspect of the ECHR, there is no room for its use unless the facts of the complaint fall within the ambit of one or more of the other substantive provisions.
The court’s approach to Article XIV in respect of sexual orientation has evolved over time. In earlier judgments relating to sexual orientation, the court would not consider an Article XIV complaint once it had found a violation of another substantive provision. In Smith and Grady v. the United Kingdom, for example, which involved a complaint about dismissal from the armed services on the basis of sexual orientation, the court found in favor of the applicants’ Article VIII (right to respect for private life) complaint but would not consider their Article XIV complaint because it “amounts in effect to the same complaint, albeit seen from a different angle.” More recently, however, the court has issued judgments in respect of Article XIV complaints in addition to other aspects of the Convention. In Alekseyev. Russia, for example, the court held that the refusal to grant the applicant a permit to assemble in public for the purpose of holding a “gay pride” demonstration violated his Article XI (right to freedom of assembly and association) rights and his Article XIV rights taken in conjunction with Article XI. This has been an important development because the court now explicitly recognizes that discrimination based solely on sexual orientation is the basis for interferences by public authorities with the Convention rights of homosexuals.
X. v Turkey: Facts and Complaint
The applicant in X. v. Turkey is a 23-year-old gay man currently serving prison sentences for a range of offenses related to fraud. Soon after being detained in 2008 whilst on remand, the applicant requested that he be removed from a cell he shared with heterosexual inmates because of intimidation and harassment in respect to his sexual orientation. Despite the applicant’s request to be moved to a shared cell with other homosexual inmates, prison authorities placed him in a single cell. The cell in which the applicant was housed was seven square meters in size, furnished with a bed and toilet but no sink, very dimly lit, dirty and populated with rats. The applicant was segregated and permitted no contact whatsoever with other prisoners. The applicant complained that the cell in which he was placed was designed for the punishment of violent inmates necessitating solitary confinement and requested that he be moved to a standard cell and treated in an equal way to other prisoners. The prison authorities argued that the applicant’s solitary confinement was a necessary measure designed to prevent violence against him by other inmates.
The applicant made a series of unsuccessful appeals against his treatment to the public prosecutor’s office and the post-sentencing judge, arguing that his solitary confinement had resulted in a deterioration of his mental and physical health. The consequence of one appeal by the applicant was his transfer to a psychiatric hospital for assessment of his mental state. A medical report was prepared by three psychiatrists which stated that the applicant suffered from homosexual identity disorder and showed symptoms consistent with reactive depression. The report concluded that the applicant’s symptoms could be treated in detention and he was returned to prison. Upon his return to prison the applicant alleged that he was subject to homophobic conduct, insults and physical attacks from a warder but he subsequently withdrew his complaint.
A key aspect of the applicant’s complaint to the court was that he had been placed in solitary confinement for more than 13 months solely on the basis of his sexual orientation. He argued that such confinement had resulted in irreparable and irreversible effects on his mental and physical health. He claimed that the treatment he suffered violated his rights under Article III and, because it was a consequence of his sexual orientation, also his rights under Article XIV. The Turkish government argued that the conditions of the applicant’s detention did not amount to inhuman or degrading treatment contrary to Article III because they were below the minimum level of severity prohibited by the ECHR. Furthermore, the government argued that the treatment did not contravene the applicant’s Article XIV rights because his solitary confinement was the result of measures taken to protect him from acts of intimidation and harassment from heterosexual inmates. The government claimed that prison authorities had decided to keep the applicant in solitary confinement until such time as he could be placed with another homosexual prisoner.
The Court’s Judgment
In considering the applicant’s Article III complaint, the court recalled its previous jurisprudence on detention. The court has interpreted Article III to require contracting states to ensure that detained persons are held in conditions which are compatible with respect for human dignity and do not subject them to distress or hardship beyond that which is an unavoidably inherent feature of detention. Furthermore, the court requires, as far as possible within the practical demands of imprisonment, that the health and well-being of inmates is maintained. The court observed that the applicant had been held in relative social isolation in a way that was more stringent than for inmates serving sentences for violent crime. The court stated that the total ban on outdoor access, which lasted throughout the applicant’s detention in solitary confinement, as well as his inability to come into contact with other prisoners was illustrative of “exceptional conditions” in the prison regime. The court noted the concerns of the prison authorities regarding the potential threat to the applicant from other inmates and stated that these concerns could not be regarded as unfounded since the applicant himself had alerted the authorities to the threat. Nevertheless, the court stated that even if these concerns necessitated certain security measures to protect the applicant they were not sufficient to justify his total exclusion from the prison community. The court stated that the effects of solitary confinement upon the applicant were particularly serious and had led to significant physical and psychological suffering. The court held that, because the applicant’s conditions of detention in solitary confinement caused him serious mental and physical suffering, as well as adversely affecting his dignity, he had been the victim of “inhuman and degrading” treatment as laid out in Article III of the ECHR.
In respect of the applicant’s Article XIV complaint, the court recalled from its earlier jurisprudence that for a state to defend an impugned distinction as non-discriminatory it must be established that there is an objective and reasonable justification for it. This means that a state must show that a difference in treatment pursues a “legitimate aim” or that there is a “reasonable proportionality between the means employed and the aim sought to be realised.” In Kozak v. Poland the court stated:
[W]hen the distinction in question operates in this intimate and vulnerable sphere of an individual’s private life, particularly weighty reasons need to be advanced before the court to justify the measure complained of. Where a difference of treatment is based on sex or sexual orientation the margin of appreciation afforded to the State is narrow and in such situations the principle of proportionality does not merely require that the measure chosen is in general suited for realising the aim sought but it must also be shown that it was necessary in the circumstances. Indeed, if the reasons advanced for a difference in treatment were based solely on the applicant’s sexual orientation, this would amount to discrimination under the Convention.
The court stated that, although the prison authorities had legitimate concerns about potential threats to the applicant’s integrity, these threats were not sufficient to justify the measure of total excluding him from the prison community. The court held that, on the contrary, the actions of the prison authorities showed that no proper risk assessment had taken place (which reveals an absence of an assessment of the proportionality of the means employed to address the aim sought). The court concluded that it was:
[N]ot convinced that the need to take security measures to protect the physical integrity of the applicant was the overriding reason for [his] total exclusion […] from prison life. [Rather], the applicant’s sexual orientation was the main reason for the adoption of this measure.
In rejecting the justifications offered by the government, the court found that the treatment suffered by the applicant, based solely on his sexual orientation, amounted to discrimination under Article XIV of the ECHR.
A Significant Evolution in Gay and Lesbian Human Rights
Article III protects individuals from the most serious abuses of their physical, mental and moral integrity. In contemporary European societies, where homosexuals continue to be subjected to wide-ranging forms of discriminatory treatment, the judgment in X. v. Turkey fills a fundamental gap in the court’s jurisprudence. The court has now formally recognized that gay men and lesbians are subject to treatment that humiliates and debases them in ways that risks breaking their physical and moral resistance. The UN has recently acknowledged [PDF] that:
[M]embers of sexual minorities are disproportionately subjected to torture and other forms of ill-treatment because they fail to conform to socially constructed gender expectations. Indeed, discrimination on grounds of sexual orientation or gender identity may often contribute to the process of the dehumanization of the victim, which is often a necessary condition for torture and ill-treatment to take place.
In X. v. Turkey, the court has finally acknowledged that social discrimination on the basis of sexual orientation underpins forms of ill treatment that impair the rights guaranteed by Article III. By recognizing the applicant’s Article XIV complaint, the court has recognized that men and women in detention suffer serious forms of discriminatory treatment on the basis of their sexual orientation. It is hoped that this is a first step in an evolution of the court’s jurisprudence that will progressively recognize how the widespread social discrimination experienced by homosexuals underpins a range of inhuman and degrading treatment.
If such an evolution were to take place the court may come to recognize that discrimination on the grounds of sexual orientation, contrary to Article XIV, often impacts on individuals in ways that impairs their Article III rights. For instance, every time a public official refers to homosexuality as a disease, claims that homosexuals are not fit to be parents or draws parallels between homosexuality and child sexual abuse, they degrade gay men and lesbians in ways that violate Article III. Furthermore, when homosexuals are denied access to goods and services on the basis of their sexual orientation, prevented from assembling and associating in public or dismissed from their jobs, they experience degradation contrary to Article III. Such degradation cultivates and sustains the social stigma of homosexuality and produces detrimental physical and mental affects upon individuals. The key to evolving the court’s jurisprudence in this area depends, therefore, on the court recognizing that the commonplace homophobia endemic in many contracting states routinely violates the right to be free from degrading treatment guaranteed by Article III. X. v. Turkey is a significant step in the right direction.
Paul Johnson is Anniversary Reader in Sociology at the University of York, UK. His most recent book is Homosexuality and the European Court of Human Rights (Routledge, 2012).
Suggested citation: Paul Johnson, The Impact of X. v. Turkey, JURIST – Hotline, October 9, 2012, http://jurist.org/hotline/2012/10/paul-johnson-echr-turkey.php.
This article was prepared for publication by Stephanie Kogut, an associate editor with JURIST’s professional commentary service. Please direct any questions or comments to him/her at firstname.lastname@example.org