X. v. Turkey: Why a Ruling on the Basis of Discriminatory Effects Would Have Been Preferable

A few weeks ago, the European Court of Human Rights released its judgment in X. v. Turkey. The case concerned a homosexual detainee who was put in an individual cell and under a very restrictive detention regime, after he complained about intimidation and harassment by heterosexual detainees with whom he shared a collective cell. On the ECHR Blog, our fellow academic and blogger Antoine Buyse heralded the judgment as “an important development in the Court’s case-law”: “[f]or the first time in its existence, the European Court of Human Rights found that a complaint related to sexual orientation discrimination yielded a violation of Article 3 ECHR.”

Inspired by the recent posts by Alexandra on “what constitutes racial discrimination?” and by Lourdes on “who should provide which standard of proof?”, I will argue that the Court should have gone beyond the formal approach to discrimination it displayed in X. v. Turkey. Rather than searching for discriminatory intent and motives, the Court should have primarily looked at discriminatory effects. I believe that a reasoning on the basis of discriminatory effects would have provided firmer ground to the Court’s finding of a violation of art. 14 juncto art. 3 ECHR. It would also have countered the – prima facie sensible – dissent of Judge Jočienė to the majority ruling.

Facts

The applicant in X. v. Turkey is homosexual. After he confessed to having committed a number of non-violent crimes (mostly fraud related), he was placed in provisional detention. Initially, he shared a cell with other detainees. Because he was intimidated and harassed by heterosexual detainees in his cell, who had learned of his sexual orientation, the applicant requested to be transferred to a different collective cell, one in which also other homosexual detainees were held. From the information provided in the judgment it is unclear whether such cells effectively existed (and if so, whether the domestic authorities could or should have known that there were homosexual detainees in other collective cells).

Although the applicant had explicitly requested to be transferred to a collective cell, the detention authorities responded to his complaint by placing him in a small individual cell, under a regime similar to that of solitary confinement (7m² of space; badly lit; very dirty; with rats; without access to other detainees; without access to social activities; without any walks in open air). From the outset, the applicant opposed his detention in the individual cell. He repeatedly requested to be transferred (back) to a collective cell and demanded to be treated on equal footing with the other detainees. However, the domestic courts refused to intervene. The judge responsible for the execution of sentences decided not to rule on the merits of the applicant’s case, holding, inter alia, that “it has been established that the interested party is being held, as a preventive measure, in an individual cell because the State cannot take any risk that a transvestite would be lynched [in a penitentiary institution]. (my translation)”.

Judgment and comment

In its judgment, the Court first ruled that the applicant’s detention in an individual cell, under conditions that were stricter than in most cases of solitary confinement and without access to an effective remedy to contest those conditions, constituted inhuman and degrading treatment in violation of art. 3 ECHR. The Court admitted that the authorities’ beliefs that the applicant’s physical integrity was at risk were not entirely without basis, given that the applicant himself had complained about intimidation and harassment by the other detainees in his cell. However, the Court ruled, such beliefs could not justify the concrete measure taken, i.e. total exclusion from the general population without any access to social activities or even walks in open air.

But unlike what often happens in cases with a (potential) element of discrimination, the Court did not stop there. Instead, it also ruled under and found a violation of art. 14 juncto art. 3 ECHR. Although I agree with the outcome of the judgment, I believe it would have been preferable to reach that conclusion through a reasoning based on discriminatory effects, rather than the reasoning displayed by the Court in its majority ruling.

In that ruling, the Court searched primarily for discriminatory motives and intent. That it would focus on such a search became clear when it held that “the authorities were under an obligation to take all possible measures to investigate whether a discriminatory attitude could have played a role in the total exclusion of the applicant from general population. (my translation; emphasis added)”. In answering the question it had just raised, the Court in my opinion then took a misstep by mixing up the general security risk faced by the applicant with the specific measures taken by the authorities to prevent that risk from materialising. The Court thus held that

the penitentiary authorities have not in any way adequately examined the security risk faced by the applicant. Based on the applicant’s sexual orientation, they believed that the applicant risked a grave attack on his physical integrity. (my translation)

It was only “in addition” (de surcroît) that the measure of total exclusion of the applicant could “under no circumstances” (en aucun cas) be justified.

Although the Court had up to that point been very careful to not mix both issues – the security risk, which the applicant himself had claimed to face, and the specific measure taken, one of total exclusion – it ended up conflating them in its search for discriminatory intent and motives. It was only by denying that the authorities were really concerned about the applicant’s safety that the Court could establish that

the sexual orientation of the applicant had been the primary reason for the adoption of [the measure of total exclusion from the general population]. (my translation)

This is quite a leap to make, but it was – under the Court’s chosen approach – necessary to rule that the applicant had been discriminated on the basis of his sexual orientation.

However, given that the applicant himself had cited security concerns, it is somewhat understandable that Judge Jočienė dissented in strong terms:

I do not see any element that allows for the finding that the applicant’s total exclusion from the general population had been decided because of his sexual orientation. In my opinion, this conclusion of the Chamber is without factual basis; I would even say that no discriminatory intention on the part of the authorities can be established in this case. (my translation)

Indeed, it appears difficult to establish discriminatory intent and motives on the basis of the authorities’ actions in X. v. Turkey. Given that the applicant himself had requested measures for his safety, even the argument by a national judge that “the State cannot take any risk that a transvestite would be lynched”, seems insufficient to – in and of itself – establish intent or motive.

In my opinion, X. v. Turkey would have been the perfect case for the Court to focus firstly on discriminatory effects and only secondarily on discriminatory attitudes, intent and motives. It is clear from the facts of the case that the authorities, instead of granting the applicant what he had requested, imposed measures on him that are worse than those imposed in many cases of solitary confinement. X. v. Turkey is thus, as Antoine Buyse also pointed out on his blog, the exemplary case of a victim being punished. Rather than protecting the applicant from discriminatory attitudes and behaviour by other detainees (a reference to Smith and Grady v. the United Kingdom, § 97 is available here), the authorities decided to take the easy way out. Rather than taking measures against the (potential) perpetrators, they punished the victim. Even if it is, in my opinion, not possible to prove any discriminatory intent or motives on the part of the Turkish authorities in X. v. Turkey, it is clear that they displayed an utter disregard for the effects their chosen measures would have on the applicant. The finding that the applicant suffered from these effects because of his sexual orientation – definitely when, in secondary order, coupled with the suspicious reference to the “lynching” of a “transvestite” – should have sufficed to find a violation of art. 14 juncto art. 3. With such a finding, I imagine, Judge Jočienė would have much less reason to dissent. Because an analysis on the basis of established discriminatory effects, instead of insufficiently proven intent or motives, would have provided a much more solid basis for the finding of a violation.