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.