The potential of a vulnerability-based approach: some additional reflections following O.M. v Hungary

Guest post by Denise Venturi, PhD Student in International Law, Scuola Superiore Sant’Anna (Italy) and KU Leuven (Belgium)

As has recently been noted in this blog, the case of O.M. v Hungary adds another tile to the European Court of Human Rights’ (ECtHR) mosaic on vulnerability. The present blog post seeks to start from these premises and dig further into the Court’s reasoning, to reflect on the extent to which vulnerability can be operationalised and meaningfully used in the legal reasoning and when, instead, it risks to remain confined only to a synonym for specific situations deserving attention.

As the readers of this blog may know, O.M. v Hungary concerned the detention to which a gay asylum seeker from Iran was subject while his asylum request was processed and before being granted refugee status. The detention was ordered because, allegedly, Mr. O.M. had not been able to clarify his identity and nationality; had entered irregularly; had not had any resources to live on in Hungary and there was a risk he could frustrate the procedure if left at large. The applicant claimed before the ECtHR that his detention had been unjustified with respect to Article 5(1)(b) of the European Convention on Human Rights (ECHR) and that no individual assessment had been carried out. Notably, the applicant’s sexual orientation had not been taken into consideration, although Mr. O.M. reported to fear harassment in detention because of this circumstance.

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Taddeucci and McCall v. Italy: welcome novelty in the ECtHR’s case-law on equal treatment of same-sex couples

This guest post was written by Dr. Nelleke Koffeman (*)

The Taddeucci and McCall v. Italy judgment of 30 June 2016 is a novelty in the ECtHR’s case-law on equal treatment of same-sex couples. It is the first time that the Court, in finding a violation of the prohibition of discrimination on grounds of sexual orientation (Article 14 ECHR in combination with Article 8 ECHR) in a case where stable same-sex partners do not enjoy the same rights as different-sex spouses, takes into account that those same-sex couples have no access to marriage under the relevant domestic law. It is not that the Court has never before been asked to acknowledge the (indirect) discrimination involved in such cases. Quite the opposite, but, as set out below, it has so far taken a formalistic approach in such cases. The present judgment is thus a clear – and to be welcomed – deviation from previous case-law.

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Oliari and Others v. Italy: a stepping stone towards full legal recognition of same-sex relationships in Europe

This guest post was written by Giuseppe Zago, Researcher of Comparative Sexual Orientation Law, Leiden University (*)

Last 21 July, the European Court of Human Rights (ECtHR) in Oliari and others v. Italy had once again the opportunity to analyze the status of same-sex couples wishing to marry or enter into a legally recognized partnership. This resulted in a groundbreaking judgment, with the Court asserting that the absence of a legal framework recognizing homosexual relationships violates the right to respect for private and family life, as provided by the European Convention of Human Rights (ECHR) in article 8.

Its relevance is twofold, as the Court poignantly plunges into the current legal situation of Italy, and at the same time builds up on the outcomes of its previous cases, Shalk and Kopf v. Austria and Vallianatos and others v. Greece, to slightly, yet significantly, extend the interpretation of the ECHR principles concerning same-sex individuals who enter stable intimate relationships.

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The Y.Y. v. Turkey case and trans individuals’ gender recognition

This guest post was written by Ivana Isailovic, post-doc researcher at the Perelman Center (Université libre de Bruxelles) and affiliated to the IAP, Human Rights Integration project.[1]

The Y.Y v. Turkey decision deals with the process of gender recognition, which is one of the many pressing legal issues trans[2] communities are struggling with in Europe. In its previous decision, the European Court of Human Rights has found that the State’s failure to modify the birth certificate of a person by recognizing the preferred gender constitutes a violation of the right to private life guaranteed by art. 8. For the first time, in Y.Y. v. Turkey, the Court examines the domestic requirements ­– in this case the sterilization requirement – which are necessary to obtain the legal recognition of the preferred gender.

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Vallianatos and Others v. Greece: What is in there for Lithuania?

This guest post was written by Natalija Bitiukova*

Is it possible that having a discriminatory law allowing civil partnerships only for different-sex couples is better than having no law at all? After the Grand Chamber released its judgment in Vallianatos and Others v. Greece case, Lithuanian human rights advocates have realized that indeed it is. Contrary to a popular view that the judgment could become an easy-win for Lithuanian same-sex couples, it seems that the equal right to enter into a civil partnership will have to wait. Unfortunately, the ECtHR, in naming Greece and Lithuania as the only countries which provide for a form of registered partnership designed solely for different-sex couples, has counted them wrongly. Continue reading

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.

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Anti-Gay Hate Speech: Vejdeland and Others v. Sweden

The Court has handed down a fascinating judgment on the freedom of expression. Vejdeland and others v. Sweden is the first time that the Court applies the principles relating to hate speech in the context of sexual orientation. A unanimous Court has ruled that Sweden did not violate the right to freedom of expression: the criminal conviction of the applicants for distributing leaflets that contained offensive statements about homosexuals did not breach the Convention. The judgment – which I will discuss below – is well worth reading, and so is the factsheet on hate speech that the Court has released on the occasion of this ruling. Continue reading