Homosexuality and the European Court of Human Rights

Paul Johnson

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781136218965
• Edition: 1
• Topic: Droit
• Subtopic: Théorie et pratique du droit

Homosexuality and the European Court of Human Rights

is the first book-length study of the Court's jurisprudence in respect of sexual orientation. It offers a socio-legal analysis of the substantial number of decisions and judgments of the Strasbourg organs on the wide range of complaints brought by gay men and lesbians under the European Convention on Human Rights. Providing a systematic analysis of Strasbourg case law since 1955 and examining decades of decisions that have hitherto remained obscure, the book considers the evolution of the Court's interpretation of the Convention and how this has fashioned lesbian and gay rights in Europe. Going beyond doctrinal analysis by employing a nuanced sociological consideration of Strasbourg jurisprudence, Paul Johnson shows how the Court is a site at which homosexuality is both socially constructed and regulated. He argues that although the Convention is conceived as a 'living instrument' to be interpreted 'in the light of present-day conditions' the Court's judgments have frequently forged and advanced new social conditions in respect of homosexuality. Johnson argues that the Court's jurisprudence has an extra-legal importance because it provides an authoritative and powerful discursive resource that can be mobilized by lesbians and gay men to challenge homophobic and heteronormative social relations in contemporary societies. As such, the book considers how the Court's interpretation of the Convention might be evolved in the future to better protect lesbian and gay rights and lives.

Part I

Making the homosexual of human rights

Chapter 1

Emerging voices

Homosexuality and the Commission 1955–1980

In 1981 the European Court of Human Rights issued its landmark judgment in Dudgeon v the United Kingdom,¹ holding that the criminalization of consensual sexual acts between adult males committed in private violated the right to respect for private life guaranteed by Article 8 of the European Convention on Human Rights. Whilst the Court’s jurisprudence relating to homosexuality subsequent to Dudgeon is well known and has become the subject of extensive debate, it is pre-dated by a substantial number of decisions issued by the European Commission of Human Rights that have received little systematic attention and remain obscure.² In this chapter, I examine the decisions of the Strasbourg organs issued in respect of complaints relating to homosexuality that were lodged by applicants between 1955 and 1980. All of the complaints in this period were brought by men seeking redress for their treatment under national laws that criminalized consensual and private homosexual sexual activities. The Commission, which until its abolition by Protocol 11 of the Convention in 1998 provided the quasi-judicial function of assessing the admissibility of all individual applications, declared all but one of the applications relating to homosexuality inadmissible and, in the main, deemed them to be ‘manifestly ill-founded’.³ No applications during this period reached the Court and therefore none were successful.

Whilst the period between 1955 and 1980 is characterized by a startling lack of success on the part of applicants in persuading the Strasbourg organs that male homosexual sexual activities were protectable under the Convention, the decisions made by the Commission remain important for a number of reasons. First, the decisions issued during this time provided the foundation on which subsequent evolutions in the interpretation of the Convention in respect of homosexuality were based. An understanding of these decisions is therefore essential because of their important contribution in establishing the framework through which the Court continues to approach homosexuality today. Second, it was in these early complaints that applicants developed particular ‘strategies’ of complaint that have since become axiomatic in petitions to the Court. In contrast to the ‘scattergun’ use of articles of the Convention in the earliest petitions, applications progressively demonstrate the emergence of the tactical use of particular articles (most notably Article 8) that continues to the present day. Third, decisions in this period show the formulation of distinctive ontological understandings of homosexuality by the Commission and the considerable influence of these on its reasoning. Ontological debates about sexual orientation, as I discuss in Chapter 2, remain ongoing and vital to the Court’s current jurisprudence. And fourth, the reasoning of the Commission during this period has strong resonances with contemporary political and legal arguments that favour restricting the human rights of homosexuals. Understanding the Commission’s decisions to systematically deny homosexuals protection under the Convention provides crucial insights into legally mandated processes of homophobia today.

The legal context of the applications lodged between 1955 and 1980

All of the applications relating to homosexuality between 1955 and 1980 originated in three states contracted to the Convention: Austria, the Federal Republic of Germany and the United Kingdom. A German applicant lodged the first complaint with the Commission on 10 October 1955, three months after the Court was recognized as competent to receive individual applications under the terms of ex Article 25(4) of the Convention, and the majority of complaints during this period were made against Germany. Although criminal laws enforced a total prohibition on male homosexual sex during some of the period between 1955 and 1980 in 10 of the 20 states that had ratified the Convention, not every contracting state afforded individuals the right of petition to the Court. The United Kingdom, for instance, granted the right of individual petition in 1966, just prior to the partial decriminalization of male homosexual acts in 1967,⁴ and this explains the absence of complaints against it before the first application relating to homosexuality in 1979.⁵ However, it is notable that the Commission received no applications from two other states during this period, which both criminalized male homosexual sex and granted the right of individual petition: Norway, for instance, granted the right of individual petition from 1955 and operated total prohibition on male homosexual sex until 1972; similarly, Ireland granted the right of individual petition in 1955 but there was no complaint against its prohibition on male homosexual sex until Norris v Ireland was lodged in 1983.⁶

The decisions taken by the Commission during this period in respect of applications relating to homosexuality must be seen within the context of the Strasbourg machinery of the time. The role of the Court in European law, from its establishment as a part-time institution in 1959 until the mid-1970s, was peripheral and its profile was low.⁷ As the Commission recognized in 1959: It appears that the Convention is little known to jurists in general and to practising lawyers in particular, even those in countries where it has been incorporated in the domestic legislation.’⁸ During these ‘sleeping beauty years’,⁹ the Commission’s authority was limited by the reluctance of the more powerful contracting states to recognize its role (France, for instance, did not ratify the Convention until 1974). As a result of this, from the point that the Commission began to receive individual applications in 1955, it developed and forcefully implemented mechanisms for dismissing complaints. Myers describes these as ‘procedures to dispose of absurd or frivolous applications and to avoid transmission to governments of applications of no interest or of malicious intent’.¹⁰ The Commission did this within the remit of ex Article 27 of the Convention that allowed it to deem inadmissible any application it considered ‘incompatible with the provisions of the present Convention, manifestly ill-founded, or the abuse of the right of individual petition’. Whilst the Commission found all but one of the complaints relating to homosexuality prior to Dudgeon inadmissible, this was not uncharacteristic in terms of its general approach. In its earliest days, between 5 July 1955 and 1 March 1960, the Commission received a total of 713 applications and, of these, declared 710 inadmissible.¹¹ Nevertheless, as I describe below, the reasoning that underpinned the decisions to declare inadmissible the applications relating to homosexuality demonstrates a fundamental unwillingness by the Commission to regard homosexual sex as in any way protectable under the Convention.

Germany and the ‘paragraph 175’ applications

The first applications lodged with the Commission relating to homosexuality were from men who complained about convictions for homosexual offences under paragraph 175 of the Criminal Code of the Federal Republic of Germany. Paragraph 175 had existed in the Criminal Code since 1871 and criminalized ‘unnatural fornication’ between men. However, as a consequence of an amendment in 1935, paragraph 175 was expanded to prohibit any ‘lewd act’ between males. The 1935 amendment also introduced a further statutory provision, paragraph 175a, that allowed for an increased term of imprisonment for lewd acts between men that involved: violence or the threat of violence as a form of compulsion; the abuse of a relationship of dependence based upon service, employment or subordination; a male over 21 years and a person under 21 years; any activity in a public place. These changes to the law broadened the scope of regulation from a limited range of ‘intercourse-like acts’, such as ‘anal, oral and thigh intercourse’,¹² and criminalized any sexual act between males that included ‘as little as a mere kiss or embrace’.¹³ The 1935 amendment of paragraph 175 – very similar in scope to the Criminal Law Amendment Act 1885 in the United Kingdom that criminalized gross indecency between males¹⁴ – was a response by the National Socialist Party to their frustration at the difficulties posed in securing convictions under the existing law:

Bad experiences in the recent period have made it seem advisable to bring into force […] harsher provisions against homosexual offences between men […] the essential defect of the previous [paragraph] 175 of the Penal Code lay in the fact that – at least in former case law – it applied only to intercourse-like acts, so that public prosecutors and the police could not proceed against evidently homosexual practices unless they were able to prove such acts. This gap has now been filled, so that any sex offence between males renders them liable to imprisonment.¹⁵

Paragraph 175 was an essential tool used by the Nazis to increase arrest rates and secure approximately 50,000 convictions for homosexual offences between 1933 and 1945.¹⁶ During the Nazi era, such convictions resulted in mass imprisonment and, as a series of biographical accounts now testify, frequent deportation to concentration camps.¹⁷ At the point that the first complaint against a paragraph 175 conviction was lodged with the Commission in 1955, the 1935 amendment to the Criminal Code was still in force. Whilst no complaints for convictions during the Nazi period could be brought before the Commission – since the Convention has no retrospective scope – German men complained that convictions under paragraph 175 subsequent to the entry into force of the Convention in 1953 violated their human rights.

In W.B. v Federal Republic of Germany, the first application of this kind, the complainant had been convicted of ‘two cases of homosexuality’ (contrary to paragraph 175) and ‘attempted serious homosexuality’ (contrary to paragraph 175a) and, as a consequence, was serving a 15-month term of imprisonment.¹⁸ Whilst convicted of crimes under both paragraph 175 and 175a, no details are given in the Commission’s decision regarding the nature of the offences. The applicant claimed his conviction violated a wide range of rights guaranteed by Articles 2, 8, 14, 17 and 18 of the Convention. The use of Article 2 in the complaint, which guarantees the right to life, is unusual and has since been used in only four other applications relating to homosexuality. The use of Article 2 is made even more remarkable by the Commission’s failure to engage with it. When reviewing the complaint, the Commission focused solely on the applicant’s claim that his conviction under paragraph 175 infringed his right to respect for private life guaranteed by Article 8 and that, because the law applied only to men, this violated his right to non-discrimination under Article 14.

The Commission disposed of the complaint in W.B. with extreme brevity, stating that ‘the Convention permits a High Contracting Party to legislate to make homosexuality a punishable offence’.¹⁹ In doing so, it established the important principle that any legal measure taken by a state to regulate ‘homosexuality’ (and not just ‘homosexual acts’) would not be regarded as infringing any of the substantive rights of the Convention. The Commission went on to blandly state t...