Abstract
In recent years the rise of populist right-wing governments across Europe has led to concerns about infringements to lesbian and gay rights. Brave individuals bring cases against their states to the European Court of Human Rights (ECtHR) to test state compliance with the European Convention on Human Rights. It is argued in this article that strict admissibility criteria before the ECtHR poses particular difficulties for lesbian and gay applicants. Specifically, the admissibility requirements of being (1) an individual victim, (2) to disallow anonymous applications and (3) to have suffered a ‘significant disadvantage’ are more challenging for lesbian and gay applicants to fulfil. It is concluded that enabling Representative Actions would provide greater possibilities for such individuals.
1 Introduction
The European Court of Human Rights (ECtHR) in Strasbourg has established itself worldwide as one of the leading international courts in the development of human rights protections for lesbian and gays.1 Article 1 of the European Convention on Human Rights (European Convention) provides that all member states should ‘secure to everyone within their jurisdiction the rights and freedoms’ contained under the European Convention.2 This is re-enforced by allowing individual applications to the ECtHR.3 As the European Convention was drafted in the 1950s, the text itself does not explicitly prohibit sexual orientation discrimination. However leading judgments from the ECtHR determined that domestic laws which prohibited sex between consenting men violated the right to private life.4 Other judgments interpreted the right to private life in conjunction with prohibition on discrimination (European Convention, Articles 8 and 14), to require the right to equality for lesbians and gay people in employment,5 tenancy conditions,6 adoption proceedings7 and, more recently, equal access to civil partnerships.8 In recent case law concerning gay rights protests, the ECtHR has upheld claims for breaches of freedom of assembly contained in European Convention Article 11.9 This is exemplified by the case of Alekseyev v Russia,10 where the ECtHR even imposed positive obligations on states to ensure that such protests can go ahead peacefully and that protestors are kept safe.11
Whilst Europe is more gay and lesbian friendly than other jurisdictions (for example 66 countries worldwide criminalise same-sex sexual relations)12 in areas of cultural and social sensitivity, the
ECtHR allows a large Margin of Appreciation (MoA) understood as a ‘latitude of deference or error’.13 The ECtHR does not mandate recognition of same-sex marriage,14 or same-sex couples’ child adoption rights,15 and has allowed individual contracting states significant latitude where freedom of expression is concerned.16 Due to the rise of populist right-wing governments across Europe in recent years there has been increasing resistance to the pro-lesbian and gay movement,17 and the following are some of the issues of concern for pro lesbian and gay activists. In 2021, Prime Minister Viktor Orban of Hungary supported legislation to partially ban adoption by same-sex couples.18 In 2022, both Bulgaria and Croatia were found in breach of non-discrimination provisions under Article 14 European Convention in conjunction with Article 2 European Convention right to life provisions, as they did not provide for homophobia as an aggravating factor when sentencing in criminal trials.19 In Autumn 2023, Italy under right-wing Prime Minister Giorgia Meloni limited recognition of parental rights to the biological parent only in the case of same-sex couples.20 In 2024, United Nations (UN) reports document that 79% of lesbians and gays in countries such as Bosnia, Serbia and Albania report some level of harassment.21 In Russia, (a Council of Europe state until its expulsion in 2022 following the invasion of Ukraine), homophobia remains very much the norm. Prior to expulsion from the Council of Europe, Russia introduced several laws limiting the ability to discuss lesbian and gay rights, and the effect on the already marginalised community of lesbian and gay people in Russia has been extremely oppressive. Human Rights Watch (following similar statements from the UN and Council of Europe) has repeatedly condemned Russia’s new laws, as ‘an effective means of intimidation’.22
[h]uman rights defenders are people who champion and fight for human rights of other people. They challenge brutality, oppression and injustice in every part of the world … They are invaluable in creating a world in where all our human rights are respected -their effort benefits us all.30
Van der Veta and Lyytikäine explain that human rights defenders (along with intergovernmental human rights institutions) are key actors who define how rights are practiced at the local level.31 Human rights defenders play a broad role in documenting human rights abuses, reporting violations to relevant international human rights organisations and offering practical support and education.32 To enable this work on the ground the UN and regional bodies in Europe such as the European Union have taken steps to protect human rights defenders.33 This article concentrates on the ability of human rights defenders concerned with lesbian and gay issues to bring forward their cases to the ECtHR. Lilla Farkas explains that ‘any human rights instrument is worth only as much as its enforcement mechanism’.34
Due to an influx of cases, the ECtHR has in recent years tightened admissibility criteria.35 In broad overview in order to be admissible to the ECtHR applicants must have exhausted domestic remedies,36 have filed their application within 4 months (reduced from 6 months) of the final domestic jurisdiction,37 the applicant must be an individual victim,38 cases cannot be made anonymously39 and following a new criterion introduced by Protocol 14, the applicant must have suffered a significant disadvantage.40 Tightening admissibility criteria was intended as a compromise between ensuring the ‘efficiency’41 and ‘long-term effectiveness’42 of the ECtHR, whilst still protecting victim’s rights. Yet the immediate impact was ‘a [steep] decrease in the pending cases before the Court’,43 with the ECtHR itself documenting that over 90% of the cases submitted were declared inadmissible due to their failure to meet stringent admissibility criteria.44 However well-intentioned the reforms, analysts have stated that ‘the new criteria sit uncomfortably with the principle of access of individuals to international justice’45 and have been criticised as being ‘vague, subjective and liable to do the applicant a serious injustice’.46 Particular concerns were expressed for vulnerable victims.47 Critics argue that there is a possibility of meritorious cases being dismissed for reasons not proportionate to the risks at stake.48 Whilst admissibility criteria in general have been the subject of extensive commentary49 there has been no specific analysis of lesbian and gay specific challenges when addressing these criteria. This article therefore intends to fill the gap. In section 2 it is argued that the admissibility requirements set out under the European Convention to be an ‘individual victim’,50 the ban on ‘anonymous applications51 and the requirement to have suffered a ‘significant disadvantage’,52 pose difficulties for gay and lesbian applicants to meet. Section 3 analyses how admissibility criteria could be changed, for example to encourage Representative Actions, thereby providing greater protection for human rights defenders.
2 Specific Challenges Faced by Gays and Lesbians When Addressing Admissibility Criteria
2.1 Individual Victim
One of the admissibility criteria set out under European Convention Article 34, is that the ECtHR can only receive applications ‘from any persons, nongovernmental organisations or groups of individuals claiming to be the victim of a violation’.53 The essence of the rule is that applicants must be directly affected in some way by the matter complained of, even if the effects are only temporary. Consequently, the ECtHR has repeatedly emphasised its unwillingness to accept cases that fall within the category of an ‘actio popularis’ (understood as actions brought by an individual on behalf of the public interest)54 or class action lawsuits.55 This was explicitly stated by the ECtHR in the case of Aksu v Turkey,56 on the grounds that the European Convention functions on a first-hand victim basis and considers how individuals’ rights are impacted in a case rather than rights in abstract. For this reason, the ECtHR will often reject applications submitted by Non-Governmental Organisations (ngo s) or representative bodies aiming to argue in favour of specific causes.57 It is argued that the requirement to be an individual victim poses particular difficulties for claims connected with sexual orientation discrimination to comply with because: (i) lesbians and gays face specific challenges where the rule against actio popularis is concerned and (ii) the doctrine of transferable rights allowing indirect claims is less likely to apply to lesbians and gays.
2.1.1 Rule against ‘actio popularis’
Article 34 guarantees the right of individual application, which gives individuals a genuine right to take legal action at international level. It is also one of the fundamental guarantees of the effectiveness of the Convention system – one of the “key components of the machinery” for the protection of human rights.60
The ECtHR functions on the basis of considering how individuals rights are specifically impacted, rather than considering rights in the abstract, which is also necessary to ensure ‘effectiveness’ and to prevent Strasbourg is already overwhelmed with thousands of cases each year.61 This means that whilst applicants can have representatives, authorised as Advocates in their contracting state,62 and ngo s can engage in supporting activities (for example funding, representation and background support), applicants must bring cases in their own names. The ECtHR will reject applications submitted by ngo s or representative bodies aiming to argue in favour of causes (rather than as an individual victim themselves).63
However, disallowing ngo s or public interest groups to bring forward cases on behalf of applicants, together with the starting point of not allowing anonymous cases (see section 2.2 below), has a clear impact on individual applicants. Individuals are required to put themselves forward into the blaze of publicity when bringing a case. This is demonstrated by two recent cases which successfully challenged Northern Ireland’s then restrictive abortion laws which prevented abortions even where a fatal foetal abnormality had been diagnosed. The first case had originally been brought by the Northern Ireland’s Human Rights Commission (nihrc) on behalf of victims. However the case failed as nihrc was not regarded as an individual victim, although the court did indicate that apart from this point, a violation of Article 8 would have been found.64 Consequently, individual victim Sarah Ewart, who had personally suffered a fatal foetal abnormality and had been denied an abortion due to Northern Ireland’s strict abortion laws at the time, had to bring forward her own individual case, before a breach of Article 8 was found.65
This issue is particularly challenging for lesbian and gay applicants. In the leading cases Dudgeon v UK and Norris v Ireland,66 the ECtHR found breaches of Article 8 European Convention concerning then laws in place prohibiting consenting same-sex sexual relationships between men (in Northern Ireland and the Republic of Ireland respectively).67 However, Norris had to bring the case in his own name. An earlier attempt by the National Gay Federation to bring a case on his behalf failed as the ECtHR did not regard the Federation as an individual victim. Instead an individual victim, namely Norris, was required to put himself forward and reveal his sexual orientation at a time when the political climate in the Republic of Ireland did not publicly favour lesbian and gay issues. It is argued that the rule against actio popularis which prevents ngo s bringing cases forward, together with the starting point of the additional admissibility requirement not to allow anonymous applications (see section 2.2) can be difficult or even dangerous in countries which are less tolerant of lesbians and gays. The issue remains particularly pertinent today given the rise of populist far-right parties in Europe.
2.1.2 Indirect Victims
In cases concerning absolute rights,68 ECtHR case law has widened the individual victim criteria to allow cases to be brought by indirect victims, who are usually relatives. However lesbian and gay applicants face challenges using the mechanism of indirect victim because (i) they are less likely to be considered relatives and (ii) because lesbian and gay cases often do not concern absolute rights. Perhaps the need for the ECtHR allowing indirect victims is most obvious in cases concerning right to life (European Convention, Article 2), where victims have lost their own life and are therefore clearly incapable of bringing a case. Again it can be argued that this is a necessity for some victims under Article 3. However, in the case of llhan v Turkey (2000), the ECtHR critiqued the fact that indirect victims could bring forward cases, arguing that it was too similar to an actio popularis.69 There are also examples of the ECtHR allowing indirect victims to bring forward cases concerning the right to liberty (European Convention, Article 5) as demonstrated by cases Varnava and Others v Turkey and Khayrullina v Russia.70 Usually ECtHR case law has recognised indirect victims to include relatives. On occasion the rule has been extended to include indirect victims who are not family members.71 In the case of Becker v Denmark the ECtHR allowed an individual to bring a case where the applicant children in question ‘relied on the applicant’.72 However, this does still circumvent the usual rule that only individual affected victims can bring cases to the ECtHR. It is going to be challenging for lesbian and gay applicants to rely on the indirect victim test as they are less likely to be recognised as family members due to the diversity of recognition of lesbian and gay rights across the Council of Europe and the wide margin of appreciation allowed by the ECtHR in this respect.73
The doctrine of indirect victims or transferable rights is typically only used in relation to absolute rights. The ECtHR Practical Court Guide on Admissibility 2023 states that ‘in cases where the alleged violation of the Convention was not closely linked to the death or disappearance of the direct victim the Court’s approach has been more restrictive’.74 As cases concerning sexual orientation discrimination are typically brought under qualified rights,75 in combination with the freedom from discrimination,76 they are unlikely to be able to benefit from this doctrine. In many cases the ECtHR has repeatedly ruled out the Article 8 private life right as a transferable one, meaning that there is little scope for indirect victims to bring forwards cases77 although it may be possible to bring a claim if the applicant can demonstrate for example a ‘moral’ or a ‘pecuniary’ interest.78 The case of Belli and Arquier-Martinez v Switzerland (2018), whereby the ECtHR allowed the mother to bring forward a case as an ‘indirect victim’ regarding a case of discrimination against a disabled child who could not represent themselves, is a rare exception to this prohibition.79
Previous case law under Article 8 European Convention, which allowed individuals to bring forward claims on the basis that they fell within a class of potential victims, has now been considerably tightened. The use of the doctrine of potential victim is demonstrated by the Dudgeon v UK (1981) and Norris v Ireland80 judgments as the mere existence of legislation criminalising same-sex relationships was deemed to directly effect the applicant’s private life even if they respected the law and refrained from the prohibited behaviour (becoming actual victims if they engaged in the prohibited acts and become liable to criminal prosecution).81 The potential victim case law was utilised in cases where the individual claimed they could be the subject of secret surveillance by postal or telecommunication services,82 where they were potentially affected by succession legislation concerning children born out of wedlock83 and for Irish women of child-bearing age who were prevented from accessing information about abortion facilities outside of jurisdiction by court injunction.84 The previous case law was tightened and re-clarified in the case of Roman Zakharov v Russia.85 The Grand Chamber of the ECtHR stated that, going forward, cases could only be brought where an applicant could claim to be affected because they belonged to a group or persons targeted by the contested legislation or because the legislation directly affected all users of the communications services. The ECtHR takes into account the availability of remedies depending upon their effectiveness.
2.2 Applications Cannot be Anonymous
The European Convention Article 35 (2) (a) requires that applications cannot be anonymous.86 The general stance of the ECtHR is that all of its documents are public and are published with the applicants’ full name. The ECtHR Practical Court Guide on Admissibility states that as required by Rule 47(1)(a) of the Rules of Court Guide the starting point is that ‘applicant must be duly identified in the application form’.87 This is to avoid cases being lodged for improper purposes.88 However, under Rule 47.4, the ECtHR does allow applicants to request anonymity by submitting a ‘statement of the reasons justifying such a departure from the normal rule of public access to information in proceedings before the Court’.89 Similarly public access to documents can be restricted ‘in special circumstances which would prejudice the interests of justice’.90 Whilst there are many examples of anonymity being granted, the starting point is to reject anonymity unless applicants apply to waive this criterion. Also ECtHR applicants must first exhaust domestic remedies,91 and not all national systems allow for anonymity. Whilst any alleged victim of human rights abuse has to be courageous to bring forward a case, we argue that this particularly impacts on lesbians and gays as it requires them to reveal their sexual orientation, which may not otherwise have been noticeable. This is particularly relevant given the large diversity of legal, cultural and social treatment of lesbians and gay men across Europe. In some European countries, due to difficult on the ground circumstances, it may not be possible for applicants to reveal their sexual orientation in order to bring a case to the ECtHR.
Yet the ECtHR starting point of lack of anonymity and prohibition of actio popularis (meaning a lack of representative action for ngo s) means that gays and lesbians who bring forward cases often must reveal their sexual orientation. The lack of legal protections and / or social inclusion on the ground, means that in practice gays and lesbians who bring cases to the are being potentially exposed to danger in certain Council of Europe states. This places a practical restriction on lesbians and gays being able to bring forward a case to the ECtHR. This is illustrated by Kozak v Poland which concerned discriminatory provisions surrounding tenancy laws in Poland.92 The applicant Piotr Kozak stated that he was hesitant to bring a case involving lesbian and gay rights, stating: ‘it was not something one could just talk about in our country. People in Poland are still against different relationships’.93 Such was his reluctance to reveal his sexual orientation, that he originally denied being in a same-sex relationship when bringing the case.94 His point of view is understandable, given the high level of intolerance to lesbians and gays in certain parts of Poland, in common with other European states where there is a growing influence from the populist far right parties. Even prior to Russia’s expulsion with new anti-lesbian and gay laws open discussion of such issues in Russia had become impossible. In an interview a Russian lesbian and gay activist Igor Iasine opined that Alekseyev, the proponent behind the ECtHR case of Alekseyev v Russia,95 had achieved ‘success’ following the ECtHR judgment which found a breach of Article 11 European Convention freedom of assembly following the banning of Moscow Pride Marches.96 However, Iasine stated that Alekseyev’s movements have done little to impact attitudes in Russia as he had built everything about ‘his person’ and that he had not actively developed the lesbian and gay movement in Russia.97 His activism also came at great personal cost as he had been arrested by Russian authorities on many occasions. Others who protest openly are also often arrested and abused as demonstrated by the case of Kirill Kalugin a Russian lesbian and gay activist who following many arrests in Russia applied for asylum in Germany.98 Even whilst still a Council of Europe member, Russia was and continues to be notorious for setting up traps for gay men and subjecting them to appalling abuse. Discrimination towards members of the lesbian and gay community has increased, with Human Rights Watch reporting in 2014 a rise in violent attacks. The extent of the hatred is not in any ways limited by authorities in Russia, meaning that those who identify outwardly as part of the lesbian and gay community are either forced to hide their true selves or face potential violence.99 The ECtHR’s requirement for an individual victim (therefore disallowing action popularis and representative actions) and the starting point of anonymity does not consider the specific challenges facing lesbian and gay applicants. Consequently, these applicants are not given the greatest protection possible and often face stark choices in deciding which risks to bear when bringing important cases to the ECtHR.
2.3 Significant Disadvantage
Following the tightening of admissibility criteria through the introduction of Protocol 14, Article 35 now states that applications are only allowed if they are (a) not manifestly ill-founded and (b) where the applicant has suffered a significant disadvantage.100 The purpose of the ‘significant disadvantage’ criterion, introduced by the Protocol 14 is to give power to the ECtHR to ‘dismiss cases which raise no substantial issue under the Convention’101 allowing expeditious disposal of ‘issues not very important from a human rights perspective’.102 Yet individual victims determined to pursue justice were intended to be protected as this provision was not supposed to be ‘too-far reaching’.103 A compromise solution, was to include a safeguard clause under Article 35(3)(b) where the ECtHR can refuse to strike out an application even if there is no significant disadvantage if ‘respect for human rights […] requires an examination of the application on the merits’.104 The President at the time of the reform, Luzius Wildhaber, did not see the reform as ‘sufficient’,105 but in practice the introduction of the ‘significant disadvantage’ criterion has been hailed as a victory for constitutionalists as the ECtHR is now able to dismiss less serious cases.106 This has led to manifold academic criticism from those favouring victim accessibility to the ECtHR. Some criticise the new criteria as an ‘ideological shift’107 with authors arguing that ‘it … sends the wrong signal to states [with] lesser violations of human rights [escaping] scrutiny’.108 We argue that lesbians and gays face specific challenges when attempting to meet this criterion.
The introduction of the criterion of ‘significant disadvantage’ into admissibility criteria, means that, judging the ‘merits’ of a claim becomes part and parcel of admissibility criteria as well. Indeed, the ECtHR’s Admissibility Guide classifies the criterion of ‘significant disadvantage’ as inadmissibility review ‘based on the merits’.109 Yet Article 27 of the Convention states that ‘[a] single judge may declare inadmissible or strike out of the Court’s list of cases an application submitted under Article 34’ and the Admissibility Guide confirms that the ‘majority ‘ of cases will be determined by single judges, or a three-judge committee (with possibility for reference to the Chamber or Grand Chamber).110 The authority given to single judges has led to criticism that although they are making merit-based judgments, these could be ‘remarkably subjective’.111 This also leads to the larger issue of interference with principles of fair hearings and transparency.112 In section 2.3.1 we develop the argument that as claimants bringing cases based on issues connected with sexual orientation discrimination (most likely to be lesbians and gay persons) are typically relying on qualified rights113 it is harder for those cases to meet the ‘significant disadvantage’ criterion, than those relying on absolute rights.114 In section 2.3.2 we set out an additional barrier faced by those bringing cases based on sexual orientation discrimination in meeting the ‘significant disadvantage’ test, as they are subject to more relativity and diversity of social and cultural norms leading to a wider MoA.
2.3.1 Absolute versus Qualified and Conditional Rights
The ‘significant disadvantage’ criterion as set out in the text of the Convention applies to all rights.115 Yet case law in practice reveals that certain types of rights are treated differently in relation to this admissibility criterion. In practice absolute rights, which allow of no derogation in ordinary circumstances will rarely fail this admissibility test. In contrast, qualified rights, which allow derogation by states for a wide variety of purposes, including for example for ‘the protection of health or morals’ (European Convention, Article 8) are subject to a more detailed standard of review.116 Those alleging sexual orientation discrimination (most commonly lesbian and gay applicants) utilise qualified rights such as right to private life in combination with Article 14 non-discrimination provisions, a conditional right which can only be asserted if the applicant is claiming for breach of another right at the same time.117 It is argued consequently that it is harder for these applicants to meet the ‘significant disadvantage’ criterion than those relying on absolute rights. The position of applicants claiming discrimination would be strengthened if this became a free-standing equality clause as provided by the EU Charter of Fundamental Rights (Article 21) or the International Covenant on Civil and Political Rights (Article 26).118 Optional Protocol 12 European Convention which does contain a free-standing non-discrimination clause, but this has not yet been ratified by all contracting states.119
The difficulties with applicants seeking to satisfy the ‘significant disadvantage’ test whilst relying on qualified rights (as opposed to absolute rights) is corroborated by an analysis of the ECtHR’s case law. Vogiatzis explains that in relation to absolute rights ‘alleged violations of such rights do constitute a significant disadvantage’.120 Absolute rights such as right to life (European Convention, Article 2) and freedom from torture (European Convention, Article 3) commonly meet the significant disadvantage criterion with little analysis.121 Although the Court Guide explains that whilst the no significant disadvantage test ‘applies to all applications pending before the Court’,122 the ECtHR stated in a case judgment that it has difficulty ‘envisaging’ where this criterion would not be satisfied in freedom from torture cases (European Convention, Article 3) where the minimum level of severity test has already been met.123 In similar vein, the ECtHR rejected application of the test to an Article 2 cases, ‘stressing that the right to life is one of the most fundamental provisions of the Convention’.124 Similarly, the ECtHR has so far rejected the application of the ‘significant disadvantage’ admissibility criterion to Article 5 cases because of the significance which is attached to liberty in democratic countries.125
In contrast, case law reveals the careful scrutiny of the significant disadvantage criterion where Articles 8 – 11 are concerned (where claims for sexual orientation discrimination are typically framed).126 In considering the test the ECtHR dismisses insignificant violations.127 How the test applies in practice is varied and depends upon all the circumstances of the case. Points that could be taken into account are great in variety and include for instance in a freedom of assembly (European Convention, Article 11) context ‘the importance of those freedoms’ in a democratic society.128 In freedom of expression cases (European Convention, Article 10) this could include consideration of contributions made to ‘debates of general interest and whether the case involves the press or other news media’.129 As explored further in section 2.3.2 below there is even more relativity in relation to claims concerning sexual orientation as these are more commonly subject to wider MoAs due to wider variations in cultural, social and religious treatment.130 In addition when the ECtHR considers the legitimacy of derogations, qualified rights require consideration of necessity and proportionality. This means that at the admissibility stage the ECtHR considers whether a derogation is necessary ‘in accordance with the law and … in a democratic society’131 and whether the interference is no more than absolutely necessary.132
Vogiatzis concludes that the difference in practical application of the significant disadvantage criterion to absolute rights as opposed to qualified rights could ‘possibly [and] indirectly [lead to] some type of classification of rights’.133 We argue that it also is likely to disadvantage lesbian and gay applicants. Whilst the categories of absolute right are common amongst many international human rights conventions, an underlying debate remains as to what rights really are fundamental.134 Specifically in relation to discrimination rights an argument could be made that they too should be considered of paramount important. Lilla Farkas argues that ‘… bearing in mind the sheer volume and nature of discrimination, – i.e. that is deep-rooted in human nature, recurring, institution and structural, the quality and efficacy of the mechanism enforcing the obligation of equal treatment is of paramount importance’.135 In other case law the ECtHR has found that discrimination against lesbian and gay persons requires particularly strong justification.136 Certainly the argument can be made that non-discrimination rights are a vital component of equal citizenship137 and needed for ‘full political standing’.138
2.3.2 Margin of Appreciation (MoA)
As the ‘significant disadvantage’ criterion brings an assessment of the merits into the admissibility stage, considerations such as MoA139 therefore also become relevant at this early stage. The ECtHR has done much to advance rights for lesbians and gays, yet where lesbian and gay issues are concerned the ECtHR often leaves this subject to large MoAs.140 This can be demonstrated by cases the early seminal case of Handyside v United Kingdom141 and is replicated in other areas such as same-sex marriage,142 same-sex adoption and case law concerning article 10 freedom of expression.143 The ECtHR seeks to justify this by arguing that it is attempting to balance its goals to protect human rights, with the varying cultures and moral attitudes in member states.144 Justine de Kerf, argues that the ECtHR does not wish to step on the toes of Member states, arguing that statuses such as marriage have ‘deep-rooted social and cultural connotations’ meaning that national authorities are ‘best placed’ to respond to the particular needs of their society.145 It is argued that the introduction of the no significant disadvantage test into the admissibility criteria, now means that the significant MoAs applied in many lesbian and gay cases in the merits stage will now also affect the determination of whether there is a significant disadvantage on admissibility.
Many authors criticise the ECtHR merits case law for providing for a large MoAs in the area of lesbian and gay rights, arguing that this stance significantly affects the rule of law.146 Large MoAs means that contracting states are free to determine their own domestic legislative provision, and could be relying on erroneous or discriminatory reasons in persisting with unequal treatment of gays, lesbians and same-sex relationships.147 Whilst a balance needs to be struck between universal rights on the one hand and ‘the competing values of self-governance, autonomy, and diversity’148 on the other, it is argued that over reliance on regionalism leaves minority groups such as gays and lesbians unprotected.149 This is despite the fact, as explored in the Introduction, that many cases of discrimination against lesbian and gay persons continue to exist in the Council of Europe states. Another criticism is that in waiting for a consensus to develop (one of the central reasons given by the ECtHR in allowing a wide MoA), it is unclear when this will occur or how it will be quantified or measured.150 Yet the introduction of ‘significant disadvantage’ criterion into the admissibility stage, brings considerations of MoA into play at this stage. We argue that these criticisms drawn from merits-based case law around wide MoAs in many areas connected with lesbian and gay discrimination, will now also apply to the ECtHR admissibility criterion of ‘significant disadvantage’. This results in an additional barrier for lesbian and gay applicants in seeking to satisfy this criterion.
3 How Admissibility Criteria Could Be Changed
primary purpose of the Convention system is to provide individual relief, its mission is also to determine issues on public-policy grounds in the common interest, thereby raising the general standards of protection of human rights and extending human rights jurisprudence throughout the community of the Convention States.153
Yet the present system relies on individuals to bring forward cases, meaning that claims are made ad hoc, making enforcement patchy and random.154 Matters are also considered in a retrospective manner, leading to a defensive approach, rather than thinking about encouraging correction to prevent future breaches.155 It could also be argued as set out by Lilla Farkas that discrimination claims are not well suited to individual applications as discrimination often does not arise at the individual level.156 Sara Benedi Lahuerta further elaborates that ‘[d]iscrimination claims do not arise individually’ and that therefore ‘[i]individual litigation may be ill-equipped to stop mass harm and systemic unlawful practices’ with additional considerations around the fact that individuals may have ‘little incentive to start an individual complaint if potential compensation awards are unlikely to cover litigation costs’.157
A common argument against reform of laws in relation to sexual orientation discrimination, is that the ECtHR should stay clear from national states’ legislation in this respect and that cultural, social and religious diversity should be respected in areas of social moral and religious controversy such as lesbian and gay rights. The point is clearly demonstrated by the Schalk and Kopf v Austria judgment, where the ECtHR justified leaving a large Margin of Appreciation (MoA) due to respect for cultural and historical diversity in respect of same-sex marriage.158 However, in recommending a change to the Admissibility criteria, whilst we aim to increase access to the ECtHR for vulnerable group such as lesbians and gays, we are not requiring wholesale change across Council of Europe states. There could be several different potential changes to Admissibility criteria, which could include allowing actio popularis (actions in the public interest which may be general potential challenges to law)159 allowing ‘class actions’ as already seen in the US (defined as specific challenges where a class of applicants have similar cases) or our chosen recommended action of representative actions (a representative group or ngo, representing an individual). Any of these approaches could in part resolve the pressure on individual victims put in place by the current ECtHR admission criteria. However actio popularis or class actions are unlikely to ever be approved by the ECtHR. As set out in the introduction either of these reforms could be seen as undermining one of the strengths of the European Convention in that it allows individual applicants.160 In case law the ECtHR has set out its refusal to ever countenance actio popularis. This was explicitly stated in the case of Aksu v Turkey,161 on the grounds that the European Convention functions on a first-hand victim basis and considers how individuals’ rights are impacted in a case rather than rights in abstract.162 There are also concerns that allowing actio popularis or class actions would open the floodgates and lead to the ECtHR being unduly burdened.
However, we argue that allowing representative actions in the context of discrimination claims could be a useful method in seeking to improve the current position. In contrast to actio popularis or class action, representative actions are still brought forward by individual applicants, and thereby do not disturb the core basis behind the European Convention and its emphasis on protecting individuals. Representative actions, in allowing an action to be brought forward by an ngo on behalf of an individual, mean that individual victims are not required to reveal their sexual orientation. Representative actions also have other advantages given that ngo s are larger organisations and may have more resources, and funding that individual applicants simply do not have, and that they provide an important framework for victims to bring claims. This is exemplified by the Kosa case, where the ECtHR rejected the case on the basis that it was not brought forward by an individual victim.163 The applicants in the case argued adamantly that ngo should be allowed to be applicants as the Romani people they sought to represent were unlikely to have the funding and education needed to bring such a case before the echr as individual applicants, and also described their lack of faith in the justice system, as well as a lack of awareness as to the tools and resources available to them. Third party intervener Open Society Justice Initiative argued that disallowing applications from ngo s in these circumstances ‘render Convention rights theoretical and illusory’.164 At present these arguments have proven fruitless as the ECtHR remains steadfastly against allowing such representative arguments on the basis of concerns about actio popularis and opening the floodgates. A similar decision was also reached by the ECtHR in Esélyt A Hátrányos Helyzetű Gyerekeknek Alapítvány v Hungary.165 Yet if representative actions are framed appropriately this would not necessarily lead to the opening of floodgates or other adverse impact on the ECtHR. Representative actions are firmly distinct from those claiming their rights in the abstract. As already demonstrated above in certain circumstances the ECtHR has allowed flexibility in practice around the application of admissibility criteria. This is demonstrated by the ‘indirect victim’ doctrine which is applied to absolute rights.166 In the past as well the ECtHR did recognise the category of ‘potential victim’ although this has now been tightened.167 There are also many cases that demonstrate the ECtHR’s willingness to accept applications from groups of applicants. This is seen in the cases of dh and Others v the Czech Republic and Oršuš and Others v Croatia,168 where the rights of Roma were considered in a wider context, with some even comparing these cases to ‘class action’ lawsuits.169
4 Conclusion
The foregoing analysis has demonstrated that the current admissibility criteria pose particular difficulties for lesbian and gay applicants to meet. Case law analysis demonstrates that the ‘significant disadvantage’ criterion is easier for cases concerning absolute rights to meet, as such cases are commonly held to meet the significant disadvantage criteria with little analysis.170 In contrast those bringing cases under qualified rights (where claims for sexual orientation discrimination are framed), are subject to a more stringent analyses on admissibility in relation to the ‘significant disadvantage’ criterion, with less possibility of the doctrine of transferable rights being applied.171 There are also broader MoAs applied to lesbian and gay cases in the merits stage and with the introduction of the significant disadvantage test to admissibility, these are now also likely to be applied at this early stage.172 The analysis regarding the current individual victim criteria and the ban on anonymous applications reveals the severe pressure and burden that individuals can be placed under to reveal their sexual orientation when bringing a case, resulting in a practical barrier.173 The risk of preventing ngo s from representing victims and the starting point of preventing anonymous applications is clear. While some applicants such as Norris may be willing to bring their cases individually, other victims may be entirely dissuaded from bringing their cases due to this condition.174 It is argued that reform is needed both for the sake of the individual victims bringing cases, but also because of the wider public interest in enabling discrimination claims to be heard by the ECtHR. Representative actions mean that individual victims start from the point of being anonymous and therefore do not have to contend with revealing their sexuality in circumstances where it may be difficult or dangerous to do so. Additional advantages of representative actions means that there may be assistance from a cost perspective, as there is more chance of relevant funding. Representative actions mean that ngo s are more likely to be able to advise on complicated legal points and whilst the ECtHR ‘significant advantage’ criterion is in place this is clearly needed. This article is timely due to the rise of populist right-wing governments across Europe in recent years and the consequent challenge to the pro-lesbian and gay movement.175 Human right defenders who bravely bring their cases to the ECtHR in order to test contracting state compliance with the European Convention therefore face increasing challenges, but their actions are needed perhaps more than ever. Allowing representative actions by ngo s would in our view increase the possibility of lesbian and gay human rights defenders being able to satisfy admissibility criteria and have their cases heard by the ECtHR.
Acknowledgements
We would like to thank the University of Reading urop Scheme for sponsoring Naida Alagic-Bowder to undertake the initial research on this article under the supervision of Dr Frances Hamilton.
Council of Europe, ‘The 40th Anniversary of a Key European Court of Human Rights Case that Led to the Decriminalisation of Homosexuality – a Turning Point for lgbti Persons’ 22 October 2021, Strasbourg, sogi Newsroom,<https://www.coe.int/en/web/sogi/-/40th-anniversary-of-a-leading-european-court-of-human-rights-case-that-led-to-the-decriminalisation-of-homosexuality-a-turning-point-for-lgbti-persons> accessed 17 October 2024.
Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights), ets No. 5, 213 unts 222, Art 1.
Ibid, Art 34.
Dudgeon v UK App no 7525/76 (ECtHR, 22 October 1981), (1982) ehrr 149.
Smith and Grady v UK (1999) App nos 33985/96 and 33986/96 (ECtHR, 27 September 1999), (1999) 27 ehrr 493 and Lustig-Prean and Beckett v UK (2000) App nos 31417/96 and 32377/96 (ECtHR, 25 July 2000), (2001) 31 ehrr 23.
Karner v Austria (2001) App no 40016/98 (ECtHR, 11 September 2001), (2004) 38 ehrr 24.
eb v France (2008) App no 43546/ 02 (ECtHR, 22 January 2008), (2008) 47 ehrr 21.
In Oliari v Italy (2015) App nos 18766/11 and 36030/11 (ECtHR, 21 July 2015), (2017) 65 ehrr 26 the ECtHR stated that contracting states must provide some level of civil partnership, providing that the circumstances on the ground were socially accepting of same sex couples. In Orlandi v Italy (2017) App no 26431/12 (ECtHR, 14 December 2017), the ECtHR held that a failure to recognise a same-sex marriage conducted abroad contravened the European Convention. Following Fedetova and Others v Russia (2021) App no 40792/10 (ECtHR, 22 November 2021), (2022) 74 ehrr 28 the ECtHR now requires contracting states to introduce civil partnerships, even where not socially accepting of same-sex couples on the ground. However there is no requirement to introduce same-sex marriage Schalk and Kopf v Austria (2010) App no 30141/04 (ECtHR, 24 June 2010), (2011) 53 ehrr 20.
European Convention, (n 2) Art 11 provides that ‘Everyone has the right to freedom of peaceful assembly and to freedom of association.’
The case of Alekseyev v Russia App no 4916/07 (ECtHR, 21 October 2010), (2011) Crim L R 480; J De Kerf, ‘Anti-Gay Propaganda Laws: Time for the European Court of Human Rights to Overcome Her Fear of Commitment’ (2017) 4(1) DiGeSt. Journal of Diversity and Gender Studies 35.
ECtHR, ‘Guide on the case-law of the European Convention on Human Rights of lgbti Persons’ (‘ECtHR lgbtqi case guide’) 2024, Strasbourg <https://ks.echr.coe.int/documents/d/echr-ks/guide_lgbti_rights_eng-pdf> accessed 17 October 2024.
International Lesbian and Gay Association (ilga), ‘Map of Sexual Orientation Laws’ 2024, <https://ilga.org/ilga-world-maps/> accessed 17 October 2024.
P Butler, ‘Margin of Appreciation – A Note Towards a Solution in the Pacific’ Victoria University (2008–2009) 39 Legal Research Paper 687 referring to HC Yourow, Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence (Brill 1996).
Schalk v Kopf v Austria (n 8). Out of 46 contracting states to the European Convention, twenty-one European states have now legalised same-sex marriage. This reflects global developments and makes a huge change from past purely heterosexual conception of marriage. Yet, certain Central and Eastern Europe states constitutionally define marriage as between a man and a woman only.
Alekseyev v Russia, (n 10) para 83. The ECtHR has reached favourable decisions in this area. If a contracting state allows same-sex couples or individuals to adopt they must do so without discrimination eb v France (n 7), X and Others v Austria, App no 19010/07 (ECtHR, 19 February 2013), 1 Fam cr 387. The ECtHR tries to avoid ‘limping’ situations where a parent-child relationship is recognised in one jurisdiction, but not another Wagner v Luxembourg, App no 76240/01 (ECtHR 28 June 2007); Mennesson v France, App no 65192/11 (ECtHR, 26 June 2014) including step-child adoption D.B. v Switzerland App nos 58252/15 and 58817/15 (ECtHR, 22 November 2022). However, the ECtHR does not impose an obligation on signatory states to allow same-sex couples to adopt when considering families who have not moved cross border and in Alekseyev v Russia (n 10) para 83 confirmed a wide margin of appreciation in respect of this.
Handyside v UK App no 5493/ 72, (ECtHR, 7 December 1976), (1979–1980) 1 ehrr 737 as discussed by P Johnson, ‘Homosexual Propaganda’ Laws in the Russian Federation: Are They in Violation of the European Convention on Human Rights?’ (2015) 3(2) Russian Law Journal 37.
See for information Council of Europe Parliamentary Assembly, ‘Provisional version Combating rising hate against lgbti people in Europe’ 2021 <https://assembly.coe.int/LifeRay/EGA/Pdf/TextesProvisoires/2021/20210921-RisingHateLGBTI-EN.pdf> accessed 17 October 2024.
Human Rights Watch, Graeme Reid, ‘Hungary’s Path Puts Everyone’s Rights in Danger’ 6 October 2021, <https://www.hrw.org/news/2021/10/06/hungarys-path-puts-everyones-rights-danger> accessed 17 October 2024.
Stoyanova v Bulgaria App no 56070/18 (ECtHR, 14 June 2022), (2022) 75 ehrr 27 and Beus v Croatia and Sabalić v Croatia App no 16943/17 (ECtHR, January 2021) paras 32 and 33.
Los Angelos Times, Colleen Barry, ‘Italian Government Limits Parental Rights of Gay Couples’ 14 March 2023 <https://www.latimes.com/world-nation/story/2023-03-14/italian-government-limits-parental-rights-of-gay-couples> accessed 17 October 2024.
United Nations Development Programme, ‘Being lgbti in Eastern Europe Progress, Drawbacks Recommendations’ 2024, <https://www.undp.org/sites/g/files/zskgke326/files/migration/eurasia/undp-rbec-Factsheet-Being-LGBTI-in-Eastern-Europe.pdf> accessed 17 October 2024.
Human Rights Watch, ‘No Support, Russia’s “Gay Propaganda” Law Imperils lgbt Youth’ 11 December 2018, <https://www.hrw.org/report/2018/12/12/no-support/russias-gay-propaganda-law-imperils-lgbt-youth> accessed 17 October 2024.
European Convention, (n 2) Art 33.
An ECtHR Press Sheet explains that ‘[m]ost applications to the ECtHR are lodged by individuals, groups of people, companies or ngo s’ and as at June 2024 only 30 cases had ever been lodged by states. See ECtHR ‘Press Q A Inter-State Cases’ June 2024 <https://www.echr.coe.int/documents/d/echr/Press_Q_A_Inter-State_cases_ENG> accessed 17 October 2024.
A Fagan, ‘The Subject of Human Rights: From the Unencumbered Self to the Relational Self’ (2024) 42(2) Nordic Journal of Human Rights 215.
Ibid at 217 referring to ccpr General Comment No. 23: Article 27 (Rights of Minorities), ccpr/c/21/Rev.1/Add.5.
Fagan (n 25) at 216 referencing M A. Jovanovic, Collective Rights: A Legal Theory (University of Belgrade Press 2012).
Fagan (n 25) referencing an attempt to formulate a set of human rights-based responsibilities from the Inter-Action Council, A Universal Declaration of Human Responsibilities 1 September 1997, <https://www.interactioncouncil.org/publications/universal-declaration-human-responsibilities> accessed 17 October 2024.
See Fagan (n 25) at 216 where he traces representations of the individual subject back centuries to theorists and philosophers such as John Locke, Gottfried Wilhelm Leibniz, Adam Smith, Immanuel Kant, John Stuart Mill, Ronald Dworkin, John Rawls, and Alan Gewirth.
Amnesty International, ‘Human Rights Defenders – Some of the Bravest People in the World’ 12 January 2018 <https://www.amnesty.org.uk/human-rights-defenders-what-are-hrds> accessed 17 October 2024.
F van der Veta and L Lyytikäine, ‘Violence and human rights in Russia: how human rights defenders develop their tactics in the face of danger’ (2015) 19(7) The International Journal of Human Rights 979.
Amnesty International (n 30).
See United Nations General Assembly Resolution 53/144 ‘Declaration on the Right and Responsibility of Individuals, Groups, and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms’ 9 December1998 <https://www/ohchr.org/en/civic-space/declaration-human-rights-defenders> accessed 17 October 2024 and at a regional level in Europe, European Union ‘Guidelines on Human Rights Defenders’ 2008 <https://www.eeas.europa.eu/sites/default/files/16332-re02_08_en.pdf> accessed 17 October 2024.
L Farkas, ‘Limited Enforcement Possibilities Under European Anti-Discrimination Legislation: A Case Study of Procedural Novelties’ (2001) 3(3) Erasmus Law Journal 181.
See ECtHR, ‘The European Court of Human Rights, Practical Guide on Admissibility Criteria’ (‘ECtHR Practical Guide on Admissibility’) 31 August 2023 <https://www.echr.coe.int/documents/d/echr/admissibility_guide_eng> accessed 17 October 2024.
European Convention, (n 2) Art 35.
Ibid. This reform was introduced by Protocol 15.
European Convention, Art 34.
European Convention, (n 2) Art 35 (2)(a).
European Convention, Art 35(2)(b). The latter criterion was introduced by Protocol 14 European Convention which was enacted in 2004 but came into force in 2010 following ratification by the final contracting state Russia. Protocol 14 empowered the ECtHR to declare applications inadmissible where the applicant has not suffered a significant disadvantage and which do not raise serious questions affecting the application or the interpretation of the convention, or important questions concerning national law.
D Shelton, ‘Significantly Disadvantaged? Shrinking Access to the European Court of Human Rights’ (2016) 16(2) Human Rights Law Review 30.
N Vogiatzis, ‘The Admissibility Criterion Under Article 35(3)(b) echr: A “Significant Disadvantage” to Human Rights Protection?’ (2016) 65(1) International and Comparative Law Quarterly 185; ECtHR Practical Guide on Admissibility, (n 35) para 12.
Vogiatzis (n 42) at 186 referring to ECtHR, ‘Annual Report 2014’.
ECtHR, ‘The Admissibility of an Application’ 2015 at 1, <https://www.echr.coe.int/documents/d/echr/COURtalks_Inad_Talk_ENG> accessed 17 October 2024.
Vogiatzis (n 42), 187 and Shelton (n 41).
Committee on Legal Affairs and Human Rights, ‘Draft Protocol No 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, amending the control system of the Convention, Doc. 10147’ 23 April 2004 <https://assembly.coe.int/nw/xml/XRef/X2H-Xref-ViewHTML.asp?FileID=10508&lang=EN> accessed 17 October 2024.
Ibid.
A Mowbray, Cases, Materials, and the Commentary on the European Convention on Human Rights (1st edn, oup 2007) 18–22.
For example Shelton, (n 41) and Vogiatzis, (n 42).
European Convention, (n 2) Art 34.
Ibid, Art 35(2)(a).
Ibid, Art 35(3)(b)).
European Convention, Ibid, Article 34.
See W J Aceves, ‘Actio Popularis – The Class Action in International Law’ 2003 1 University of Chicago Legal Forum 9 <https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1336&context=uclf> accessed 17 October 2024 and L Wildhaber, ‘The European Convention on Human Rights and International Law’ [2004] 56(2) International and Comparative Law Quarterly 217.
ECtHR Practical Court Guide on Admissibility (n 35) para 36.
Aksu v Turkey App nos 4149/04 and 41029/04 (ECtHR, 27 July 2010), (2013) 56 ehrr 4 at para 50.
See for example Norris v Ireland App no 10581/83 (ECtHR, 26 October 1988), (1991) 13 ehrr 186 and Kosa v Hungary App no 53461/15 (ECtHR, 21 November 2017).
See Aceves, (n 54) and Wildhaber, (n 54). An example of actio popularis being denied can be seen from the case of Aksu v Turkey (n 56).
Tanase v Moldova App no 7/08 (ECtHR, 27 April 2010), (2011) 53 ehrr 22 para 104.
ECtHR Practical Court Guide on Admissibility, (n 35) at para 12 citing Mamatkulov and Askarov v Turkey App nos 46827/99 and 46951/99 (ECtHR, 4 February 2005) at pars 100 and 122.
ECtHR Practical Court Guide on Admissibility, (n 35) at para 12.
ECtHR, Rules of the Court, European Court of Human Rights (‘ECtHR Court Rules’), 2023 <https://www.echr.coe.int/documents/d/echr/rules_court_eng> accessed 17 October 2024 at Rule 36(4)(a).
For example Norris v Ireland, (n 57); Genderdoc-M and M.D. v the Republic of Moldova (2013) App no 23914/15 (ECtHR, 14 December 2021).
In the Matter of An Application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland) [2018] uksc 27.
In the Matter of Sarah Jane Ewart [2019] niqb 88.
Dudgeon v UK, (n 4) and Norris v Ireland (n 57).
Ibid.
Absolute rights are rights which allow states no derogation in ordinary circumstances and are contained under Article 2 – 5 European Convention and include Article 2 (right to life), Article 3 (freedom from torture), Article 4 (prohibition of slavery) and Article 5 (right to liberty and security). Absolute rights are also common to other types of international law see Vogiatzis (n 42), 204 and T Meron, ‘On a Hierarchy of International Human Rights’ (1986) 80(1) American Journal of International Law 1.
llhan v Turkey, App no 22277/93 (ECtHR, 27 June 2000), (2002) 34 ehrr 36 discussed by Aceves, (n 54).
Varnava and Others v Turkey App nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90 (ECtHR, 18 September 2009), (2010) 50 ehrr 21 and Khayrullina v Russia App no 29729/09, (ECtHR, 19 December 2017).
Valentin Câmpeanu v Romania App no 47848/08, (ECtHR, 17 July 2014), (2014) 37 bhrc 423; B Rainey, E Wicks and C Ovey, The European Convention on Human Rights (7th edn, oup 2017) 28 – 31.
Aceves, (n 54) at 377 discussing Becker v Denmark App no 7011/75 (ECtHR, 3 October 1975), 4 dr 215 (1975)
See introduction and notes 8, 14 and 15.
ECtHR Practical Court Guide on Admissibility (n 35) para 34.
Qualified rights are rights which states can legitimately interfere with in ordinary circumstances and are contained under Article 8 – 11 European Convention and include Article 8 (right of respect to private and family life), Article 9 (freedom of thought conscience and religion), Article 10 (freedom of expression) and Article 11 (freedom of assembly and association).
European Convention, (n 2) Art 14.
See for example Dzhugashvili v Russia App no 41123/10 (ECtHR, 9 December 2014) and Janko Jakovljevic v Serbia App no 5158/12 (ECtHR, 13 October 2020).
ECtHR Practical Guide on Admissibility (n 35), para 36.
Belli and Arquier-Martinez v. Switzerland App no 65550/13 (ECtHR, 11 December 2018).
Dudgeon v UK (n 4) and Norris v Ireland (n 57).
Ibid.
Klass v Germany App no 5029/71 (ECtHR, 6 September 1978), (1979–1980) 2 ehrr 214.
Johnstone and Others v Ireland App no 9697/82 (ECtHR, 18 December 1986) and Marckx v Belgium App no 6833/74 (ECtHR, 29 September 1975), (1979–1980) 2 ehrr 330.
Open Door and Dublin Well Women v Ireland Apps. nos. 14234/88 and 14235/88 (ECtHR, 29 October 1992), (1993) 15 ehrr 244.
Roman Zakharov v Russia App no 7143/06 (ECtHR, 4 December 2015), (2016) 63 ehrr 17.
European Convention, Art 35(2)(a).
ECtHR Court Rules 2023, (n 62) at Rule 47(1)(a) referring to ECtHR Practical Court Guide on Admissibility 2023 (n 35), para 222.
Rainey, McCormick and Ovey (n 71) at 43.
ECtHR Court Rules 2023, (n 62) at Rule 47(4).
Ibid, Rule 33(2).
European Convention, (n 2) Art 35(1).
Kozak v Poland App no 13102/02 (ECtHR 2 March 2010), (2010) 51 ehrr 16.
J Mizielińska and A Stasińska, ‘Personal Strategies For Overcoming Legal Obstacles: “Families of Choice in Poland” (2013–2015)’ (2024) in C Casonato and A Shuster (eds), Rights on the Move Rainbow Families in Europe Conference Proceedings Trento, 16–17 October 2014, E-published in Italy by Università degli Studi di Trento, Facoltà di Giurisprudenza <http://eprints.biblio.unitn.it/4448/1/Casonato-Schuster-ROTM_Proceedings-2014.pdf> accessed 17 October 2024 at 388.
Ibid.
Alekseyev v Russia (n 10).
K E Feyh, ‘lgbtq Oppression and Activism in Russia: An Interview with Igor Iasine” (2015) 2(1) qed: A Journal in glbtq Worldmaking 100.
Ibid.
L Verpoest, ‘The End of Rhetorics: lgbt Policies in Russia and the European Union’ (2017) 68(4) Studia Diplomatica 3.
Human Rights Watch, Report, ‘License to Harm. Violence and Harassment against lgbt People and Activists in Russia’ 15 December 2014 <https://www.hrw.org/report/2014/12/15/license-harm/violence-and-harassment-against-lgbt-people-and-activists-russia> accessed 17 October 2024.
European Convention, (n 2) Article 35(3)(b).
A Buyse, ‘The Life in the Margins of the Admissibility Criterion in Article 35 § 3 (b) echr’ in BM Leyh, Y Haeck, C Herrera, and D C Garduno (eds) The Realization of Human Rights: When Theory Meets Practice. Studies in Honour of Leo Zwaak (Intersentia 2013) at 3.
Ibid.
Ibid. referring to Council of Europe, ‘Explanatory Report to Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, amending the control system of the Convention’ (2004) <https://www.coe.int/en/web/conventions/full-list?module=treaty-detail&treatynum=194> accessed 17 October 2024 at para 36 and X-B Ruedin, ‘De minimis Non Curat the European Court of Human Rights: the Introduction of a New Admissibility Criterion (Article 12 of Protocol No.14)’ (2008) 1 European Human Rights Law Review 80 at 82.
European Convention, (n 2) Art 35(3)(b).
Hioureas, ‘Behind the Scenes of Protocol no 14: Politics in Reforming the European Court of Human Rights’ (2006) 24 Berkeley Journal of International Law 718 at 75
Buyse, (n 101) at 4.
Ibid. at 4 referring to F Vanneste, ‘A New Inadmissibility Ground’’ in P Lemmens and W Vandenhole (eds) Protocol No. 14 and the Reform of the European Court of Human Rights (Intersentia 2005).
Buyse, (n 101) at 4 referring to Hioureas (n 105) at 751.
ECtHR Practical Court Guide on Admissibility (n 35), para 75–81 and Vogiatzis (n 42) at 201.
European Convention, (n 2) Art 27 and Ibid at para 350.
Buyse, (n 101) at 4 referring to F Hampson, ‘The Future of the European Court of Human Rights’ in G Gilbert, F Hampson and C Sandoval (eds), Strategic Visions for Human Rights; Essays in Honour of Professor Kevin Boyle (Routledge 2012) at 164–165.
Vogiatzis (n 42).
See n 75 for definition.
See n 68 for definition.
European Convention, Art 35(3)(b).
European Convention, Art 14 states ‘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’.
EU Charter of Fundamental Rights (2001) (2000/C 364/01), International Covenant on Civil and Political Rights (1966) (General Assembly Resolution 2299A (xxi).
European Convention Optional Protocol 12 has only been ratified by 20 out of 46 contracting states to the European Convention.
Vogiatzis (n 42) at 204.
S C Greer, ‘The New Admissibility Criterion’’ in S Besson (ed), The European Court of Human Rights after Protocol 14: Preliminary Assessment and Perspectives (Schultess 2013).
ECtHR Practical Court Guide on Admissibility 2023 (n 35), para 378.
Y v Latvia App no 61183/08 (ECtHR, 21 January 2015) at para 44.
Makuchyan and Minasyan v Azerbaijan and Hungary App no 17247/13 (ECtHR, 26 May 2020) paras 72–73.
Zelčs v Latvia App no 65367/16 (ECtHR, 20 Feb 2020) at para 44.
These are the qualified rights under n 75 and include right to private and family life (European Convention, Article 8), freedom for religion (European Convention, Article 9), freedom of expression (European Convention, Article 10) and freedom of assembly (European Convention, Article 11).
Shefer v Russia App no 45175/04 (ECtHR, 13 March 2012).
Obote v Russia App no 58954/09 (ECtHR, 19 November 2019).
ECtHR Practical Guide on Admissibility n 35, para 387; Margulev v Russia App no 15449/09 (ECtHR, 8 October 2019) and Šeks v Croatia App no 39325/20 (ECtHR, 3 February 2022).
For discussion see De Kerf (n 10).
Ilhan v Turkey (n 69).
Vogiatzis (n 42) at 204.
Meron (n 68).
Farkas (n 34) at 181.
Karner v Austria (n 6).
A Harris, ‘Loving Before and After the Law’ (2007–2008) 76 Fordham Law Review 2821; B Cossman, Sexual Citizens: The Legal and Cultural Regulation of Sex and Belonging (Stanford University Press 2006); N Cott, Public Vows: A History of Marriage and the Nation (Harvard University Press 2000) and Diane Richardson, ‘Sexuality and Citizenship’ (1998) 32 Sociology 83.
F Kornbluh, ‘Queer Legal History: A Field Grows Up and Comes Out’ (2011) 36(2) Law and Social Inquiry 537.
See definition of MoA set out in Introduction above by reference to Butler (n 14).
See Introduction.
Handyside v UK (n 16).
Schalk and Kopf (n 8) and F Hamilton, ‘Why the Margin of Appreciation Is Not the Answer to the Gay Marriage Debate’ (2013) European Human Rights Law Review 47.
See the Introduction and Johnson (n 16).
De Kerf (n 10).
Ibid at 44.
J A Brauch, ‘The Margin of Appreciation and the Jurisprudence of the European Court of Human Rights; Threat to the Rule of Law’ (2004–2005) 15 Emory International Law Review 113 at 115.
Hamilton (n 142).
D L Donoho, ‘Autonomy, Self-Governance, and the Margin of Appreciation: Developing a Jurisprudence of Diversity Within Universal Human Rights’’ (2001) 15 Emory International Law Review 391 at 398.
Ibid; J A Sweeney, ‘Margin of Appreciation: Cultural Relativity and the European Court of Human Rights in the Post-Cold War Era’ (2005) 54 International and Comparative Law Quarterly 459; E Benvenisti, ‘‘Margin of Appreciation, Consensus and Universal Standards’’ (1998–1999) 31 New York University Journal of International Law and Policy 843 and Brauch (n 146).
F Hamilton, ‘Same-Sex Marriage, Consensus, Certainty and the European Court of Human Rights’ (2018) European Human Rights Law Review 1361 and de Kerf (n 10).
T Collis and R Varenik, ‘In the European Court of Human Rights, Application No. 53461/15 – Kósa v. Hungary’’ Written Comments of the Open Society Justice Initiative (2016) <https://www.justiceinitiative.org/uploads/5f8ad954-8427-4f8d-813d-d1bd9838adac/litigation-kosa-hungary-thirdparty-20170201.pdf> accessed 17 October 2024, referring to Kosa v Hungary (n 57).
Ibid n 10.
Konstantin Markin v Russia App no 30078/06 (ECtHR, 22 March 2012) para 89.
Farkas, (n 34).
S Fredman, ‘Making a Difference: The Promises and Perils of Positive Duties in the Equality Field’ (2008) European Anti-Discrimination Law Review 6–7.
Farkas, (n 34).
S B Lahuerta, ‘Enforcing EU Equality Law Through Collective Redress: Lagging Behind?’ (2018) 5(3) Common Market Law Review 783 at 790.
Schalk and Kopf (n 8).
See Aceves (n 54) and Wildhaber (n 54).
Wildhaber (n 54).
Aksu v Turkey (n 56).
ECtHR Practical Court Guide on Admissibility (n 35) para 36.
Kosa v Hungary (n 57).
Ibid, para 47.
Esélyt A Hátrányos Helyzetű Gyerekeknek Alapítvány v Hungary App no 41123/10 (25 March 2014).
See Ibid and Roman Zakharov (n 85).
dh and Others v. the Czech Republic App no 57325/00 (ECtHR, November 2007 and Oršuš and Others v Croatia App no 15766/03 (ECtHR, 16 March 2010).
Organisation for Security and Co-Operation in Europe (osce), ‘Use of Actio Popularis in Cases of Discrimination’ (Helsinki Committee for Human Rights, 2016) <https://www.osce.org/files/f/documents/3/1/337191.pdf> accessed 17 October 2024.
See Introduction.