Wednesday 10 October 2012

Court Condemns Homophobic Treatment in Prisons

For 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. The judgment of X. v. Turkey (available only in French), delivered last week, concerns a young homosexual inmate, convicted for credit card fraud and forgery, who was intimidated and bullied by his fellow prisoners. After he complained to the prison authorities, he was placed in solitary confinement in a very small, dirty cell with rats, normally reserved for prisoners undergoing disciplinary measures or for those accused of paedophilia or rape. For many months he was allowed no contact with anyone but his lawyer and entirely excluded from the shared areas of the prison nor any access to outdoor exercise. According to the authorities this was done for his own safety. As a result of this treatment the applicant started to suffer from depression.

In deciding the case, the Court recalled that Article 3 ECHR obliges states to ensure that all detainees are kept in conditions compatible with respect for human dignity. In deciding whether the threshold of inhuman or degrading treatment is reached, the Court took into account that the solitary confinement lasted for over eight months in total. It emphasized that, in addition to the appalling conditions in the cell and its very small size, certain aspects of the detention cicrumstances - in particular the total lack of contact with other inmates and the total lack of access to open air - were even more severe than for people serving life sentences in Turkey. The fact that no effective remedy existed for the applicant, in spite of his numerous complaints to the authorities, was in the Court's view an aggravating factor. Taken together this caused mental and physical suffering for the applicant of a level which profoundly affected his human dignity. Even if the protection of the applicant for harasssment by his fellow inmates could have been the incentive for the measures, this alleged concern to protect him did not justify these measures of total exclusion from the shared areas in the prison.

The Court also found a violation of the prohibition of discrimination (Article 14 ECHR) in conjunction with Article 3 ECHR. Sexual orientation, although not explicitly mentioned in Article 14 as a prohibited ground of difference in treatment, has been recognised by the Court as such (under "other status") in earlier case-law. When differences in treatment are based on sexual orientation the margin of appreciation for states is narrow. In this new judgment the Court built on these principles and held that states have the obligation to take all possible measures to ascertain whether or not a discriminatory attitude (on the part of the prison authorities) had played a role in placing him in solitary confinement. In this case, an adequate risk assessment had not been made at all. Rather, the authorities - as the Court implicitly makes clear by describing their attitude - displayed prejudice. The person deciding on whether the detention circumstances had to be changed, after the applicant had complained about them, stated that his solitary confinement was preventive, since no risk could be taken that a transvestite [sic!] would be lynched. The European Court concluded that the applicant's sexual orientation rather than mere preventive concerns about his safety had been the main reason for keeping him in solitary confinement. Thus, he had suffered discrimination on the basis of sexual orientation for which no justification had been put forward. On the last finding, the Lithuanian judge, Jočienė, dissented. She argued that discriminatory intent could not be inferred from the facts of the case.

The judgment is an important development in the Court's case-law, finding as it does that issues relating to sexual orientiation can be pertinent to an Article 3 violation. It also indicates that when authorities try to protect a prisoner against harassment by fellow prisoners, the effect should not be to de facto punish the alleged victim rather than the bullies. Measures taken should be proportionate to the aim of protection. As the Court found, a risk assessment should take place. The judgment also points at the very problematic prejudicial attitudes existing among some state authorities in Turkey (but certainly not only there!) relating to sexual orientation.

See also the very incisive and informative contextualisation given by Paul Johnson of the University of York in his analysis of the judgment here. His book which surveys the Court's jurisprudence on homosexuality, which I highlighted here, is now available.