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European Court of Justice Bans Homosexuality Tests for Asylum Seekers

Published on May 1, 2018        Author: 

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Asylum seekers in European Union countries will no longer be subject to psychological tests to prove their homosexuality, according to a decision by the European Court of Justice (ECJ) on 25 January 2018. In F v. Bevándorlási és Állampolgársági Hivatal, the ECJ declared the illegality of the use of psychological reports based on projective personality tests in determining sexual orientation of asylum seekers.

The asylum applicant, a Nigerian man identified as F, sought asylum in Hungary, arguing that he has a well-founded fear of persecution because of his homosexuality. The Bevándorlási és Állampolgársági Hivatal (Office for Immigration and Citizenship of Hungary, hereinafter “Immigration Office”) rejected his asylum application. While the Immigration Office concluded that F’s application was not “fundamentally contradictory,” the Immigration Office found that F’s statement about his homosexuality “lacked credibility” based on one psychologist’s report (para. 22). F appealed this decision to a Hungarian court, and the case was eventually referred to the ECJ.

The “expert report” at issue in the case was produced by a psychologist after an investigative examination, which involved several basic projective personality tests, including the “Draw-A-Person-In-The-Rain” test and the Rorschach and Szondi tests. Upon completing the tests, the psychologist concluded that F’s homosexuality could not be confirmed.

The ECJ ruled that EU law does not prohibit authorities or courts from ordering the production of an expert report to help assess the facts and circumstances relative to an asylum seeker’s claim, but only if the production of the report is consistent with human rights law and the report is not relied upon solely or conclusively. The Court further held that EU law precludes the preparation and use of a psychological expert’s report based on projective personality tests to determine an individual’s sexual orientation when assessing an asylum claim sought by the individual on the ground of sexual orientation. Read the rest of this entry…

 
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Chechnya’s Anti-Gay Purge: Crimes Against Humanity

Published on May 9, 2017        Author: 

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Despite widespread condemnation from the U.N., Council of Europe, E.U., United States, and other countries, a brutal campaign against gay men in Chechnya continues. The abuses take the form of abduction-style detention, enforced disappearances, torture, and killings. Considering the systematic features and the brutality of the abuses, Chechnya’s anti-gay campaign amounts to crimes against humanity, and it demands proper condemnation and response from the international community.

Crimes against humanity, as an international crime, has been defined in various statues and law commissions’ proposals since 1945. They each have their own distinctive feature tailored to the specific historical context during which they were drafted. For example, the Nuremberg Charter and the International Criminal Tribunal for the former Yugoslavia (ICTY) Statute’s definition require the element “in armed conflicts”, while the International Criminal Tribunal for Rwanda (ICTR) Statute requires a discriminatory intent. This note uses the definition in Article 7 of the Rome Statue of the International Criminal Court (ICC): “any of the acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack,” followed by specific acts listed in sub-paragraphs. This definition has been almost entirely adopted by the International Law Commission in its latest version of draft articles on crimes against humanity (note: the proposed draft articles are still in work progress).

Murder, Imprisonment, Torture, Enforced Disappearance, and Other Inhumane Acts

The argument that the Chechnya’s campaign against gay men constitutes crimes against humanity as the criminal acts listed in Article 7.1 (a), (e), (f), and (i) is quite straightforward. There has been credible reporting on abuses committed against gay men in Chechnya, including abduction, imprisonment, enforced disappearances, torture, and killings. All the described abuses have been approved by Chechen local government, with Moscow turning a blind eye to them. In many cases, violations were directly committed by Chechen security forces. Read the rest of this entry…