Gabriel Swain is Research Associate, School of Social Policy, Sociology and Social Research, University of Kent. Previously, he worked as a researcher for the Council of State Governments, a US-based public policy think tank, where he wrote on topics including climate change, natural resource policy, energy policy and federalism.
The margin of appreciation doctrine of European Court of Human Rights (ECtHR) gives states flexibility in their interpretation of the European Convention on Human Rights (the Convention). States also have the freedom to decide how they implement judgments finding violations against them. This means that individuals in each Council of Europe (CoE) member state experience rights protection and abuse in often quite different ways. The JURISTRAS project, which began in 2006 with a grant from the EU Sixth Framework Programme, has sought to shed light on that variation by analyzing the various relationships between the ECTHR and domestic human rights actors (both governmental and non) in CoE member states.
Our research initially focused on the protection of the core civil liberties (i.e. ECtHR Articles 8-11 & 14: right to private and family life; freedom of thought, conscience and religion; freedom of expression; freedom of association; freedom from discrimination), but was expanded to include any situation in which an individual’s inclusion in a minority or vulnerable group caused her rights to be infringed. Research questions that drove the initial research design included: How are judgments that find a country in violation of the Convention implemented in that country? What factors influence the effectiveness and speed of judgment implementation? Which groups have experienced rights abuses in the most direct ways? Which groups, if any, have been able to use the ECtHR as a tool, and have litigated strategically in order to bring about policy reform?
A number of interesting issues arose with an analysis of the United Kingdom’s protection of the rights of minority and other vulnerable groups. Perhaps most interesting is the extent to which various groups are (or are not) successful in winning cases, which factors contribute to that success, and which groups are likely to see violations translated into policy reforms that favour their group’s interests, and why. There is a substantial variation in the answers to those questions, and to highlight the difference and help explain the reasons behind it, we can first look at cases brought against the UK by homosexuals and transsexuals, who have managed to use the Court to change discriminatory policies that directly affect them. We can then turn our attention to victims of wrongful death and illegal imprisonment in Northern Ireland and gypsies in the UK as examples of groups that have been largely unsuccessful at utilizing the Court to their advantage.
Homosexuals have a substantial history of successfully bringing cases against the UK. Our research suggests that, the success of the homosexual and transsexual communities in the ECTHR was made possible by high levels of organization and the extent to which they were able to mobilize support from civil society. But as will be explained below, civil society support of a group’s cause, itself, is not sufficient to achieve the types of policy reform that those two groups saw. I consider below, the key cases against the UK involving homosexual rights, highlighting the support from civil society.
The case of Dudgeon v. UK (no. 7525/76), in 1981, was the first high profile case brought against the UK involving homosexual rights. The ECtHR found that the criminalisation of homosexual relationships in Northern Ireland violated the Convention and the government responded with the Homosexual Offences (Northern Ireland) Order 1982, which legalised those relationships. The 1997 case of Laskey, Jaggard and Brown v. UK (nos. 21627/93; 21826/93; 21974/93) involved, among other complaints, a claim that different legal ages of consent for homosexuals and heterosexuals, was discriminatory. The applicants in this case were supported by a third party intervention by New York-based Rights International, and while no violation was found, the case was successful in raising awareness of the age of consent issue, which would arise again in cases brought against the UK. The issue was again dealt with by the Court in its 2004 decision in the case of B.B. v. UK (no. 53760/00). The applicant, who had been arrested for engaging in a sexual relationship with a person aged 16 years, alleged discriminated against him as a homosexual since the legal age of consent for heterosexuals was 16 years. The Court found a violation of Article 14 (freedom from discrimination). The case was closed when the CoE Committee of Ministers was satisfied that the Sexual Offences (Amendment) Act 2000 constituted an adequate implementation of the Court’s judgment.
Two cases in 1999, Lustig-Prean and Becket v. UK (nos. 31417/96; 32377/96) and Smith and Grady v. UK (nos. 33985/96; 33986/96), involved former military personnel who were discharged from service because of their sexual orientation. Legal representation for the applicants was arranged by Stonewall – a London-based gay, lesbian and bisexual rights NGO- and this organizational support helped lead the applicants to a victory in Strasbourg, as the Court found the UK in violation of Article 8 (private and family life). The UK responded with the introduction of The Armed Forces Code of Social Conduct Policy Statement, which ended the ban on gays serving in the military. Two additional cases, Perkins and R v. UK (nos. 43208/98; 44875/98) and Beck, Copp and Bazeley v. UK (nos. 48535/99; 48536/99; 48537/99), involved applicants bringing similar claims of discrimination based on discharges from British military service. Violations were found in both cases.
Transsexuals have experienced similar success in cases brought against the UK. These cases have typically involved transgender applicants claiming that the state’s refusal to grant them official recognition as their new gender was discriminatory and violated Article 8. And as in most cases brought by homosexuals, applicants in transsexual cases often were supported by NGOs. The judgment in the first notable transsexual case, X, Y, and Z v. UK (no. 21830/93) was finalized in 1997 and the case was supported by Rights International. Although the applicants were unsuccessful in influencing the Court to issue a violation, they succeeded in raising awareness of their issue in the Court. Sheffield and Horsham v. UK (nos. 22985/93; 23390/94), in 1998, involved applicants bringing similar complaints. Again the applicants were unsuccessful, but they managed to get London-based human rights NGO, Liberty, involved, a move that would facilitate success in later claims made against the UK by transsexuals.
Liberty is easily the most active British NGO with regard to the ECTHR; it has represented numerous applicants before the Court and has also submitted third party interventions in many cases. In 2002 Liberty supported two cases (I v. UK (no. 25680/94) and Christine Goodwin v. UK (no. 28957/95)) brought by transsexuals against the UK succeeded in persuading the Court that the UK was in violation of Article 8. In response to these violations the UK government introduced the Gender Recognition Act 2004, which allowed post-surgery transsexuals to receive official documents that identified them as their new gender.
For comparison, we can look at two groups that mobilised organizational support but either did not see policy reform follow violation judgments (as was the case with victims of illegal imprisonment and wrongful death in Northern Ireland), or were unable to influence the Court to find violations in the first place (as was the case with gypsies).
A number of applicants have brought cases against the UK complaining of illegal imprisonment and wrongful death by Northern Irish security forces during the troubles there. In 1996, John Murray v. UK( no. 18731/91) involved an applicant claiming that he was denied access to a solicitor while being detained for involvement in IRA activities. The case was supported by an array of NGOs, including Amnesty International, JUSTICE, Liberty, British Irish Rights Watch, and the Committee on the Administration of Justice. This abundance of organizational support helped the applicant win a violation judgment.
This was followed in 2001 by four cases (Hugh Jordan v. UK (no. 24746/94); McKerr v. UK (no. 28883/95); Shanaghan v. UK (no. 37715/97); Kelley and Others v. UK (no. 30054/96)) which involved applicants bringing claims of wrongful death against the UK on behalf of deceased relatives. The Northern Ireland Human Rights Commission supported all four cases, and all four saw the Court find violations of Article 2 (right to life). The Court also found that the UK liable for failing to carry out adequate investigations into these deaths.
There have been subsequent instances in which applicants brought cases relating to ill treatment by Northern Irish security forces, and many have convinced the Court to find violations of the Convention. Yet many of these cases remain open, which is to say that the UK government has not yet adopted implementation measures that satisfy the CoE Committee of Ministers. This highlights the different outcomes that result from cases enjoying high levels of organizational support. The difference in this case can most likely be explained by the fact that when issues of national security are involved, applicants face a much harder time achieving compensation for rights abuse. Whereas implementing the homosexual and transsexual cases simply entailed passing legislation that would have few further political implications, implementing the Northern Ireland security forces cases proved to be very politically sensitive, which is why implementation is still outstanding. Yet, implementation is bound to be achieved eventually, since a violation was issued, still, some groups fail to get even that far.
Marginalized groups may be unsuccessful in convincing the Court their rights have been violated if they have little support from civil society, or indeed from society in general. Gypsies fit this description. In 2001, five cases (Chapman v. UK (no. 27238/95); Beard v. UK (no. 24882/94); Coster v. UK (no. 24876/94); Lee v. UK (no. 25289/94); and Jane Smith v. UK (no. 25154/94)) were brought by gypsies who claimed they had been denied various rights relating to their culturally-driven desire to occupy plots of land with their caravans. Despite third party interventions by the European Roma Rights Centre, none of these cases won a violation judgment from the Court. Aside from the European Roma Rights Centre, NGO support for gypsies is scant, and their level of organization as a group is quite underdeveloped, factors which are crucial in determining the ultimate success of a group’s cases before the Court.
Analysing the four groups considered above, each of which received support from qualified human rights organizations, highlights the variation in potential outcomes a group can expect when seeking to strategically litigate in Strasbourg. While organizational support undoubtedly gives applicants an obvious advantage and quite often contributes to the Court finding a state in violation, it cannot be expected to have such an impact on the implementation measures a state adopts in response to those judgments. To a certain extent, a high level of organizational support translates to a high level of societal support for a group’s cause, as was the case with homosexual rights in the UK. On the other hand, lower levels of organizational support often mean a group lacks support from society in general, as is the case with gypsies in the UK. That level of societal support impacts a state’s motivation to implement a judgment with more meaningful measures, as can be seen with the various pieces of legislation passed in response to the homosexual and transsexual cases. Political sensitivity also plays a substantial role in determining a government’s dedication to resolving violation judgments, as is now the case with the outstanding cases regarding security forces in Northern Ireland.
While a number of factors come to influence, to a greater or lesser extent, the likelihood of an applicant’s success before the Court, as well as the manner in which violation judgments are executed in individual cases, there will always be unexpected variables that affect these outcomes. Nevertheless, the importance of organizational support of ECTHR applicants should be underscored, for it has repeatedly contributed to the success of applicants in cases brought against the UK. Indeed, the UK has the highest number of human rights organizations active in supporting cases in the ECTHR, and prospective applicants would do well to employ their services when considering applying to the Court.
Much similar research has been carried out on the other eight countries analysed in the JURISTRAS project (Austria, Bulgaria, France, Germany, Greece, Italy, Romania, and Turkey). A variety of research reports analysing aspects of interactions between these states and various domestic human rights actors, as well as six topical comparative analyses, can be found on the JURISTRAS website. To learn more visit http://www.juristras.eliamep.gr/.