X v Turkey  ECHR 24626 (9 October 2012)
The European Court of Human Rights established that the applicant, a Turkish homosexual man detained in view of prosecution for fraud-related crimes, had his rights violated by Turkish authorities when he was placed in solitary confinement because of his sexual orientation. The Court found that the unsanitary conditions of the cell, combined with the isolation of the confinement, where the detainee was prohibited from accessing the courtyard for walks or interacting with other prisoners in any way, amounted to a violation of article 3 of the European Convention of Human Rights prohibiting torture, degrading and inhumane treatment. The Court furthermore found that the principal reason for this inhumane and degrading treatment was the detainee’s sexual orientation, amounting to a violation of article 14 combined with article 3, where article 14 stipulates that the rights and freedoms of the Convention must be secured without any discrimination.
The applicant was being held in pre-trial detention where he was put in a cell with other inmates. He made a request to be moved because he was feeling harassed and humiliated by those inmates because of his sexual orientation. The guards then moved him to a 7m² individual cell where he had access to a bed and toilet (but no washbasin). He was not permitted to leave this cell except for monthly detention hearings and meetings with his lawyer. He repeatedly requested to be treated equally with other detainees by being allowed to go on daily walks on the grounds and partake in other normal social activities in the prison. The prison authorities maintained that his solitary confinement was not a punitive measure but a means to ensure his physical integrity and safety. The reviewing judge repeatedly maintained that this matter fell within the discretionary powers of the penitentiary authorities. The applicant was finally taken to a psychiatric institution that established that he was suffering from depression and psychiatric problems related to his homosexuality. He was returned to the detention centre and briefly shared his cell with another homosexual inmate that was then moved. He then continued to be kept in solitary confinement until he was moved to another detention centre. In total, he was detained alone for more than eight and a half months.
The Turkish Government maintained that the isolation was not only lawful under domestic provisions, but furthermore was necessary to ensure the safety of the applicant, who by his own accord was being harassed and intimidated because of his homosexuality.
The Court found that although the applicant had indeed complained of harassment and requested to be moved from his original cell, this was not sufficient to justify his solitary confinement in conditions more dire than those of prisoners condemned of, rape, paedophilia, or violent crimes warranting a prison sentence of 30 years and more. The Court established that Turkey had violated the applicant’s right to be free from inhumane and degrading treatment, and that furthermore Turkey had violated this right by discriminating against the applicant because of his sexual orientation.
Commentary: Importance of the decision for homophobic discrimination
This decision by the European Court of Human Rights potentially opens a new area of litigation for discrimination based on sexual orientation resulting in inhumane and degrading treatment. Because article 14 is not an autonomous article, the Court has to find that the State party’s discrimination towards an individual resulted in the violation of a right guaranteed by the Convention. The Court’s case law on article 14 has slowly been evolving, but it still remains rare that the Court will rule that a violation of the Convention was a result of discrimination. Thus far the Court has refused to establish inhumane or degrading treatment as a result of discrimination on the basis of sexual orientation.
According to Paul Johnson, author of Homosexuality and the European Court of Human Rights, this recent decision by the Court to recognise the applicant’s complaint under article 14 acknowledges that individuals in detention suffer serious forms of discrimination due to their sexual orientation and that homosexual men and women can be subject to treatment that humiliates and debases them, causing them severe psychological and physical harm.
Mr Johnson hopes that this decision will serve as a stepping stone towards further evolution of the Court’s case law recognising that homophobia, which remains widespread in many contracting states, regularly violates the right to be free from degrading treatment guaranteed by article 3 of the Convention. Degrading treatment towards homosexuals could include references to homosexuality as a disease or equating it with sexual depravity, drawing parallels with child molestation. Violations of article 3 could likewise result from the physical and psychological distress that occurs when a person’s sexual orientation leads to the termination of their employment, the denial of the right to assemble and associate, or the refusal of goods and services.
Even if this case does not result in the evolution Mr Johnson calls for, it nevertheless sets an important precedent in the evolution of the use of article 14. Contracting parties will now have to be even more weary of any difference of treatment resulting from an individual’s sex or sexual orientation (the Court has repeated that the margin of appreciation of States in these areas is narrow) as they could now be facing a double condemnation under article 14 and another right guaranteed by the Convention.
Candice Van Doosselaere is a volunteer at the Human Rights Law Centre.