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LITIGATION AND ADVICE
TRAINING: BUILDING CAPACITY
OTHER PROJECTS
LITIGATION AND ADVICE
Landmark Fiji High Court Case Invalidates Laws Criminalising Homosexual Sex
On 26 August 2005, the High Court of the Fiji Islands in Nadan and McCoskar v The State declared unconstitutional two provisions of the Fijian Penal Code criminalising private consenting sexual contact between men. In early 2005 Nadan and McCoskar were convicted under sections 175(a) and (c) and 177 of the Fiji Penal Code for having "carnal knowledge against the order of nature" and sentenced to two years' imprisonment. They appealed their convictions to the High Court. INTERIGHTS provided the appellant’s lawyer, Natasha Khan, with comprehensive advice on international and comparative law relating to equality and privacy. The advice noted the trend internationally towards decriminalisation of gay sex, the way in which such criminalisation impacts on international equality guarantees and its relationship to the protection of private life. The case was the first to test the constitutional protection against sexual orientation discrimination in the Fiji Islands. Fiji's Department of Public Prosecutions will be appealing the case in the Court of Appeal.
For a full summary, click here. For a copy of the judgment, click here.
On 7 July 2005 the Grand Chamber of the European Court of Human Rights affirmed in substantial part its first ever finding of racial discrimination in breach of Article 14 of the European Convention of Human Rights in the case of Nachova v Bulgaria. The Court's ruling makes clear that European states have an obligation to investigate possible racist motives behind acts of violence.
In holding that the Bulgarian government's failure to investigate the fatal police shooting of two Romani men infringed the European Convention, the Court observed:
"Racial violence is a particular affront to human dignity and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction. It is for this reason that the authorities must use all available means to combat racism and racist violence, thereby reinforcing democracy's vision of a society in which diversity is not perceived as a threat but as a source of its enrichment."
The case concerns the allegedly racist killing of two Roma youth by state officials in Bulgaria. In February 2004, a chamber of the Court held a violation of the applicants' right to life and, in a landmark finding, their right to non-discrimination under Article 14 of the Convention. It was the first time that the Court had found a violation of Article 14 in conjunction with the right to life. Upon the request of the Bulgarian authorities, the case was deferred to the Grand Chamber of the Court for reconsideration. Third party written submissions were filed by INTERIGHTS, the European Roma Rights Centre, and the Open Society Justice Initiative.
INTERIGHTS’ submission argued that discrimination cases, by their nature, erect serious and often insuperable barriers to proof. It was submitted that the Court's qualified 'beyond reasonable doubt' standard of proof is inappropriate in a human rights context and provides too great an evidentiary obstacle for applicants. An alternative standard, such as the lower 'balance of probabilities' test – adopted successfully in other jurisdictions – would provide enhanced protection for victims, while still guarding against wrongful findings against states. The submissions further urged the Grand Chamber to confirm that a shift in the burden of proof should occur as
a matter of course once a prima facie case is established, which may be based on strong, clear and concordant inferences drawn from circumstantial evidence.
The Grand Chamber upheld the February 2004 panel ruling that Bulgaria had breached the victims' right to life under Article 2 of the Convention in two ways: by failing to adequately regulate the use of firearms by military police, and by failing to properly investigate the young men's deaths.
In addition, the judgment also affirmed in part the earlier finding of racial discrimination in breach of Article 14. In doing so, it broke new ground in European human rights law.
The Grand Chamber unanimously held that the prohibition of discrimination under Article 14 has a procedural component, which required the state to investigate whether discrimination may have played a role in the killings. The failure to do so in this case, despite indications of racial motivation, amounted to discrimination. The judgment affirmed several important principles that should guide domestic authorities in future cases involving violence arguably motivated by racial hatred. These include the following:
- Acts of racially induced violence and brutality are "particularly destructive of fundamental rights."
- Where there is suspicion that violence is racially motivated, "it is particularly important that the official investigation is pursued with vigor and impartiality."
- When investigating violent incidents and, in particular, deaths at the hands of state agents, "State authorities have the additional duty to take all reasonable steps to unmask any racist motive and to establish whether or not racial hatred or prejudice may have played a role in the events." In this respect, regard should be had, "to the need to reassert continuously society's condemnation of racism and ethnic hatred and to maintain the confidence of minorities in the ability of the authorities to protect them from the threat of racist violence."
- Failure to accord such incidents the investigative care required may constitute unjustified treatment at odds with Article 14 of the Convention.
- Where evidence of racist verbal abuse being uttered by law-enforcement agents in connection with an operation involving the use of force against persons from an ethnic or other minority comes to light in the investigation, it must be verified and - if confirmed - a thorough examination of all the facts should be undertaken in order to uncover any possible racist motives.
- The positive duty on the authorities is to "do what is reasonable in the circumstances to collect and secure the evidence, explore all practical means of discovering the truth and deliver fully reasoned, impartial and objective decisions, without omitting suspicious facts that may be indicative of racially induced violence."
With respect to the killings themselves, the Grand Chamber, by an 11-6 vote, overturned the prior ruling that they had been motivated by racial hatred. In doing so, the Grand Chamber elaborated the following principles concerning the standard and burden of proof:
- The "beyond reasonable doubt" standard of proof for determining whether a state has violated the European Convention is distinct from standards employed in national legal systems to rule on criminal guilt or civil liability.
- In proceedings before the Court, "there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment." Instead, "the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof, are intrinsically linked to the specificity of the facts, the nature of the allegations made, and the Convention right at stake."
- In certain circumstances, where the events lie wholly, or in large part, within the exclusive knowledge of the authorities, the burden of proof may be regarded as resting on the authorities to provide a satisfactory explanation. In cases of discrimination, the Court may require the respondent government to disprove an arguable allegation of discrimination and "if they fail to do so" find a violation of Article 14 of the Convention on that basis.
However, the Grand Chamber declined to reverse the burden of proof in this case, where it was alleged that a violent act was motivated by racial prejudice. Reversing the earlier panel decision, the Grand Chamber held that the authorities' failure to carry out an effective investigation did not justify shifting to the government the burden of proof on the issue of discrimination. Six judges dissented from the majority's finding of no substantive violation of Article 14, finding that the government's conduct taken as a whole disclosed a breach of Article 14.
Read INTERIGHTS’ brief here and the full text of the Court’s judgment here.
On 11 November 2004, the Fiji Court of Appeal in Seremaia Balelala v The State ruled down the requirement for corroboration of evidence in rape trials in the Fiji Islands. Until this decision, Fijian courts had required alleged victims of rape to provide additional evidence of the crime, beyond their word. In the words of the Court, this requirement was based on 'a generalisation that female evidence in such cases is intrinsically unreliable'.
The challenge to the corroboration requirement was brought by Daniel Goundar of the Fiji Department of Public Prosecutions (DPP), a participant at the Interights and Fiji Human Rights Commission lawyers' training on equality and international law held in Suva in August 2004. INTERIGHTS' Equality Programme provided the DPP with comprehensive advice on the incompatibility of corroboration requirements with international law on gender equality. Based on this advice, the DPP argued that in their reliance on 'rape myths' about women's experience of rape and the additional evidentiary burden they create for victims, corroboration requirements are
contrary to gender equality guarantees in the Fiji Constitution as interpreted in light of international and comparative law. The Court concluded that the practice of corroboration should be repealed 'not only by reason of the fact that it represents an outmoded and fundamentally flawed view, but also by reason of the need to give full force and effect to the constitutional principle of equality before the law'.
The judgment represents a critical juncture in the development of Fijian jurisprudence on gender equality. It brings Fiji into line with an increasing majority of jurisdictions that reject corroboration requirements, which are understood to undermine raped women's access to justice and demean them in the criminal justice system.
For more information on any of these matters please contact the Legal Officer for Equality Andrea Coomber at: acoomber@interights.org
Indirect Discrimination Against Roma Schoolchildren: Brief before the European Court
On 11 June 2004, INTERIGHTS and Human Rights Watch submitted an amicus brief to the European Court of Human Rights in the case of DH and Others v the Czech Republic. The case concerns discrimination on the basis of race in school placement. In particular, the case alleges the discriminatory assignment of Roma to �special schools� for intellectually disabled children, as a result of which practice, disproportionate numbers of Roma children are denied opportunities for further schooling, employment and professional advancement, and personal development. The case raises critical questions regarding the interpretation of Article 14 of the European Convention on Human Rights.
In recent years, the European Court has recognised that discrimination can occur when a general policy or measure has a disproportionate, prejudicial effect on a particular group, even if such an effect was not intended. This acknowledgement of indirect discrimination has marked a watershed in the development of the Court�s Article 14 jurisprudence, however the Court has not yet indicated how such discrimination might be demonstrated by applicants. The brief outlines ways in which courts in other jurisdictions allow for indirect discrimination to be proved, and the critical role of statistics in this regard. It is argued that international and comparative practice supports the conclusion that the Court should give due regard to credible statistical evidence when considering indirect discrimination cases.
Appended to the brief are expert opinions from four jurisdictions--Australia (John Basten QC and Kate Eastman), United Kingdom
(Dinah Rose and Claire Weir), Canada (Paul Schabas) and South Africa (Gilbert Marcus SC)--selected on the basis of their
experience in applying and developing the principles of indirect discrimination. The brief also calls heavily on developments
within Europe, particularly directives of the European Community and the case law of the Court of Justice of the European
Communities.
As of May 2005, the European Court of Human Rights is deferring consideration on the admissibility of the claim
with respect to discrimination in the provision of education.
Read the Court's admissibility decision here.
Right of Same-Sex Couples to Marry: Controversial Case against Massachusetts Dept of Health
INTERIGHTS is one of 15 international human rights organisations that have signed on to an amicus brief responding to a request from the Senate of Massachusetts for an advisory opinion on the right to equality for same-sex couples. Click here to read the brief. To read the full text of the Court's advisory opinion to the Senate, click here, and to read the opinion on the case of Goodridge et al v Department of Public Health which preceded the current opinion, please click here. You can also find the brief here.
Lawrence v Texas: Landmark Decision to Overturn Criminal Sodomy Laws
In a landmark decision six-three (one Justice concurring) delivered on 26 June 2003, the US Supreme Court struck down criminal sodomy laws in Texas. The Court overturned its 1986 decision in Bowers v Hardwick, which had held that the constitutional guarantee of the right to privacy did not fully extend to same sex partners. Lawrence v Texas has declared the right to liberty under the Due Process clause of the 14th Amendment of the US Constitution includes the freedom for all individuals to engage in private sexual conduct without government intervention.
The decision is viewed as a momentous achievement for gay rights, largely because it has located the sexual rights of same sex couples in the Due Process clause of the 14th Amendment. The Court could have alternatively struck down the Texas statute as a violation of the Equal Protection clause of the 14th Amendment , which would have prevented the ban on homosexual sodomy only to the extent that such a ban did not apply equally to heterosexual sodomy. The Court would thus have abided by its judgment in Bowers. In her concurrence, Justice O�Connor , the only member of the present court to rule with the majority in the Bowers decision in fact declined to overturn Bowers and argued for striking down the Texas statute based on the Equal Protection clause. By locating the private, consensual sexual activities of all within the Due Process clause of the 14th Amendment, the Court held unconstitutional any legislation that seeks to limit such intimacy.
In addition to powerfully protecting the right to privacy, the judgment provides a significant boost to the use of comparative human rights law. The majority opinion cited , for the first time ever , a case decided by the European Court of Human Rights. The majority invoked the 1981 case of Dudgeon v United Kingdom asan indication that Western values are not anathematic to fully protecting the right to privacy for same sex partners. The majority also cited an amicus brief submitted by Mary Robinson et al ., whose amici included Interights and which adopted a comparative human rights approach. Such unprecedented reference to comparative law by the Court did not go unnoticed by Justice Antonin Scalia, who in his dissenting opinion termed reliance on foreign views as �dangerous� and �meaningless�.
Read the amicus brief to which Interights contributed here and the judgment of the Supreme Court here.
Advice during 2004
Advice to lawyers representing the applicant in Asmundsson v Iceland before the European Court of Human Rights concerning disability discrimination in respect of the provision of pensions. Research assistance was provided by the Harvard Law School�s Human Rights Programme. As of August 2004 INTERIGHTS is awaiting the decision of the European Court.
Read the Court's original admissibility decision here.
Advice to Spanish lawyers on applicability of the ECHR to a migrant woman in Spain. Advice related to the admissibility and merits of a case on the basis of Articles 3, 5 and 14 of the ECHR
Advice to a Fijian High Court judge on comparative jurisprudence with respect to the necessity for collaboration of evidence in rape trials.
Advice to the Women�s Lobby, Kosovo on the draft gender equality law for Kosovo. The draft is now being considered by parliamentarians.
Advice to the Equal Opportunities Commission in Hong Kong on the legality of a proposal to exclude Mainland Chinese in Hong Kong from the island�s proposed anti-discrimination law.
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TRAINING: BUILDING CAPACITY
Training for the Women’s Human Rights Institute
INTERIGHTS staff acted as experts at a training on international human rights law and mechanisms at the fourth in a series of trainings of a group of women’s human rights lawyers. Held in Bulgaria in October 2005, this session focused on hypothetical cases before the European Court of Human Rights concerning domestic violence and trafficking. Issues discussed included discrimination, freedom from inhuman and degrading treatment and the right to private and family life. The event was attended by 18 participants working in women’s human rights across Central and Eastern Europe and the former Soviet Union, and was organised by the Bulgarian Gender Research Foundation and the Center for Reproductive Rights, New York.
In October 2004, the Equality Programme provided expertise on the European Convention and Court of Human Rights at the Women's Human Rights Training Institute in Sofia, Bulgaria. Organised by The Network of East-West Women (NEWW) and the Bulgarian Gender Research Foundation, the Institute brings together practising lawyers with a demonstrated commitment to gender and women's human rights. The Institute aims to further the development of jurisprudence on women's human rights, through the capacity building of lawyers, the articulation of regional and country level litigation strategies and the strengthening of strategic relationships between the women's human rights litigation community and mainstream human rights groups undertaking human rights litigation in CEE/fSU.
The Institute will be convened every six months and include the same group of participants throughout the two-year project period. Specific litigation activities will be both continued and launched by participants between the Institute sessions, supported by NEWW, its partner organisations (including INTERIGHTS), and the Institute's expert committee. In terms of substantive issue areas, the Institute will focus on violence against women, reproductive rights and sexual health and employment discrimination. INTERIGHTS' ongoing involvement in the Institute reflects its commitment to capacity building and the development of strategic litigation of women's human rights in the CEE/fSU region.
Local lawyer Yonko Grozev from the Bulgarian Helsinki Committee conducting a session at the Women's Human Rights Institute
This programme – held in the Netherlands in partnership with the Netherlands Helsinki Committee – trains experienced English-speaking lawyers from throughout CEE and the fSU, on the substantive international law relating to minority rights and discrimination and on the potential to litigate these before the European Court of Human Rights. Over a three-year period (2002–05), five training sessions are being conducted, each of two weeks' duration.
The training sessions combine presentations on international standards, small group analysis of cases, and litigation workshops. The goal of the training is to equip the participants with knowledge of how to use the international instruments and jurisprudence on non-discrimination in their daily practice. The main emphasis is on litigation strategies and goals, but attention is paid also to non-contentious advocacy strategies to ensure lawyers are aware of other avenues of helping their clients' causes. Each session has 20 participants, about a third of them judges and two thirds advocates, selected through a competitive process.
Three of the five training sessions have now been held, involving practising lawyers and judges from across CEE and the fSU, including Albania, Bulgaria, Czech Republic, Estonia, Hungary, Moldova, Poland, Romania, Russia, Serbia and Montenegro, Slovakia, and Ukraine. The fourth session was held from 22 November – 3 December 2004. Click here for latest news from the CEE Programme.
Participants at the fourth Non-Discrimination and Minority Rights training session in November 2004 holding their completion certificates
Administrator Lawyers� Training Programme in Equality and Non-Discrimination Held in Fiji Administrator
Following the highly successful judicial training programme in international and comparative human rights law held in 2003 in Fiji, INTERIGHTS� legal officers with the Fiji Human Rights Commission (FHRC) facilitated a two-day programme of practical training in international and comparative human rights law, with a particular focus on equality and non-discrimination.
Attended by 20 local lawyers, NGO and government workers from 11�12 August 2004, the workshop introduced the participants to the key provisions of international human rights law, both civil and political rights and economic, social and cultural rights. Participants were invited to examine the human rights provisions in their own Constitution and their relationship to international law.
The right to equality is entrenched in section 38 of the 1988 Fiji Constitution (as amended 1997). On the second day of the programme, INTERIGHTS and FHRC legal officers discussed local equality and non-discrimination issues and law, framing them in the context of the international instruments and comparative jurisprudence to which Fijian lawyers have recourse. Throughout the two-day session, participants took part in break-out exercises where they focused on how international law could be applied in practice to cases on which they are working.
Feedback from the event has been very positive, with some participants already taking equality cases forward in which they will interpret constitutional provisions in light of international law. All participants agreed to be part of a new human rights network, to be facilitated by the FHRC.
Equality Programme Training Activities in Late 2003
On 8�9 November 2003, INTERIGHTS� legal officers gave a workshop on the European Convention on Human Rights (ECHR) to students of Harvard Law School. Following a brief introduction to the ECHR, the European Court of Human Rights and its procedures, the programme centred on consideration of a hypothetical case. Students worked in two groups: representatives of the applicant and of the respondent government. Equality Law Officer Andrea Coomber facilitated the applicants� preparation on a hypothetical concerning Articles 8 and 14 of the ECHR.
Andrea Coomber was an expert at the Practical Training on Non Discrimination and Minority Rights for CEE/fSU Lawyers (Soesterberg, Netherlands, 24 November�6 December). The training is organised jointly by INTERIGHTS� CEE Programme and the Netherlands Helsinki Committee. The goal of the training was to equip the participants with knowledge of how to use the international instruments on non-discrimination in their daily work. Andrea Coomber presented on the UN mechanisms (both Charter and Treaty-based) concerned with discrimination, with a hypothetical on discrimination against women and migrant workers.
Andrea Coomber was a trainer at a two-day workshop on the protection of women�s sexual and reproductive rights and the ECHR. The workshop brought together activists and lawyers working with the ASTRA network, the leading network of NGOs concerned with sexual and reproductive rights in CEE/fSU (http://www.astra.org.pl).
Transnational Workshops on Implementing European Anti-Discrimination Law
As part of the Implementing European Anti-Discrimination Law project, INTERIGHTS, with partners European Roma Rights Center (ERRC) and Migration Policy Group (MPG), held a two-day workshop in October 2003 which examined ways to assist the European legal and NGO community to undertake strategic litigation to implement the Race Directive, and other relevant legal instruments in the area of race discrimination in Europe. Twenty leading race discrimination experts from across Europe met and identified key challenges for the implementation of the Directive, appropriate means to litigate these issues and ways in which litigation might dovetail with other strategies for change. They canvassed the type of cases we need to identify and put to the courts including discrimination in access to education, housing, employment and also looked at the challenges of arguing this type of case including the burden of proof, admissible evidence and indirect discrimination. On the basis of workshops, participants devised strategies to push forward race litigation in regional and international forums.
The substantial background papers prepared for the Litigation Strategy Workshop and the workshop output have been published as a Litigation Manual for practitioners in the region.Click here for more information on how to order a copy or download a PDF version.
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OTHER PROJECTS
IMPLEMENTING EUROPEAN ANTI-DISCRIMINATION LAW
Implementing European Anti-Discrimination Law is a three-year project, conducted jointly by the European Roma Rights Center (ERRC), INTERIGHTS, and Migration Policy Group (MPG). The Project aims to support local and regional groups and individuals in making the most of the historic opportunity for enhanced anti-discrimination efforts created by the European Union Race Equality Directive and Protocol No. 12 to the European Conventionon Human Rights. The Project began in January 2001, and focuses on the 15 EU member states and 11 candidate countries (Turkey and 10 in Central and EasternEurope). Working in conjunction with local NGOs and lawyers, the Project engagesin three principal activities, each designed to promote the Directive'seffective application:
Workshops for judges, lawyers, NGO anti-discrimination advocates, governmentofficials, members of parliament and representatives of specialised bodiesto provide key actors throughout Europe with information about the legalobligations flowing from the Directive and the Protocol, support for theircreative use and application, and the opportunity to discuss comparativeapproaches and methods;
Strategic litigation before selected constitutional and Supreme Courts, the European Court ofHuman Rights and the European Court of Justice, to ensure the adoption injudicial case law of the various elements of the Directive and the Protocol;and
Legislative advocacy before individual governments andrelevant EU institutions to ensure that the requirements of the Directive� in short, the adoption of comprehensive anti-discrimination legislationand the establishment of effective enforcement bodies � are swiftly andadequately complied with, and that Protocol No. 12 to the ECHR is speedilyratified by at least the minimum ten states required for its entry intoforce. This activity is conducted primarily by ERRC and MPG, with INTERIGHTS' involvement limited to legislative drafting.
INTERIGHTS is involved in the workshops and in the strategic litigation aspects of the Project.
All three Project components are predicated on extensively researched country reports by local lawyers assessing the status of anti-discrimination law as it exists both on the books and as implemented in practice.
The 26 country reports commissioned for the Project analyse the domestic legal framework for anti-discrimination laws both on paper and in practice. The Project has also published an analysis of national anti-discrimination law in the affected States, Racial, Ethnic and Religious Discrimination: A comparative analysis of national and European law (edited by Jan Niessen and Isabelle Chopin, 2002). Both the country reports and this analysis are available at http://www.migpolgroup.com/publications
Transnational workshops
The workshop series aims to devise strategies for the effective domestic implementation of European anti-discrimination law through advocacy, legislative drafting and litigation. Following general introductions to the two European law instruments, the EU Racial Equality Directive and Protocol 12 to the European Convention on Human Rights, the workshop sessions consider in detail provisions of the EU Racial Equality Directive, including:
definitions of discrimination, indirect discrimination, harassment and victimisation the composition and operation of specialised agencies as required under Art.13 of the Racial Equality Directive remedies and enforcement of anti-discrimination provisions evidentiary matters such as the shifting burden of proof and the use of statistics the exception of genuine occupational requirement positive action
The workshops also discuss best-practice litigation in respect of race discrimination law generally.
The first transnational workshop took place in November 2001, just outside Bucharest, Romania. The workshop brought together lawyers, judges, activists, selected government officials and others from Finland, Italy, the Netherlands, Romania and Slovakia. The second transnational workshop was held in April 2002 in Prague, the Czech Republic and was attended by participants from Bulgaria, the Czech Republic, Luxembourg, Spain and the United Kingdom. The third transnational workshop was held in November 2002 in Brussels, Belgium. The workshop attended by participants from Belgium, Denmark, Latvia, Hungary, Portugal and Poland. Future workshops are planned for the remaining EU and candidate countries.
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