ECtHR – Intervention Submission in E.S. v. Spain, application no. 13273/16, by AIRE, ECRE, HDT, ICJ and ILGA

An intervention has been submitted to the ECtHR in E.S. v. Spain (no. 13273/16) by the AIRE Centre, ECRE, Human Dignity Trust, the International Commission for Jurists and the International Lesbian and Gay Association.

The Intervention discusses three areas:

1.    Enforced concealment of one’s same-sex sexual orientation constitutes persecution under refugee law and is incompatible with the Convention, in particular, Article 3:

The Interveners submit that the Refugee Convention and guidance of UNHCR are of relevance to the interpretation of the Convention with regards to the execution of a removal which would have the effect of forcing a person to conceal their sexual orientation to prevent exposure to potential Article 3 treatment, would in itself cause ‘pain and suffering amounting to proscribed treatment under Article 3.’ Furthermore, such removals would constitute arbitrary refoulement contrary to Article 3, as understood by M.S.S. v. Greece & Belgium.

2.    The criminalization of consensual same-sex  sexual  conduct  gives  rise  to  a  real  risk  of  Article  3  prohibited  treatment,  thus  triggering non-refoulement obligations under that provision of the Convention:

The Interveners submit that the existence of laws criminalising consensual same-sex sexual conduct amounts to dispositive evidence of a real risk of treatment prohibited under Article 3 and as such triggers the prohibition on exposing a person to treatment under Article 3. Alternatively, the Interveners submit there is a presumption that such laws give rise to a real risk of treatment prohibited under Article 3 and as a result, the burden is on the state to conclusively prove that such a risk does not exist.

3.    The risk of persecution based on sexual orientation in Senegal:

Drawing from a number of sources of country information relating to Senegal, the Interveners submit to the court, the risk of persecution facing a person based on their sexual orientation in Senegal.

(i) Risk of arrest and prosecution

Country reports from Canada, the US, the UK, Amnesty International evidence instances of lynchings and arrests for people ‘suspected’ of being homosexual.

(ii) Torture and inhuman and degrading treatment and other persecutory acts

International NGO reports were submitted to evidence instances of widespread persecution with general and seemingly popular resistance in Senegal, highlighting a ‘grave situation’ that is not safe for LGBT people.