27 June 2014

A six-to-one majority of the European Court of Human Rights (ECtHR) has rejected a Libyan national’s complaint that his return from Sweden to Libya would expose him to a risk of persecution based on his homosexuality.

The Swedish authorities refused the applicant’s asylum claim and seek to require him to return to Libya in order to apply for family reunification with his partner, a permanent resident of Sweden to whom he is married. The authorities indicate that this process would take about four months. The applicant argued that removal to Libya, even for four months, would entail a risk of ill-treatment contrary to Article 3 of the European Convention on Human Rights.

Based on the absence since the fall of Gadhafi’s regime in 2011 of public records of any prosecutions for homosexual acts, which are punishable by imprisonment under the Libyan Penal Code, the ECtHR majority hold that there is insufficient evidence that ‘the Libyan authorities actively persecute homosexuals’.

The ECtHR majority conclude that, based on his decision not to reveal his sexual orientation to his family back in Libya, the applicant has made an “active choice to live discreetly” due to “private considerations” rather than fear of persecution. In the majority’s view, “even if the applicant would have to be discreet about his private life [during the four months in Libya], it would not require him to conceal or supress an important part of his identity permanently or for any longer period of time”.

Although the lack of Swedish representation in Libya will necessitate the applicant to travel to the Swedish embassy in Algeria, Tunisia or Egypt for a few days in order to be interviewed for family reunification, the majority again state that the applicant won’t be exposed to persecution “in such a short time frame”.

The single dissenting judge concludes that “[w]ith this judgment, the Strasbourg Court introduces a new test of ‘duration’ that is not to be found elsewhere in comparative European law”. Citing the X, Y, Z judgment of the Court of Justice of the European Union, which holds that individuals cannot be expected to conceal their sexual orientation to avoid persecution, the dissenting judge states that “[w]hat counts is the fact of having to exercise greater restraint and reserve than would be required of a heterosexual in the expression of sexual orientation—and not the length of time for which the discriminatory restraint and reserve would have to be endured”.

The dissenting judge also highlights the United Kingdom Border Agency Country of Origin Information Report on Libya, dated 19 December 2012, which reports allegations of homosexuals in Libya being arrested, assaulted and beaten “simply for being homosexual”.

The ECtHR unanimously rejected the applicant’s claim that separation from his partner would violate his right to family life arguing that the time apart was temporary and telephone contact was possible.

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This article originally appeared in the ECRE Weekly Bulletin of 27 June 2014.
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