A proposito del dibattito per le unioni civili tra persone appartenenti allo stesso sesso,e la discussione che la scrittura di questa legge in Parlamento sta suscitando nell'opinione pubblica del nostro Paese,pubblichiamo un contributo che ci viene dalla Gran Bretagna apparso sul sito http://www.legalscribbler.com a firma della giovane avvocatessa Stephania Xenophontos.
During the last century, gay rights seemed
to have gained momentum worldwide. There has been an increasing trend towards
decriminalization of same-sex relationships particularly escalating in the
1960s and 1970s. In fact, LGBT rights are currently protected through various
legal instruments. For example, in the European Union, LGBT rights are
guaranteed through both The Treaty of Functioning of the European Union and the
Charter of Fundamental Rights, homosexuality is legal in all EU member-states and
there is a growing acceptance of same-sex marriage. Recently, in 2014, the UK
(except Gibraltar and Northern Ireland) has adopted the Marriage (Same Sex
Couples) Act 2014 and it is also possible for same-sex couples in UK to adopt
via the Adoption and Children Act 2002.
LGBT Rights-Nigeria
On the other side of the coin, there are
millions of people who continue to live in places that outlaw same-sex
relationships. In five countries and in parts of two others, homosexuality is
still punishable with the death penalty, while a further 70 imprison citizens
based on their sexual orientation. One of these countries is Nigeria where
maximum punishment for same-sex sexual activity is death by stoning. Nigerian
law is actually so radical that it includes an anti-gay law punishing a
straight ally ‘who administers, witnesses, abets or aids’ any form of gender
non-conforming and homosexual activity with a 10-year incarceration sentence.
If you are currently living in the UK,
which seemingly provides one of the highest degrees of liberty in the world for
its LGBT communities, this would certainly come as a surprise to you. Imagine being
born gay in a country that treats you like a criminal for this. Imagine growing
up and being forced to marry a man to hide a long-term relationship with your
girlfriend. Imagine getting arrested, tortured and extorted by the police on
the basis that you are gay. Imagine enduring the murder of your family members
and girlfriend because you are gay. Imagine being sentenced to death by stoning
because you are gay. Imagine fleeing your country out of fear for your life.
This is not a fictional story; it is the story of Aderonke Apata.
Apata’s asylum claim
Ms. Apata moved to the UK from Nigeria in
2004 and, in 2012, after being caught with a false visa, she tried to apply for
asylum. Following two failed asylum claims, she has now sought a judicial
review. The reason she is challenging the government’s decision not to grant
her asylum is because she rightly fears that deportation to Africa would
compromise her safety. After all, she has been sentenced to death in Nigeria.
Nonetheless, the Home Office has refused to recognize her sexuality- arguing
that she cannot be classified as a lesbian because she has children from
previous heterosexual relationship. To quote the Home Secretary’s barrister Mr.
Andrew Bird: “You can’t be a heterosexual one day and a lesbian the next day.
Just as you can’t change your race”. Does that reflect the progressive nature
of the UK government or not?
LGBT Asylum Seekers
Under international and UK law, people who
fear prosecution on the basis of their sexual orientation can claim asylum in
UK. But in order to be eligible for asylum, they must prove that they are gay.
Certainly, this is not an easy task to perform. It demands extensive interrogations
that end up invading those people’s privacy while they are required to reveal
their deepest and most intimate memories.
Ms. Apata has provided the government with
evidence that her former girlfriend, brother, and three-year-old son have
already been killed in vigilante violence relating to her homosexuality. She
has also explained to the Home Office that her previous marriage with a man was
a sham marriage intended to cover up the fact that she was a lesbian. In a
desperate move to prove her sexual orientation, she even submitted photos and
videos documenting her sex life with her current fiancée, Happiness Agboro. Even
though one is left to wonder what else should Ms. Apata had provided the
government with, the Home Office has refused to change its decision and the
ruling on Ms. Apata’s judicial review is awaited by the end of March.
Soering Case
On a similar note, in 1989 in Soering v UK, the European Court of
Human Rights (ECtHR) has established a well-respected principle that requires
all signatory states to the European Convention of Human Rights (ECHR) to
consider the consequences of returning an individual to a third country where
he might face treatment that breaches the Convention.
In this particular case, Soering, a German
national who committed a murder in the US, fled to UK where he was arrested.
The US requested UK to extradite him. During an extensive litigation, Soering
had filed a claim with the European Commission of Human Rights asserting that
he would face inhuman and degrading treatment contrary to Article 3 of the ECHR
if he were to be extradited to the USA, since death penalty would be applied in
his case. The issue ended up in the ECtHR, which affirmed the Commission’s
conclusion that the UK will be in breach of article 3 if it were to extradite
Soering.
The significance of this decision can be
summarized in two main points:
i)
The Court has enlarged the
scope of a state’s responsibility under the Convention. Each member state has
to ensure that there will not be any breach of the Convention with regards to
the person it wants to deport/extradite.
ii)
By finding a breach of the
Convention on the territory of a non-signatory state [USA], the Court has
extended its jurisdiction to include actions in non-signatory States
Consequently, by applying this same reason
to Ms. Apata’s case, if the UK government ultimately decides to send this woman
back to Nigeria it would definitely do so in breach of the ECHR.
For me, denying Ms. Apata asylum should be
equated with sentencing her to death. She has been diagnosed with
post-traumatic stress in 2005 and has attempted suicide when she was in prison
facing deportation. Her fragile mental health builds up on her case that she would
suffer if she returned to Nigeria. She has already sustained enough tragedies
and it would be a grave injustice if she were to relive what she intentionally
fled from. As a society which claims to respect individuality and promote equal
treatment, the UK owes to accord Ms. Apata a refugee status. According to her:
“staying in Britain means staying safe, staying with my partner and continuing
my campaigning”.
Stephania Xenophontos.
Stephania Xenophontos.
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