Our strategic litigation work
For ILGA-Europe, strategic litigation is about using European courts to advance the rights of LGBTI people, usually as part of a wider advocacy campaign. The use of European courts to ensure full recognition and implementation of human rights for everyone – irrespective of their sexual orientation, gender identity or sex characteristics – is one of the key working methods of ILGA-Europe to achieve full equality for LGBTI people in Europe.
Strategic litigation is the use of court cases as part of a strategy to achieve broader legal and social change. Strategic cases may be settled in the national courts, or, failing that, go to regional or international courts.
What does ILGA-Europe do in relation to strategic litigation?
Our long-term goal is to achieve legal changes for LGBTI people at European and national level through a proactive, coordinated and needs-based litigation programme. We do this by:
- Identifying gaps in human rights protection at European level, and encouraging member organisations and others to bring forward cases aimed at closing those gaps.
- Enhancing the knowledge and capacity of LGBTI activists and groups to engage in litigation. This is a precondition to the use of courts to get recognition of rights, to seek redress for rights violations or to change laws and practices at national and European level. It is a core objective for ILGA-Europe to enable LGBTI activists and groups to engage in strategic litigation, and this is carried out through seminars and coaching for organisations interested in getting involved in strategic litigation.
- Supporting strategic cases before the European Court of Human Rights (Council of Europe) in Strasbourg and the Court of Justice of the European Union (European Union) based in Luxembourg and submitting of collective complaints to the European Committee on Social Rights.
- Over the past two decades, ILGA-Europe has intervened in over fifty cases as a third party intervener before the European Court of Human Rights.
- ILGA-Europe is grateful to have received the pro bono support of several legal experts, particularly Prof. Robert Wintemute, of King’s College, London, who has advised ILGA-Europe in this field since 1999.
- Monitoring implementation of positive judgments from the European Court of Human Rights on national level. We provide support to our members and make submissions to the Council of Europe Committee of Ministers through its execution of judgments process to ensure full implementation by Member States.
- ILGA-Europe is a founding partner of European Implementation Network (EIN).
- Enhancing coordination among organisations engaged in litigation on LGBTI human rights at European level by facilitating exchange of information and expertise between different actors.
Ever more there is growing need to support strategic cases than we can take on due to our limited capacity.
Could you help our litigation work to advance LGBTI rights by making a donation, raising funds or proposing pro bono support?
Our involvement and successes at the European Court
In a majority of cases with ILGA-Europe’s involvement, there has been a positive outcome. To date, the ECtHR has adopted the same reasoning as ILGA-Europe and its partners in thirteen cases, while a number of cases where ILGA-Europe has intervened are still pending awaiting judgement.
- The Court held that States have a positive obligation to provide some means of recognition to same-sex couples (Oliari and Others, Orlandi and Others v Italy) and excluding same-sex couples from civil unions is an unconventional discrimination (Vallianatos & Mylonas v. Greece, C.S. & Others v. Greece). These means of recognition must ensure that same-sex couples have access to socio-economic rights, such as tenancy rights (Siegmund KARNER v. Austria) or residency rights (Taddeucci and McCall v Italy).
- Member States must also ensure that adoption is effectively available to single LGBTI individuals (E.B. v. France) and unmarried same-sex couples (X & Others v. Austria) without any direct or indirect discrimination.
- Furthermore, the prohibition of discrimination implies that all members of the public, regardless of their sexual orientation, have a right to equal access to services (Ladele and McFarlane v. UK).
- In a number of cases, the ECtHR has reaffirmed the importance of protecting freedom of assembly (Genderdoc-M v Moldova) and freedom of expression (Nikolay Viktorovich BAYEV and two other applicants v. Russia) particularly for vulnerable groups like the LGBTI community.
- In cases relating to violent attacks against LGBTI individuals, the Court has reiterated the heightened obligation of member States to protect against and effectively investigate hatred violence motivated by considerations of sexual orientation or gender identity (MC & AC versus Romania).
- The ECtHR also found a breach of the Convention where the applicant’s detention verged on arbitrariness and did not contain any adequate reflection on his individual circumstances as a member of a vulnerable group by virtue of belonging to a sexual minority in Iran (O.M. v. Hungary).
- The rights of trans people to name change and legal gender recognition have also been clarified (A.P. , Garcon and Nicot v. France and X. v. the former Yugoslav Republic of Macedonia).
Inventory of relevant SOGIESC case-law and pending cases before the ECtHR and CJEU
In order to focus our strategic litigation efforts across Europe to fully protect and advance LGBTI rights, with this inventory ILGA-Europe wants to support members and partners across the region to identify trends and gaps in protection at the European level, which can commonly be tackled through litigation. The inventory can further strengthen cooperation and help guiding our work and efforts by others in bringing forward and supporting strategic cases.
This inventory and continuous assessment of the European landscape informs ILGA-Europe’s ongoing engagement in strategic litigation through identification and support of strategic opportunities.
This inventory covers cases up until September 2020.
Practical information on strategic litigation
- If you would like more information on any of this work, please contact Arpi Avetisyan, Head of Litigation.
- Please note that ILGA-Europe is not in a position to offer legal advice on the merits of your own particular case.
In a majority of cases with ILGA-Europe’s involvement, there has been a positive outcome.
A strategic complaint mechanism for LGBTI activists in the European Union
Find here the events we have organised related to strategic litigation.