Lee v. UK, No. 18860/19, ECtHR (Fourth Section), 6 January 2022

Inadmissibility for non-exhaustion of domestic remedies. Failure to invoke the ECHR before domestic courts. Matters of great import and sensitivity for LGBTIQ and faith communities. Rights of consumers and producers.

Art. 8 ECHR
Art. 9 ECHR
Art. 10 ECHR
Art. 14 ECHR

1. It would be contrary to the subsidiary character of the ECHR machinery if an applicant, ignoring a possible Convention argument, could rely on some other ground before the national authorities for challenging an impugned measure, but then lodge an application before the Court on the basis of the Convention argument. Where an applicant relies solely on domestic law during domestic proceedings, they deprive domestic courts of the opportunity to address specific ECHR complaints, either explicitly or in substance. In such cases, the application is inadmissible because the applicant has failed to exhaust domestic remedies.

2. The balancing exercise between rights protected under the Convention is a matter of great import and sensitivity to both LGBTIQ communities and to faith communities. Such disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market. This particularly applies to contexts where there is a large and strong faith community, where the LGBTIQ community has endured a history of considerable discrimination and intimidation, and where conflict between the rights of these two communities has long been a feature of public debate.

3. Where a consumer complains about the violation of the prohibition of non-discrimination by the producer who refuses to supply a good, a tension emerges between the consumer’s and the producer’s rights. Both positions should be considered carefully. The question concerns not only the consumer’s rights and freedoms, but also the alleged existence of a producer’s duty to supply a good expressing the consumer’s political support for a cause that the producer objects for religious reasons.
(The applicant complained that the Supreme Court’s dismissal of his claim amounted to a disproportionate interference with his right to non-discrimination (Article 14) alone and in conjunction with the right to respect for private life (Article 8), to freedom of thought, conscience and religion (Article 9) and to freedom of expression (Article 10). His order for a cake was refused by a Christian-run bakery due to the applicant’s request to have the words ‘Support Gay Marriage’ and the logo of the LGBT organization he was associated with on it. Having the applicant never invoked any of the ECHR provisions during the internal proceedings, the Court declared the application inadmissible for non-exhaustion of domestic remedies).