Wednesday, 12 August 2015

New academic article on Hämäläinen v Finland


Damián González-Salzberg, of the University of Sheffield, has published an insightful article on the recent judgment by the Grand Chamber of the European Court of Human Rights in Hämäläinen v Finland

The article can be found here:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2641698

Here is the Abstract:

On 16 July 2014, the European Court of Human Rights sitting as a Grand Chamber issued its most recent ruling regarding transsexuality and marriage. The question before the Court was whether a transsexual woman, who had married another woman before her gender transition, had the right to obtain full legal recognition of her gender without putting an end to their marriage. The answer given by the Court was not only a rejection of the applicant’s claim; it was also a decision that called into question the Court’s own conception of heterosexual marriage.

Tuesday, 21 July 2015

Ground-breaking judgment of the European Court of Human Rights in Oliari and Others v Italy: same-sex couples in Italy must have access to civil unions/registered partnerships

The Fourth Section of the European Court of Human Rights has today (21 July 2015) issued its judgment in Oliari and Others v Italy. The applicants are three male same-sex couples - six men who were born between 1959 and 1976 and live in Italy - who complained that under Italian legislation they did not have the possibility to get married or enter into any other type of civil union and that, consequently, they were being discriminated against on the grounds of their sexual orientation.

In its judgment the Court has, for the first time, found that the inability of same-sex couples to gain some form of legal recognition of their relationships other than marriage, in a country which only offers marriage to different-sex couples, amounts to a violation of the European Convention on Human Rights. As a consequence, the Italian legislature will be required to provide same-sex couples with access to some form of civil union or registered partnership. Simultaneously, the Court rejected the applicants' complaint that their inability to marry was a violation of the Convention.


The judgment is a significant development in the Court's case law. It goes beyond the judgment in Vallianatos and Others v Greece, in which the Grand Chamber of the Court found that making 'civil unions' available to different-sex couples but not to same-sex couples amounted to a violation of the Convention. It sets the strong precedent that Council of Europe states that fail to provide same-sex couples with some form of legal recognition (other than marriage) may be in violation of positive obligations under Article 8 of the Convention.

The judgment will require careful scrutiny, but on first reading a number of points seem initially very interesting:

Article 8 alone

One of the most striking features of the judgment is that the Court chose not to engage with the applicants' complaints that the inability of same-sex couples to gain legal recognition for their relationships in Italy constituted a form of discrimination on the ground of sexual orientation. All three couples had made this complaint, invoking Article 14 in conjunction with Article 8. Four of the applicants explicitly addressed discrimination in their submission and argued, for example, that 'lack of recognition of same-sex couples in a given state corresponded to a lower degree of social acceptance of homosexuality' and that, if the Court simply deferred to the choices to the national authorities, it 'would fail to take account of the fact that certain national choices were in fact based on prevailing discriminatory attitudes against homosexuals' (§ 113).

Yet, despite all of the applicants relying on Article 14, the Court decided to examine the merits of the complaint under Article 8 alone. Only one of the three couples had invoked Article 8 alone, but the Court, relying on the established principle that it is the 'master of the characterisation to be given in law to the facts of the case', stated that the complaints of the other two couples also fell to be examined under Article 8 alone (§ 99-100).

The Court went on to find a violation of Article 8 alone and reasoned this in the following terms: 

The Court observed that there is 
'a conflict between the social reality of the applicants, who for the most part live their relationship openly in Italy, and the law, which gives them no official recognition on the territory' (§ 173). 
The Court then stated that 
'an obligation to provide for the recognition and protection of same-sex unions, and thus to allow for the law to reflect the realities of the applicants’ situations, would not amount to any particular burden on the Italian State be it legislative, administrative or other' (§ 173). 
The Court reiterated that in assessing a State’s positive obligations under Article 8 it must have regard to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole. In this respect, when weighing the interests of the applicants against the community interests the Court noted that the Italian Government had failed to explicitly highlight the interests of the community as a whole. The Government had instead relied on its margin of appreciation to determine what action it took. In this respect, the Court observed that while the Government is usually better placed to assess community interests, in the present case the Italian legislature seems not to have attached particular importance to certain developments in both the Italian population and the highest judicial authorities in Italy. In this respect, the Court noted both the sentiments of a majority of the Italian population, as shown through official surveys, which indicate a popular acceptance of homosexual couples as well as popular support for their recognition and protection (see § 144). In addition, it noted that the need to recognise and protect such relationships had been given a high profile by the highest judicial authorities, including the Constitutional Court and the Court of Cassation (see § 45). In light of this, the Court held:
'[I]n the absence of a prevailing community interest being put forward by the Italian Government, against which to balance the applicants’ momentous interests [...], and in the light of domestic courts’ conclusions on the matter which remained unheeded, the Court finds that the Italian Government have overstepped their margin of appreciation and failed to fulfil their positive obligation to ensure that the applicants have available a specific legal framework providing for the recognition and protection of their same-sex unions' (§ 185).
The point about the failure of the Italian legislator to heed the conclusions of the domestic courts, as well as the point made about social attitudes about homosexuality, are very important and mean that the 'positive obligation' established by the judgment cannot simply be applied to other states, such as the Russian Federation. The Court emphasised that '[t]o find otherwise today, [it] would have to be unwilling to take note of the changing conditions in Italy and be reluctant to apply the Convention in a way which is practical and effective' (§ 186). It is, therefore, the 'changing conditions in Italy' which are decisive to the Court's judgment. Indeed, in their concurring opinion, judges Mahoney, Tsotsoria, Vehabović were careful to point out that this 'new' positive obligation existed 'on the basis of a combination of reasons not necessarily found in all the Contracting States' (§ 10). Mahoney, Tsotsoria, Vehabović would have preferred to have found a 'negative' violation of Article 8 based on a 'classic' analysis of whether the Italian state, in interfering with Article 8(1), had any justification under Article 8(2).

The good news for same-sex couples in Italy, therefore, is that in order to fulfil its obligations under the Convention, the Italian legislature will need to make available 'a specific legal framework providing for the recognition and protection of [...] same-sex unions'. 

Why no Article 14?

The Court stated that '[h]aving regard to its finding under Article 8 [...], [it] considers that it is not necessary to examine whether, in this case, there has also been a violation of Article 14 in conjunction with Article 8' (§ 188). 

As I stated above, all of the applicants had invoked Article 14 in conjunction with Article 8 and the issue of discrimination was clearly addressed by Professor Robert Wintemute in his extensive submission on behalf of a number of Third-Party Interveners (§ 140-143).

However, because the Court examined the merits of the complaints under Article 8 alone it did not deal with the issue of the alleged discrimination. As such, the judgment does not explicitly address the claim that the difference in treatment complained of was based solely on the applicants' sexual orientation. By failing to consider this claim under Article 14, the Court does not establish whether the treatment of the applicants amounts to discrimination in violation of the Convention.   

This seems a very odd approach, and one which is now largely out of step with the Court's jurisprudence relating to sexual orientation. In stating that an examination of Article 14 is not necessary, the Court returns to its approach prior to 1999, when it would not consider nor find a violation of Article 14 in respect of a complaint relating to sexual orientation even when it had found a violation of Article 8 of the Convention. 

One could speculate that the Court may have been reluctant to find a violation of Article 14 taken in conjunction with Article 8 because this may have more strongly established a precedent about 'discrimination' applicable to all Council of Europe states. 

At the very least, the failure of the Court to examine the Article 14 complaints means that it has not answered the question put to it by the anti-gay European Centre for Law and Justice that asked 'why homosexuality was more acceptable than polygamy' and 'child marriage' (§ 153). The Court could have responded that a difference in treatment based on sexual orientation amounted to a form of discrimination repugnant to Article 14 of the Convention, unlike the regulation of polygamy and marriage involving children.

Should this judgment be referred to the Grand Chamber, it will be very interesting to see whether the approach to Article 14 adopted by the Fourth Section is continued. 

Article 12

The Court's consideration of Article 12 is extremely significant. All of the applicants complained that their inability to marry was in violation of Article 12 of the Convention. One couple invoked Article 12 alone, and all couples invoked Article 14 in conjunction with Article 12. 

The Court declared these complaints inadmissible, finding them manifestly ill-founded and rejecting them in accordance with Article 35 §§ 3 and 4 of the Convention.

To find the Article 12 complaints manifestly ill-founded amounts, in my view, to a significant 'step backwards' for litigation on same-sex marriage in the Court. In Schalk and Kopf v Austria, in which the Court first considered a complaint about the inability of a same-sex couple to marry, it declared the Article 12 complaint admissible but found no violation. In Hämäläinen v Finland, the Grand Chamber of the Court found that there was no need to examine a complaint under Article 12 made by a transexual applicant who, according to Finnish law, was required to divorce her wife in order to gain full legal recognition of her acquired sex. 

In the present case, the Court has taken the regressive step of declaring the Article 12 complaints inadmissible. The Court's justification for doing so is ostensibly that there has been insufficient change across Council of Europe states for it to depart from its established jurisprudence. Despite the fact that the number of states permitting same-sex marriage has nearly doubled since the judgment in Schalk and Kopf, the Court felt that this 'gradual evolution' (§ 192) did not constitute the sufficient consensus necessary to impose an obligation on Italy to grant a same-sex couple like the applicants access to marriage.

Specifically in respect of the complaints under Article 14 in conjunction with Article 12, the Court makes a rather curious statement: 
'in Schalk and Kopf, the Court held that Article 14 taken in conjunction with Article 8, a provision of more general purpose and scope, cannot be interpreted as imposing such an obligation [on the respondent Government to grant a same-sex couple like the applicants access to marriage]. The Court considers that the same can be said of Article 14 in conjunction with Article 12' (§ 193).
I am not sure how the Court's reiteration of the view in Schalk and Kopf - that if Article 12 does not impose an obligation on Contracting States to provide same-sex couples with access to marriage then neither does 'a provision of more general purpose and scope' (Article 14 taken in conjunction with Article 8) - is relevant to dealing with a complaint under Article 12 when it is combined with Article 14. 

To my mind, the Court's admissibility decision in respect of Article 12 is further evidence that the 'right to marry' remains, practically and effectively, inapplicable to same-sex partners. Although there is much dispute about the 'applicability' of Article 12 to same-sex couples - I last wrote about this on the European Courts website - the decision to declare the complaint inadmissible should raise further concerns about the extent to which the Court considers Article 12 applicable to marriage between persons of the same sex. If Article 12 is applicable to same-sex couples, on what grounds could a complaint about a total legal prohibition of same-sex marriage be manifestly ill-founded? Although the Court reiterated the principle established in Schalk and Kopf that 'it would no longer consider that the right to marry must in all circumstances be limited to marriage between two persons of the opposite sex', it is clear that such 'circumstances' do not include a legal ban imposed on same-sex marriage by the state. My interpretation of the admissibility decision is that it is further evidence of the Court's entrenched (but politely expressed) view that Article 12 does not apply to same-sex couples and they should not trouble the Court with their complaints.

Conclusion

This is a ground-breaking judgment that advances the human rights and freedoms of same-sex couples in significant ways. It establishes that there is a positive obligation for Italy under Article 8 to provide same-sex couples with some form of legal recognition of their relationships. Although this positive obligation has been established in the context of the social and legal relations of Italy, it is clear that this may set an important precedent in respect of all other states. 

The failure to examine the Article 14 complaints (particularly in conjunction with Article 8) is perplexing and somewhat worrying. The applicants had clearly suffered a difference in treatment based solely on the grounds of their sexual orientation - given that this was the only reason they could not establish a legal relationship with the partner of their choice - and the Court should have found that this amounted to discrimination in violation of Article 14 taken in conjunction with Article 8.

The decision to declare the Article 12 complaints manifestly ill-founded sends a very strong message that the Court has no intention of changing its position that, for all practical and effective purposes, the right to marry does not extend to same-sex partners. 


Monday, 20 July 2015

Two applicants from Identoba and Others v Georgia discuss the judgment of the European Court of Human Rights

Democracy and Freedom Watch have published an article on the judgment by the European Court of Human Rights in Identoba and Others v Georgia. There is also a video which contains a very interesting discussion with two of the applicants in the case, Levan Berianidze and Natia Gviniashvili. 

I wrote about the judgment here and here

Thursday, 9 July 2015

Should an asylum seeker in Hungary not have been subject to a period of detention because of his sexual orientation?

The European Court of Human Rights has communicated the complaint in O.M. v Hungary. The case concerns an Iranian national, who was born in 1982 and lives in Budapest.

Summary of the facts

The applicant arrived in Hungary illegally from Serbia on 24 June 2014. The applicant requested to be recognised as a refugee and at a hearing held on 25 June 2014 by the Immigration Office, the applicant declared that he had fled from his country of origin, Iran, because of his homosexuality. At a hearing on the same day at the Office of Immigration and Nationality the applicant repeated that he had had to leave his country of origin because he was homosexual and criminal proceedings had been instituted against him for this reason. The applicant stated that the penalty for homosexuality in Iran is death.

After the hearing a section of the Office of Immigration and Nationality ordered the applicant’s asylum detention. In its decision the asylum authority observed that the applicant’s identity and nationality had not been clarified. It held that there were grounds for presuming that, if left at large, he would delay or frustrate the asylum proceedings and would present a risk of absconding, given that he had arrived unlawfully in Hungary and had no connections in Hungary or resources to maintain himself.

Subsequently, a competent court extended the asylum detention by a maximum of 60 days. Without referring to the applicant’s sexual orientation, the court held that less stringent measures were not suitable in the case to secure the applicant’s availability to the authorities.

At a hearing held on 18 July 2014 the applicant referred again to his sexual orientation, explaining that it was difficult for him to bear the asylum detention for fear of harassment. 

In August, the court dismissed a further request by the authorities to extend the asylum detention further. On 22 August 2014 the asylum authority terminated the asylum detention and on 31 October 2014 the applicant was recognised as a refugee.

The issue and complaint

The key issue of the complaint concerns the detention of the applicant, which lasted from 25 June 2014 to 22 August 2014.

The applicant relies solely on Article 5(1) of the Convention ('right to liberty and security') under which he complains that his asylum detention was not lawful or justified. He submits in particular that his asylum detention was arbitrary, because the court ordered it without properly analysing the legal grounds, his personal circumstances or the applicability of less stringent measures, considerations prescribed both by the national law and the Convention.

Questions to the Parties

The Court has asked two questions:

1. Was the applicant deprived of his liberty in breach of Article 5(1) of the Convention? In particular, did the deprivation of liberty fall within paragraphs (b) or (f) of this provision?

Paragraph (b) concerns 'the lawful arrest or detention of a person for noncompliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law'; paragraph (f) concerns 'the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition'. 

2. In ordering the applicant’s detention, to what extent did the authorities take into account the fact that the applicant might have been exposed to abuse on account of his sexual orientation, as considered by UNHCR Guideline 9.7.?

UNHCR (United Nations High Commissioner for Refugees) Guideline 9.7. concerns 'victims of trauma or torture'. 

Sexual orientation and Article 5

A key issue in this complaint concerns whether the failure by the Hungarian authorities to consider the applicant's sexual orientation when ordering and maintaining his detention amounts to a violation of Article 5(1) of the Convention. 

The applicant does not invoke Article 14 in conjunction with Article 5(1) - a combination which remains unusual in complaints under the Convention generally (although, for a rare example of a case concerning sexual orientation, see Waite v the United Kingdom) - and does not, therefore, make any straightforward claim about discrimination on the grounds of sexual orientation in respect of the processing of his application for asylum and his associated detention. However, a key aspect of the applicant's complaint is that by failing to consider, inter alia, his sexual orientation his detention did not comply with Article 5(1) of the Convention. 

The complaint raises a novel issue before the Court. Although in Lokpo and Touré v Hungary the Court considered and upheld an Article 5 complaint from two applicants in similar circumstances to Mr. O.M. - the applicants were also asylum seekers who claimed that they were persecuted in their home country for being homosexual - the issue of sexual orientation was not material to the complaint. Similarly, the Court upheld a complaint under Article 5 by a homosexual applicant in Enhorn v Sweden concerning his detention because he was HIV+ but the issue of his sexual orientation was not material to the complaint. 

Complaints relating to sexual orientation are uncommon under Article 5. As far as I am aware, the earliest such complaint was in X. v Federal Republic of Germany (no. 986/61, Commission decision, 7 May 1962) which related to the treatment of the applicant in respect of his trial, conviction and imprisonment for homosexual offences under the former Paragraph 175 of the German Criminal Code. To date, the Court has not upheld a complaint under Article 5 where the issue of sexual orientation discrimination was material. Will O.M. be the first?
















  

Friday, 3 July 2015

No progress made again by the Committee of Ministers in Alekseyev v Russia

The Committee of Ministers of the Council of Europe have again considered the state of execution of the European Court of Human Rights' judgment in Alekseyev v Russia. The judgment concerns the repeated refusal by Moscow authorities to allow the applicant to hold a Gay Pride march/event.

The Committee of Ministers have considered the judgment many times before, each time in the context of a worsening situation for LGBT people in the Russian Federation. Indeed, in advance of this latest meeting, GayRussia wrote to the Committee of Ministers to inform them that Pride organisers had been imprisoned. 

The Committee of Ministers has overwhelming evidence that, as ILGA-Europe and Coming Out put it, 'not only has there been no serious attempt to implement the Alekseyev judgment, but violations similar to those condemned in the Alekseyev judgment continue unabated'. In sum 'the refusal by the competent authorities in the Russian Federation to authorise public events in support of the rights of LGBT persons has continued uninterrupted for the 10 years since the rejection of the first application to hold a pride march in Moscow in 2005'.

Meanwhile, the Committee of Ministers continues to take a very 'light touch' approach to the issue. Although the Deputies:
expressed serious concern [...] that the local authorities in the Russian Federation continue to reject most of the requests made to hold public events similar to those in the present judgment, including on the basis of the Federal Law prohibiting “propaganda of non-traditional sexual relations”, and therefore urged the authorities to take concrete measures to ensure that such requests are accepted unless there are well-grounded reasons justifying their rejection in compliance with Convention standards;
and 
invited the Russian authorities to provide further information on measures taken to sufficiently recognise and defend the exercise of the important right to assembly, in particular, to ensure that the mentioned Federal Law does not hinder the effective exercise of this right,
the language of the Committee of Ministers does not inspire confidence that they fully grasp, or are willing to tackle, what has been described as a 'state orchestrated campaign of stigmatisation' of LGBT people.  

The Russian authorities, in their latest communications to the Committee of Ministers, have continued to assert that '[a]ll citizens are equal before the law and the courts' and '[t]here are no laws in Russia that are against [...] LGBT persons'. The Russian authorities now repeatedly claim, as I argued in my article in the Russian Law Journal, that legislation designed to regulate 'propaganda of non-traditional sexual relations' does not target persons on the basis of their sexual orientation. 

Meanwhile, the Court has still not issued a judgment in Bayev and Others v Russia in which it has the opportunity to clearly articulate that the regulation of public expression on the grounds of sexual orientation is a violation of Article 10 of the Convention. 
 

Thursday, 25 June 2015

Isle of Man reforms its criminal law relating to homosexuality, but more reform still needed

I have previously written two articles about the existence of discriminatory sexual offences law in the Isle of Man, which continues to subject sexual acts committed between men to greater regulation than sexual acts committed between women or between men and women. I published the first article in Jurist in 2012, and the second was published on this blog in 2013. 

In both articles, I pointed out that Manx law maintained a total prohibition of buggery and gross indecency aboard merchant ships when these acts were committed between men. S.10(3) of the Sexual Offences Act 1992 stated that the provisions that partially decriminalized buggery and gross indecency 'in private' did not apply to acts 'committed on a Manx merchant ship by a man who is a member of the crew of that ship with a man who is a member of the crew of that ship or of another Manx merchant ship' ('merchant ship' means any ship registered on the Isle of Man that is habitually used for the purposes of carrying passengers or goods). Therefore, any consensual sexual act committed between adult men serving as crew on a Manx merchant would have constituted a criminal offence.

In light of the existence of ECHR jurisprudence, I argued that the Isle of Man needed to revise its sexual offences provision urgently. I pointed out that it needed to address "the rather ridiculous legislative situation that permits a same-sex couple to register a civil partnership but continues to subject male homosexual sex to heightened forms of regulation". 

The ban on male homosexual acts on merchant ships is repealed

It is very gratifying to see that the Isle of Man has finally repealed the provision relating to homosexual acts on merchant ships from the Sexual Offences Act 1992. During debate of the Bill that became the Terrorism and Other Crime (Financial Restrictions) Act 2014the Legislative Council of Tynwald (the Parliament of the Isle of Man) adopted an amendment that made provision to repeal the relevant sections in the 1992 Act. The House of Keys accepted the amendment and, in doing so, Hon. J P Watterson stated:
"When homosexual activity was decriminalised a number of years ago [1992], a regrettable oversight occurred when making consequential amendments, with the result that we have suffered and continue to suffer some reputational damage. The acceptance of this new clause will mean that homosexual activity on Manx merchant vessels is decriminalised". 
The claim that the blanket ban on male homosexual acts on merchant ships was a legislative "oversight" is interesting. When I spoke to officials on the Isle of Man in 2012 about the existence of this provision, they were certainly surprised. And members of the Legislative Council and House of Keys overwhelmingly supported the removal of the provisions during debates of the 2014 Act. However, Hansard shows that when the House of Keys debated this aspect of the Sexual Offences Bill on 31 March 1992 the proposal to continue the blanket ban on male homosexual acts onboard merchant ships was clear. Indeed, one member, Mr. Quinn, entered a reservation about the 'position in regard to people on merchant ships' and argued that, 'according to the legal advice' available, this position was 'contrary to the European Convention on Human Rights'. 

More law reform needed 

The reform relating to merchant ships is certainly good news. However, the Isle of Man still needs to take one more step to fully reform its criminal law. It needs to address the existence of S.9 Sexual Offences Act 1992 by virtue of which the 'unnatural offences' of 'buggery' and 'gross indecency' continue to be criminalised - offences which have been repealed in England and Wales, Scotland and Northern Ireland. 

S.9(1) of the 1992 Act which criminalises buggery is written in gender-neutral terms, but S.9(4) which criminalises gross indecency relates only to acts committed between a man with another man. Both buggery and gross indecency remain criminalized if they take place 'elsewhere than in private'. S.10(1) of the 1992 Act specifies that buggery and gross indecency shall not be treated as being in private if 'more than 2 persons are present' or are done in 'any place to which the public have or are permitted to have access, whether on payment or otherwise'.

Manx law therefore continues to single out particular sexual acts between consenting adults, and specifically male homosexual acts, for heightened legal regulation based on restrictions around 'privacy'. The European Court of Human Rights has held that subjecting homosexual acts to greater privacy restrictions is a violation of Convention rights. In A.D.T. v the United Kingdom, the Court upheld a complaint about the existence of a law similar to that found in the Isle of Man that criminalized male homosexual acts when more than two persons are present.  

If the Isle of Man wants to avoid further 'reputational damage' it should follow the lead of the UK and repeal the archaic offences of 'buggery' and 'gross indecency'. If it does not, it risks a complaint against it in the European Court of Human Rights - a complaint that would undoubtedly be successful and, therefore, embarrassing.  


Tuesday, 16 June 2015

Separate and unequal? Same-sex couples in Austria challenge "sexual apartheid"

The European Court of Human Rights has communicated the complaints in Hörmann and Moser v Austria and Dietz and Suttasom v Austria. The applicants are two same-sex couples who wish to formalise their relationships. According to Austrian law, the applicants are entitled to enter into a registered partnership but not entitle to marry.

The applicants wish to marry, but the basis of their complaint to the Court does not focus on this issue. Rather, their complaint relates to the fact that the current law in force in Austria requires marriage to be contracted by the Office for Matters of Personal Status, whereas a registered partnership must be contracted by the District Administrative Authority. The applicants argue that "in their view it amounted to sexual apartheid that registered partnerships could not be concluded before the same authority as civil marriages are".

The applicants complain under Article 14 read in conjunction with Article 8 of the Convention that they are discriminated on grounds of their sexual orientation, because registered partnerships are concluded before the District Administrative Authorities, while civil marriage is contracted before the Office for Matters of Personal Status.

The Court has communicated the following two questions to the parties:

1. Have the applicants suffered discrimination on the ground of their sexual orientation, contrary to Article 14 of the Convention read in conjunction with Article 8, because registered partnerships are concluded before the District Administrative Authorities, while civil marriage is contracted before the Office for Matters of Personal Status?

2. Have the applicants in the meantime concluded a registered partnership? If so, when and where?