Monday, 25 July 2016

Judges Spano and Bianku on same-sex couples, marriage, and family life

In the recently issued judgment of the European Court of Human Rights in Taddeucci and McCall v Italy - in which the Court held that excluding a same-sex couple, who were unable to marry, from a benefit available to married couples was a violation of Article 14 taken in conjunction with Article 8 of the Convention - Judge Spano (Iceland), who was joined by Judge Bianku (Albania), made some very striking comments, in a concurring opinion, about same-sex couples, marriage and family life. Judge Spano said:
I will not express a view on the Court’s current case-law granting deference to the Member States in deciding whether to legalise same-sex marriage. As things stand, that is the position of the Court, one by which I am bound on the basis of the principle of stare decisis. However, as recognised in Schalk and Kopf v. Austria (no. 30141/04, § 105, ECHR 2010), things may change [...] I am writing separately to highlight the fact that although States are not under an obligation to afford same-sex couples access to the institution of marriage, that does not mean that these individuals are unable to find sanctuary in this Court when invoking the right to respect for their family lives in particular contexts. On the contrary, if States decide to exclude same-sex couples from being able to marry, such a decision may have consequences when this Court is called upon to examine a claim of unjustified discrimination within a specific context that falls within the ambit of the right to respect for family life under Article 8 taken in conjunction with Article 14 of the Convention.
The significance of these comments will be obvious to anyone who follows the Court's jurisprudence on same-sex couples, marriage and family life. They are made in the context of the Court having consistently maintained that the right to marry enshrined in Article 12 of the Convention 'refers to the traditional marriage between persons of opposite biological sex' (Rees v the United Kingdom [1986], reiterated by the Grand Chamber in Hämäläinen v Finland [2014]) and that this places no obligation on Contracting States to grant same-sex couples access to marriage (see, most recently, Chapin and Charpentier v France [2016]). It also, in my viewremains unclear whether and in what circumstances Article 12 is applicable to same-sex couples. Moreover, there is the general context of the Court (and the former Commission) having for decades promulgated the view that same-sex couples enjoy no protection for their "family lives" under Article 8 of the Convention - a view that was finally changed in 2010 (Schalk and Kopf v Austria [2010]).

Understood within the history of Convention jurisprudence, the comments made by Judges Spano and Bianku appear to me to be incredibly important. It may be wishful thinking, but I read the comments in the following way:
I will not express a view on the Court’s current case-law granting deference to the Member States in deciding whether to legalise same-sex marriage [I am now going to express my view on the Court's current case law and its deference to States that do not wish to legalise same-sex marriage] 
As things stand, that is the position of the Court, one by which I am bound on the basis of the principle of stare decisis [I disagree with the current position of the Court, but, unfortunately, precedent dictates that I must be bound to the collective decision-making of my colleagues].  
However, as recognised in Schalk and Kopf v. Austria ... things may change [Things, however, are going to change, and at some point in the future, the Court will declare that Article 12 of the Convention requires States to permit same-sex couples to marry]. 
I am writing separately to highlight the fact that although States are not under an obligation to afford same-sex couples access to the institution of marriage, that does not mean that these individuals are unable to find sanctuary in this Court when invoking the right to respect for their family lives in particular contexts [I am writing to make it absolutely clear that, regardless of whether States decide to allow same-sex couples to marry, same-sex couples can find sanctuary - and I use that word deliberately to mean refuge from persecution and danger - in the European Court of Human Rights when States do not respect their right to respect for their family lives]. 
On the contrary, if States decide to exclude same-sex couples from being able to marry, such a decision may have consequences when this Court is called upon to examine a claim of unjustified discrimination within a specific context that falls within the ambit of the right to respect for family life under Article 8 taken in conjunction with Article 14 of the Convention [If States continue to exclude same-sex couples from marriage, and grant special privileges to married opposite-sex couples, this Court is now ready to more effectively use provisions in the Convention to address this unjustified discrimination]. 
Wishful thinking? Perhaps, but not outlandishly so.

Many thanks, Judges Spano and Bianku!




Friday, 22 July 2016

Updated "sexual orientation issues" factsheet available

The European Court of Human Rights has issued an updated "sexual orientation issues" factsheet, which contains details of recent judgments such as O.M. v Hungary and Taddeucci and McCall v Italy.

The factsheet can be found here:

http://www.echr.coe.int/Documents/FS_Sexual_orientation_ENG.pdf

Monday, 11 July 2016

Detention of gay asylum seeker violated ECHR - judgment in O.M. v Hungary

The European Court of Human Rights has issued its judgment in O.M. v Hungary. The applicant, Mr. M., is an Iranian national who was born in 1982 and currently lives in Budapest. The case concerned Mr. M's detention for 58 days following his request for asylum in Hungary.

The facts

Having travelled via Serbia, Mr. M. arrived in Hungary in June 2014, where he was apprehended and taken into custody. He filed a claim for asylum stating that he had been forced to flee Iran, his country of origin, because of his homosexuality. At his asylum hearing he alleged that because of his sexual orientation criminal proceedings had been instituted against him and that he faced severe penalties. 

On 25 June 2014 the Office of Immigration and Nationality ordered for him to be detained, referring to the fact that his identity and nationality had not yet been clarified and the risk of his frustrating proceedings or running away if left at large. 

Mr. M.’s request for release was subsequently dismissed by the competent district court, which extended his detention by 60 days. In August 2014, the asylum authority’s request for an additional 60-day extension was dismissed. 

Mr. M's detention was eventually terminated on 22 August 2014 and he was designated a place of residence. In October 2014 he was recognised as a refugee.

Complaint

Relying on Article 5 (right to liberty and security), Mr. M. complained that his detention was arbitrary and unjustified and that the authorities failed to take into consideration the individual circumstances of his case, in particular, his belonging to a vulnerable group.

Judgment of the Court

The Court's unanimous judgment was that Mr. M. had suffered a violation of Article 5 § 1 of the Convention. 

Article 5 § 1 states:
Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law...
The Hungarian government attempted to rely on Article 5 § 1(b) - which allows for an interference with Article 5 § 1 rights in order to secure "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" - to justify Mr. M.'s detention. 

The Court would not accept the government's submission and stated that Article 5 § 1(b) could not convincingly serve as a legal basis for Mr. M's asylum detention. The key reason for this was that Hungarian domestic law did not meet the “obligation prescribed by law”  test. Specifically, domestic law did not contain the requirement that an asylum-seeker must provide documentary evidence of his identity and nationality. 

Importance of the judgment

The Court's judgment does not address the issue of sexual orientation and asylum per se. Mr. M. had already been granted refugee status by the domestic authorities and the case concerned his period of detention prior to this. However, the Court's judgment does contain a statement that may prove important in the ongoing struggle to gain protection for gay men and lesbians under the Convention when they face deportation from a Council of Europe state to a country of origin that criminalises same-sex sexual acts:
...the Court considers that, in the course of placement of asylum seekers who claim to be a part of a vulnerable group in the country which they had to leave, the authorities should exercise particular care in order to avoid situations which may reproduce the plight that forced these persons to flee in the first place. In the present case, the authorities failed to do so when they ordered the applicant’s detention without considering the extent to which vulnerable individuals – for instance, LGBT people like the applicant – were safe or unsafe in custody among other detained persons, many of whom had come from countries with widespread cultural or religious prejudice against such persons (§ 53)
This signals the Court's recognition of the vulnerability of gay men and lesbians who flee persecution from states with criminal laws and/or policies that are hostile to them, and reminds Council of Europe states of their duty to respond adequately to this vulnerability. 

It is to be hoped that the Court takes the next vital step soon, and establishes the principle that deporting a gay man or lesbian to a country that criminalises same-sex sexual acts is a violation of the Convention. 


Thursday, 30 June 2016

Italy violated ECHR by refusing a residence permit to a same-sex partner - judgment in Taddeucci and McCall v Italy

The European Court of Human Rights has today issued its judgment in Taddeucci and McCall v Italy. The case, which I described here, was brought by Mr Taddeucci (an Italian national) and Mr McCall (a New Zealand national) who complained about the refusal of Italian authorities to grant Mr McCall a residence permit on family grounds. The applicants alleged that this amounted to discrimination based on their sexual orientation. 

The Court has held that treating same-sex couples differently to opposite-sex couples, for the purposes of granting residence permits for family reasons, violated the applicants' right to freedom from discrimination based on sexual orientation in the enjoyment of their rights under Article 8 of the Convention. Thus, there had been a violation of Article 14 taken in conjunction with Article 8 of the Convention.

Of particular interest is the concurring opinion of Judge Spano (the Icelandic judge) who was joined by Judge Bianku:
1. I will not express a view on the Court’s current case-law granting deference to the Member States in deciding whether to legalise same-sex marriage. As things stand, that is the position of the Court, one by which I am bound on the basis of the principle of stare decisis. However, as recognised in Schalk and Kopf v. Austria (no. 30141/04, § 105, ECHR 2010), things may change. 
2. I am writing separately to highlight the fact that although States are not under an obligation to afford same-sex couples access to the institution of marriage, that does not mean that these individuals are unable to find sanctuary in this Court when invoking the right to respect for their family lives in particular contexts. On the contrary, if States decide to exclude same-sex couples from being able to marry, such a decision may have consequences when this Court is called upon to examine a claim of unjustified discrimination within a specific context that falls within the ambit of the right to respect for family life under Article 8 taken in conjunction with Article 14 of the Convention.
3. As Italy decided to afford foreign nationals the ability to request residence permits if they were “family members” of citizens, the application of that system of domestic law could not be discriminatory (see E.B. v. France [GC], no. 43546/02, § 49, 22 January 2008). It follows that the impossibility in Italy at the material time for same-sex couples to acquire marital status or other legal recognition of their relationship could not, under any reasonable interpretation of Article 8 taken in conjunction with Article 14 of the Convention, have made their relationships any less worthy of being treated as constituting a family unit within the particular context of immigration proceedings. The judgment does nothing more than require Italy to take due account of the existence of a serious and stable same-sex relationship in this specific context. The Court thus firmly rejects the argument that States can legitimately invoke the concept of the “traditional family” as a basis for denying a request for a residence permit made by a foreign national who is in a relationship with a citizen of the same sex.
4. In conclusion, the fundamental principle of human dignity, which is one of the cornerstones of Article 8 of the Convention, guarantees to each and every individual the right to found a family with whomever they choose, irrespective of their sexual identity or sexual orientation.


Friday, 24 June 2016

UK EU Referendum outcome is a sad day for LGBT people in Europe

The Secretary General of the Council of Europe, Thorbjørn Jagland, has issued the following statement on the outcome of the UK EU Referendum:
The democratic decision in this referendum must be respected. The best way forward now is for the EU, in accordance with its best traditions, to work together with the UK government to obtain the most acceptable outcome for the citizens of the UK and Europe. Everybody should now focus on what unites our family of European nations; democracy, human rights and the rule of law.
Of course, the UK's membership of the Council of Europe, and its acceptance of the jurisdiction of the European Court of Human Rights, are unaffected by the outcome of the Referendum. However, the outcome of the Referendum will have an impact on human rights and, specifically, on the human rights of LGBT people. This impact will be felt in the UK, the EU, and the wider Council of Europe for a number of reasons:
  • First, LGBT people in the UK will lose access to a source of law that has enhanced their rights and protections. For example, until EU law required it, people in the UK had no protection in employment from discrimination on the grounds of sexual orientation. Attempts by some UK legislators to enact law that provided such protection had failed in 1983, 1995 and 1998. Protecting people from sexual orientation discrimination at work had been opposed on the grounds that, for example, it is for ‘those who are gay or of a different sexual orientation ... to take care that they do not ostensibly, willingly and arbitrarily offend those with whom they work’ (Lord Arran, House of Lords, 5 June 1998, c.645) or because such protections would cause ‘great concern to some Christian and other religious charities which do not believe that homosexuality is compatible with Christian or other faith beliefs’ (Bishop of Wakefield, House of Lords, 5 June 1998, c.649). It was only because of the requirement to comply with Council Directive 2000/78/EC of the European Union, that the UK Parliament finally enacted the Employment Equality (Sexual Orientation) Regulations 2003 (now the Equality Act 2010, in Great Britain) and provided people with protection from basic harms such as being refused employment or being sacked because they are gay. 
  • Secondly, through its membership of the EU, the UK has helped to shape EU human rights law in ways that have enhanced the human rights of LGBT people in the UK and the other EU member states. For example, the UK was part of negotiating the text of Article 9 of the Charter of Fundamental Rights of the European Union which omits any requirement regarding the sex of the parties who have the right to marry. This leaves open the possibility for (and, one might say, encourages) EU States to permit same-sex marriage. The UK's membership of the EU therefore helped to raise the EU-wide standard of human rights law by encouraging the rejection of the idea that the right to marry should be explicitly limited to men and women. 
  • Thirdly, the UK's participation in the EU human rights arena has had an impact in the wider Council of Europe and the European Court of Human Rights. It was, for example, the existence of the aforementioned Article 9 of the EU Charter that persuaded the European Court of Human Rights in Schalk and Kopf v Austria that it 'would no longer consider that the right to marry enshrined in Article 12 [of the European Convention on Human Rights] must in all circumstances be limited to marriage between two persons of the opposite sex' (§ 61).
In my opinion, one of the greatest untruths told by the 'leave' side of the UK EU Referendum campaign was that by leaving the EU people in the UK would 'take back control'. That is untrue in respect of LGBT people because, instead of taking back control, we have lost access to one the world's most powerful mechanisms for protecting our human rights and, just as importantly, to being able to contribute to the protection of the human rights of those in other states.

This truly is a sad day for European LGBT people and our human rights.

Forthcoming judgment on the residence rights of bi-national same-sex couples: Taddeucci and McCall v Italy

On Thursday 30th June, the European Court of Human Rights will issue its judgment in Taddeucci and McCall v ItalyThe applicants, Roberto Taddeucci and Douglas McCall, are Italian and New Zealand nationals, born in 1965 and 1958. They are a same-sex couple and live in Amsterdam. They complain of discrimination based on their sexual orientation.

The facts

Mr Taddeucci and Mr McCall lived in New Zealand, as an unmarried couple, until December 2003, when they decided to settle in Italy. During their first period of residence in Italy Mr McCall had a student’s temporary residence permit. He applied for a residence permit on family grounds. On 18 October 2004 the Livorno head of police dismissed his request on the ground that the statutory criteria were not fulfilled.

Mr Taddeucci and Mr McCall lodged an application under Legislative Decree no. 286 of 1998, seeking a residence permit for Mr McCall on family grounds. On 4 July 2005 the Florence Civil Court granted their application, finding that Article 30 of Legislative Decree no. 286 of 1998 should be construed to mean that the same-sex partner was regarded as a member of the Italian national’s family and thus eligible for a residence permit. The Minister of Internal Affairs appealed.

In a judgment of 12 May 2006 the Florence Court of Appeal allowed the appeal. It indicated that the New Zealand authorities had accorded Mr Taddeucci and Mr McCall the status of “unmarried partners” and not that of “members of the same family”. According to the Court of Appeal, the Italian legal system gave different scope and meaning to those two legal concepts. The Court of Appeal considered that New Zealand law was incompatible with Italian public policy on the grounds that it regarded same-sex couples as partners and that the law could be interpreted as conferring the status of family members on such persons with a view to issuing them with a residence permit.

Mr Taddeucci and Mr McCall appealed on points of law. The Court of Cassation dismissed their appeal, observing that, under Article 29 of Legislative Decree no. 286 of 1998, the concept of “family member” included only spouses, children under the age of majority, adult dependent children and dependent relatives. It also pointed out that the Constitutional Court had ruled out the possibility of extending to partners the protection granted to members of the legitimate family. Lastly, it considered that Article 8 (right to respect for private and family life) and Article 12 (right to marry) of the Convention left wide room for manoeuvre (“margin of appreciation”) to the States in such matters.

The complaint

Relying in particular on Article 14 (prohibition of discrimination) taken in conjunction with Article 8, Mr Taddeucci and Mr McCall allege that the refusal by the Italian authorities to grant Mr McCall a residence permit on family grounds amounts to discrimination based on their sexual orientation. 

Likely judgment?

It seems likely that the Court will find in the applicants' favour, given its recent judgment in Pajić v Croatia in which it held that the refusal to grant a national of Bosnia and Herzegovina a residence permit in Croatia, in order that she could gain family reunification with her same-sex partner, was a violation of Article 14 taken in conjunction with Article 8 of the Convention

Sunday, 19 June 2016

New "sexual orientation issues" factsheet

The European Court of Human Rights have issued a new "sexual orientation issues" factsheet. It is right up to date, and includes details of the latest judgments in Chapin and Charpentier v France and Aldeguer Tomás v Spain. 

The factsheet can be found here: