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:



 

Tuesday, 14 June 2016

Surviving same-sex partner who was denied access to survivor’s pension was not discriminated against - Aldeguer Tomás v Spain

The European Court of Human Rights has today issued its judgment in Aldeguer Tomás v Spain. The case concerned the applicant’s complaint that he had been discriminated against on the grounds of his sexual orientation when he was denied a survivor’s pension following the death of his partner, with whom he had lived in a de facto marital relationship. 

The applicant, Mr Aldeguer Tomás, had been unable to marry his partner under the law in force during the latter’s lifetime. Three years after his partner’s death, the law legalising same-sex marriage in Spain entered into force.  

The facts

Mr Aldeguer Tomás is a Spanish national who was born in 1955 and lives in Pozuelo de Alarcón (Madrid), Spain. His partner, with whom he had lived together since 1990, died in 2002. In 2003, Mr Aldeguer Tomás claimed social security allowances as a surviving spouse. The National Institute of Social Security (“INSS”) refused to grant him a survivor’s pension on the grounds that he had not been married to the deceased person. Challenges to this in the domestic courts ultimately failed. 

Complaint to the ECtHR

Relying on Article 14 (prohibition of discrimination) read in conjunction with Article 8 of the Convention (right to respect for private and family life) and, in substance, in conjunction with Article 1 of Protocol No. 1 (protection of property), Mr Aldeguer Tomás complained that he was discriminated against on the grounds of his sexual orientation in that he was denied a survivor’s pension following the death of his partner. 

The Court's judgment

Mr Aldeguer Tomás complained that he had been discriminated against on the grounds of his sexual orientation in that, as a survivor of a de facto same-sex union, he had been denied a survivor’s pension. He claimed in particular that his situation was relevantly similar or analogous to that of a surviving partner of a heterosexual cohabiting couple who, while having been unable to marry his or her partner before the law legalising divorce entered into force in 1981, qualified for a survivor’s pension by virtue of a provision of that law. The Court concentrated on this particular aspect of the complaint.

In response to this aspect of the complaint, the Court observed that although there were certain similarities between the situations of same-sex and opposite-sex couples who were unable to marry when considered in the abstract, those elements alone were not sufficient to place Mr Aldeguer Tomás in 2005 in a relevantly similar position to that of a surviving partner of an opposite-sex couple. This was because the legal impediment in question was of a different nature in both situations. What was at stake in the case of an opposite-sex couple, before the law of 1981, was an impediment to remarrying which had affected one or both partners, not an impediment to marrying per se. The specific factual and legal situation addressed by the 1981 legislation could therefore not be genuinely compared to the position of a same-sex couple who had been ineligible for marriage in absolute terms before the 2005 law. 

On this basis, the Court concluded that Mr Aldeguer Tomás’ situation in 2005 had been fundamentally different from that of different-sex couples covered by the provision in question of the 1981 law. It stated that this view was unaffected by the fact that the Spanish legislature had recognised the right to a survivor’s pension to same-sex couples after the death of Mr Aldeguer Tomás’ partner, by introducing in 2005 same-sex marriage. The enactment of that legislation could not be taken as an admission by the domestic authorities that the non-recognition of same-sex marriage, or the exclusion of same-sex couples from some of the rights and benefits available to married couples, had at the relevant time been incompatible with the Convention. 

Furthermore, the Court recalled that Contracting States enjoy "a margin of appreciation as regards the timing of the introduction of legislative changes in the field of legal recognition of same-sex couples and the exact status conferred on them", an area which is "regarded as one of evolving rights with no established consensus". Additionally, it recalled that "the Convention does not oblige Contracting States to grant same-sex couples access to marriage [...], marriage being widely accepted as conferring a particular status and particular rights on those who enter it."

The Court concluded that Mr Aldeguer Tomás was not in a relevantly similar situation to that of a surviving partner of a different-sex couple who had been unable to marry because of an impediment to remarrying which had affected one or both members of the couple before 1981. There had thus been no discrimination and, therefore, no violation of Article 14 taken in conjunction with Article 8 of the Convention and Article 1 of Protocol No. 1.

The relevance of the judgment

Hot on the heels of Chapin and Charpentier v France, the Court has again reiterated that the Convention does not require Contracting States to grant same-sex couples access to marriage or to the rights and benefits attached to marriage. The Court has further reiterated that Contracting States have a margin of appreciation available to them regarding the "timing" of when they grant same-sex couples legal recognition and the nature of the status conferred by this (in this respect, the judgment is consistent with previous decisions in M.W. v the United Kingdom and Courten v the United Kingdom). Clearly, a State can sometimes "run out of time" and be required to grant same-sex couples access to a specific legal framework that gives recognition to their relationships (Oliari and Others v Italy) but, once a State does this, the Court will not consider "retrospective" complaints. 

What is curious (and perhaps troubling) about this judgment is that it is founded on a point about same-sex and opposite-couples not being in a relevantly similar or analogous position (in 2005). In the case of Mata Esteves v Spain, a case with similar facts, the Court, although it declared the complaint inadmissible, did not base its decision on a point about same-sex and opposite-sex couples not being in a relevantly similar situation (and, indeed, stated that the applicant in that case "might have been treated differently if his partner had been of the opposite sex"). To base its judgment on this point in the present case is therefore odd, because it relies on a narrow comparison between same-sex couples who were unable to marry, and opposite-sex couples who were unable to remarry because one or both of them was unable to obtain a divorce from a previous marriage. As the Court put it: "[w]hat was at stake [for opposite-sex couples] was an impediment to remarrying which affected one or both partners, not [as in the case of same-sex couples] an impediment to marrying". 

It seems obvious that a more suitable comparison in this case would have been between unmarried same-sex couples (who were unable to marry) and married opposite-sex couples. Of course, this is not a comparison the Court has ever been willing to make. Although the Court has stated that a same-sex couple is "in a relevantly similar situation to a different-sex couple as regards their need for legal recognition and protection of their relationship" (Schalk and Kopf v Austria) it will not compare unmarried same-sex couples with married opposite-sex couples when the former are denied access to marriage and to its rights and benefits that are afforded to the latter (see X. and Others v Austria, § 109).

In my view, this judgment is yet another example of the Court making crystal clear that it has no intention of interfering with Contracting States' discretion to decide whether or not to allow same-sex couples to enter into marriage and to have access to the rights and benefits available to married couples. In addition, it acts to reassure States that do allow same-sex couple access to marriage (or an "alternative" framework of recognition) that no "retrospective" claims about discrimination will be upheld. As Judge Keller puts it, in his separate opinion, affording "the State a wide margin of appreciation" in a situation which has "considerable financial implications" seems "to be the right approach". In other words, the message from the Court to States is: if you allow same-sex couples to marry, don't worry about being sued for your previous discriminatory treatment of them, because it will not be recognised as such under the Convention.

The Spanish legislature made same-sex marriage available in 2005, thus allowing same-sex married couples to benefit from survivors’ pensions (and in 2007 extended the right to a survivor’s pension to stable de facto unions, both same and opposite-sex, under certain conditions). The Court concluded that "the Spanish legislature cannot be criticised [...] for not having introduced the 2005 or the 2007 legislation at an earlier date which would have entitled the applicant to obtain the benefit of a survivor’s pension". In my view, the Court should have "criticised" the Spanish government by declaring that Mr Aldeguer Tomás had been discriminated against in a manner that amounted to a violation of his human rights guaranteed by the Convention.


Monday, 13 June 2016

Going to Strasbourg - book launch



I would be delighted to welcome any readers of this blog to the following event:


Going to Strasbourg 
An Oral History of 
Sexual Orientation Discrimination 
and the European Convention 
on Human Rights 

by Paul Johnson 

Book launch 

Friday 21st October 2016, 6.30pm 

Conway Hall (Brockway Room) 
25 Red Lion Square, London, 
WC1R 4RL 

Free wine reception 

Short talks by 
Lord Cashman CBE 
and former applicants to Strasbourg


Tickets are available here:



Thursday, 9 June 2016

Denying a same-sex couple access to marriage in France did not violate the ECHR - judgment in Chapin and Charpentier v France

The European Court of Human Rights has today issued its judgment in Chapin and Charpentier v FranceThe case concerns Stéphane Chapin and Bertrand Charpentier (both French nationals) and their asserted right to be married.

The facts

In May 2004, Mr Chapin and Mr Charpentier submitted a marriage application to the civil registry department of Bègles municipal council. The municipal civil registrar published the banns of marriage. The public prosecutor at the Bordeaux tribunal de grande instance served notice of his objection to the marriage on the Bègles municipal civil registrar and on Mr Chapin and Mr Charpentier. Despite the objection, the mayor of Bègles performed the marriage ceremony and made an entry to that effect in the register of births, marriages and deaths. The 'maverick mayor' was subsequently suspended.

On 22 June 2004, the public prosecutor brought proceedings against Mr Chapin and Mr Charpentier in the Bordeaux tribunal de grande instance, seeking to have the marriage annulled. On 27 July 2004, the court annulled the applicants’ marriage and ordered its judgment to be recorded in the margin of their birth certificates and the marriage certificate. The Bordeaux Court of Appeal upheld the judgment. Mr Chapin and Mr Charpentier appealed on points of law to the Court of Cassation, which on 13 March 2007 dismissed their appeal. The mayor of Bègles vowed to 'continue his fight' and stated that, "I have no regrets. I subscribe to this cause and I will persist."

The applicants' complaints

Relying on Article 12 (right to marry) taken together with Article 14 (prohibition of discrimination) of the European Convention on Human Rights, Mr Chapin and Mr Charpentier submit that limiting marriage to opposite-sex couples amounts to a discriminatory infringement of the right to marry. 

Furthermore, relying on Article 8 (right to respect for private and family life) taken together with Article 14 of the Convention, they contend that they have been discriminated against on the basis of their sexual orientation.

Legal situation, then and now

At the time that Mr Chapin and Mr Charpentier originally had their marriage solemnised, civil partnership (pacte civil de solidarité) was available to same-sex couples. They obviously did not want to enter into this 'alternative' form of legal arrangement.

Since Mr Chapin and Mr Charpentier lodged their complaint with the Court, France has made marriage available to same-sex couples.

The Court's judgment

In respect of the complaint under Article 12 taken in conjunction with Article 14, the Court declared the applicants' complaint admissible - which contrasts with the recent judgment in Oliari and Others v Italy in which the Court declared inadmissible a complaint under the same Articles concerning same-sex couples' exclusion from marriage. The Court also stated that Article 12 was applicable to the complaint, making reference to Article 9 of the Charter of Fundamental Rights of the European Union and its own judgment in Schalk and Kopf v Austria. However, the Court recalled that in Hämäläinen v Finland it had reiterated that Article 12 enshrined the traditional concept of marriage, as the union of a man and a woman, and that, although some Contracting States had opened up marriage to same-sex partners, this Article could not be interpreted as imposing an obligation on the Contracting States to do this. The Court also noted that it had restated that finding in Oliari and Others. The Court concluded that it saw no reason to reach a different conclusion, given the short time that had elapsed since the judgments delivered in Hämäläinen and Oliari and Others. It further noted that the applicants are now free to marry in France. It held, therefore, that there had been no violation of Article 12 taken in conjunction with Article 14 of the Convention.

In respect of the complaint under Article 8 taken in conjunction with Article 14, the Court reiterated that States remain free under these Articles to not open marriage to same-sex couples and that they enjoy a certain margin of appreciation to decide the exact nature of any status conferred on same-sex couples by forms of legal recognition that are alternatives to marriage. The Court noted that the applicants, although they could not marry, could have concluded a pacte civil de solidarité. In relation to the applicants' claim about the differences between marriage and pacte civil de solidarité, the Court would not comment and simply stated that the State acted within its margin of appreciation when creating these different legal arrangements. The Court therefore held that there had been no violation of Article 8 in conjunction with Article 14 of the Convention.

Does Chapin and Charpentier add anything to the Court's existing jurisprudence on same-sex marriage?

In the main, this judgment adds little to the Court's existing jurisprudence on same-sex marriage, because it clearly reaffirms the existing position that Contracting States are under no obligation to provide same-sex couples with access to marriage. 

However, there are a couple of points in the judgment that might be worth further consideration:

First, the fact that the Court declared the complaint under Article 12 taken in conjunction with Article 14 admissible is more positive or progressive than its approach in Oliari and Others v Italy (in which it declared a complaint by a same-sex couple about their exclusion from marriage as "maniesftly ill-founded" and therefore inadmissible).

Second, and relatedly, the Court has made further reference to the applicability of Article 12 to same-sex couples, citing its previous view "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" (Oliari and Others v Italy, § 191). However, unfortunately, the Court has gone no further in specifying which circumstances make Article 12 applicable and, importantly, which circumstances make Article 12 inapplicable to same-sex couples (for further consideration of this, see here). The Court again makes reference to Article 9 of the Charter of Fundamental Rights of the European Union, but this has no relevance to the 19 Council of Europe States that are not members of the European Union. My view is that if Article 12 "applies" to same-sex couples, then the Court needs to explain how depriving same-sex couples of the right to marry meets its own requirement that a State cannot "restrict or reduce the right [to marry] in such a way or to such an extent that the very essence of the right is impaired" (Rees v the United Kingdom) and, therefore, "may not [...] deprive a person or a category of persons of full legal capacity of the right to marry with the partners of their choice" (O'Donoghue and Others v the United Kingdom). I remain of the opinion that stating that Article 12 can apply to same-sex couples in some circumstances, declaring a complaint by a same-sex couple about their exclusion from marriage admissible, and then finding that such exclusion does not violate Article 12 of the Convention, is an illogical approach.