Sunday, 17 December 2017

2017 - the year in review


Here is my annual round-up of cases concerning sexual orientation discrimination that were considered by the European Court of Human Rights this year, along with some other comments and information. 

The Court's year in review 

In January, the Court declared the application in M.B. v Spain, which concerned a complaint by a lesbian asylum seeker resisting deportation to Cameroon, partly inadmissible and struck out the remainder. The Court also declared inadmissible the application in H.A. and H.A. v Norway in which one of the applicants sought to resist his deportation to Iran because, among other reasons, his father had alleged that he was homosexual. 

In February, the Court upheld complaints brought by a number of gay rights activists in Lashmankin and Others v Russia about refusals to allow them to hold a number of "gay pride" and other events. The Court also upheld the complaint in Rubio Dosamantes v Spain, finding that Spanish authorities had failed in their positive obligation to protect the applicant - a pop singer who is famous in Spain - from remarks made on television about her (homosexual) sexual orientation.

In March, the Court struck out Hörmann and Others v Austria which concerned discrimination in respect of the premises in which couples could marry or form a registered partnership. 

In June, the Court held in Bayev and Others v Russia that "homosexual propaganda" laws in the Russian Federation are in violation of the Convention.  

In October, the Court held in Ratzenböck and Seydl v Austria that denying a different-sex couple the opportunity to enter into a registered partnership (a legal institution exclusively reserved for same-sex couples) does not amount to a violation of the Convention. 

In December, the Court held in Orlandi and Others v Italy that Italy violated the Convention by refusing to give some legal recognition to same-sex couples married abroad. 
 
The best of the year

One of the Court's strongest endorsements of sexual orientation equality this year can be found in Bayev and Others v Russia in which the Court found that laws in the Russian Federation designed to suppress public discussion of homosexuality amount to a violation of the Convention. The Court stated that "by adopting such laws the authorities reinforce stigma and prejudice and encourage homophobia, which is incompatible with the notions of equality, pluralism and tolerance inherent in a democratic society". Moreover, the Court considered such laws to perpetuate and reinforce ideas about "the inferiority of same-sex relationships compared with opposite-sex relationships" and, therefore, express "a predisposed bias on the part of the heterosexual majority against the homosexual minority". 

The worst of the year

The remarks made by Judge Pejchal and Judge Wojtyczek in their separate opinion in Orlandi and Others v Italy constitute, for me, the low point of the year in the Court's jurisprudence on sexual orientation discrimination. Judge Pejchal and Judge Wojtyczek's argument, for instance, that "the family unit is founded primarily by a man and a woman through marriage" appears to reflect a desire to return to a time when the "family life" protections guaranteed by Article 8 of the Convention excluded same-sex couples. Silvia Falcetta calls the remarks made by Judge Pejchal and Judge Wojtyczek on same-sex relationships "disturbing" and suggests some might see them as "completely ludicrous". 

In another case, Bayev and Others v RussiaJudge Dedov also made some remarks which some said were "outrageously homophobic" and "indefensible to the Western mentality".

As I argued here, the expression of "homophobic" ideas in the Court is not uncommon and Judges Dedov, Pejchal and Wojtyczek are merely the latest in a long list of Strasbourg judges and former commissioners who have publicly expressed their antipathy for same-sex relationships. I think we should thank them for "coming out" with their views, because they have provided those of us who aim to eliminate discrimination based on sexual orientation, by way of the European Convention on Human Rights, with a useful reminder: not all those in Strasbourg share our aspirations. 

Blog stats

In the time since I began this blog in February 2013, the stats page has recorded a total of 190,545 page views (which is 57,743 more since this time last year). Here is a list of the top ten countries by page views of all time: 


My work this year

This year I was pleased to make a podcast available from the "Going to Strasbourg" oral history project. 

I published the following academic articles: 


I published the chapter "Beliefs about the European Court of Human Rights in the UK Parliament" in the book Law in Popular Belief: Myth and Reality.


With Dr Silvia Falcetta I completed research on the utility of Article 3 of the Convention for addressing discrimination on the grounds of sexual orientation that will be published in European Law Review soon.

Shorter pieces of writing include an article in the Huffington Post on the so-called "Turing Pardons", an article on the European Courts website regarding whether the Strasbourg Court will solve the conundrum of same-sex marriage in Northern Ireland, and the text of a "Pint of Science" talk on gay rights as human rights. 

Thanks very much and Happy New Year

I want to thank everyone who has read this blog over the year for their interest. Many thanks indeed to those of you who have written to me personally - it is always great to hear from you.

I wish you all a very happy, a very peaceful, and a very prosperous 2018.

Saturday, 16 December 2017

Critical consideration of the "disturbing" views of ECHR Judges Pejchal and Wojtyczek on same-sex relationships

Silvia Falcetta provides a consideration of the dissenting opinion of Judge Pejchal and Judge Wojtyczek in Orlandi and Others v Italy

The dissenting opinion of Judge Pejchal and Judge Wojtyczek in the case of Orlandi and Others v Italy has probably raised some eyebrows.

This case concerned six same-sex couples who complained that the refusal of the Italian authorities to register their marriages contracted abroad and the impossibility of obtaining legal recognition of their relationship in Italy violated their rights under Articles 8, 12 and 14 of the Convention. The Court delivered a multifaceted judgment, which is analyzed here, and it held – by five votes to two – that Italian authorities had violated Article 8.

Dissenting Judge Pejchal and Judge Wojtyczek argued that this case should have been declared ‘inadmissible as manifestly ill-founded’ and they upheld one of the most heteronormative (and, some might say, disturbing) interpretations of the Convention in the Court’s jurisprudence.

For instance, they suggested that the majority had committed ‘a fundamental methodological error’ in considering the facts of the application as falling within the notion of family life protected by Article 8. Likewise, when considering the possibility that the Court might evolve the interpretation of Article 12 in the future, they argued that ‘[g]ranting access to marriage within the meaning of Article 12 to same-sex couples is conceptually impossible’.

To corroborate their view that marriage must be defined exclusively as ‘the stable union of a man and a woman’ they quoted the Digest of Justinian and the Institutes of Justinian - a collection of juristic writings on Roman law compiled by order of the Eastern Roman emperor Justinian during the sixth century:
Marriage in its initial meaning presupposes the community of lives between a man and a woman. We note in this context the following definitions of marriage: “Nuptiae sunt coniunctio maris et feminae et consortium omnis vitae, divini et humani iuriscommunicatio” (Modestinus, Digesta Iustiniani 23.2.1); “Nuptiae autem sive matrimonium est viri et mulieris coniunctio, individuam consuetudinem vitae continens” (Institutiones Iustiniani, 1.10). The complementariness of the biological sexes of the two spouses is a constitutive element of marriage. Moreover, marriage in this meaning is - by definition - a social institution open to procreation. 
Judge Pejchal and Judge Wojtyczek therefore suggested that the ‘constitutive’ principles expressed in these compendiums should guide the Court’s interpretation of the right to marry enshrined in Article 12.

One might argue that using Roman law to assess the meaning of the Convention is completely ludicrous. Indeed, if the Court used the Digest and the Institutes to interpret the meaning of marriage as Judge Pejchal and Judge Wojtyczek suggest, then surely it would also need to consider whether the following principles are in accordance with the Convention:
  • As far as marriages are concerned, it is always necessary to consider not just what is lawful but also what is decent. 1. If the daughter, granddaughter, or great-granddaughter of a senator marries a freedman or someone who was an actor, or whose father or mother were actors, the marriage will be void. (Modestinus, The Digest of Justinian, 2.42.1, edited by A. Watson, University of Pennsylvania 2009).
  • A woman caught in adultery is in the same position as one convicted of a criminal offense. So if she is shown to be guilty of adultery, she will be branded with infamia not just because she was caught in adultery but also because she has been convicted of a crime. (Ulpian, The Digest of Justinian, 2.43.12).
  • A female slave manumitted for the purpose of marriage cannot get married to anyone other than the man who manumitted her unless he renounces his right as her patron to marry her. (Licinnius Rufinus, The Digest of Justinian, 2.51.1).

Thursday, 14 December 2017

Italy violated the ECHR by refusing to give some recognition to same-sex couples married abroad: Orlandi and Others v Italy

The First Section of the European Court of Human Rights has today issued its judgment in the case of Orlandi and Others v Italy

The case concerns six same-sex couples who complained that the refusal of the Italian authorities to register their marriages contracted abroad, and more generally the impossibility of obtaining legal recognition of their relationship in Italy - which, at the time of the complaint did not allow for marriage between persons of the same sex nor provide for any other type of union which could give them legal recognition - violated their rights under Articles 8, 12 and 14 of the European Convention on Human Rights.

Article 8 of the Convention

The applicants complained under Article 8 that on their return to Italy from abroad they were refused registration of their marriages, either as marriages or under any other form, depriving them of any legal protection or associated rights.

In response, the Court reiterated that States are free, under Article 12 of the Convention as well as under Article 14 taken in conjunction with Article 8, to restrict access to marriage to different-sex couples. 

Nevertheless, the Court noted that it has acknowledged that same-sex couples are in need of legal recognition and protection of their relationships.

The majority concluded: 
"...the Italian State could not reasonably disregard the situation of the applicants which corresponded to a family life within the meaning of Article 8 of the Convention, without offering the applicants a means to safeguard their relationship. However, until recently, the national authorities failed to recognise that situation or provide any form of protection to the applicants’ union, as a result of the legal vacuum which existed in Italian law (in so far as it did not provide for any union capable of safeguarding the applicants’ relationship before 2016). It follows that the State failed to strike a fair balance between any competing interests in so far as they failed to ensure that the applicants had available a specific legal framework providing for the recognition and protection of their same-sex unions".
On this basis, the Court concluded there had been a violation of Article 8.

Article 14 in conjunction with Article 8 or 12 of the Convention

The Court concluded that it was not necessary to examine whether there had been a violation under these Articles.

First thoughts on the judgment...

In one sense, the judgment in this case may appear to be disappointing because it adds little or nothing to the Court's jurisprudence on same-sex marriage. For the same-sex couples who married abroad and sought legal recognition of their marriages in Italy, the Court reminds them that no right to same-sex marriage flows from the Convention and, therefore, "States must in principle be afforded a wide margin of appreciation, regarding the decision as to whether to register, as marriages, such marriages contracted abroad".

Moreover, by refusing to even consider a complaint about the non-recognition of marriage under Article 12 (in conjunction with Article 14) the Court continues to send the message that, to put it prosaically, the right to marry enshrined in Article 12 has nothing to do with same-sex couples. So much, then, for the statement in Schalk and Kopf v Austria seven years ago that "the Court would no longer consider that the right to marry enshrined in Article 12 must in all circumstances be limited to marriage between two persons of the opposite sex". 

The judgment adds, in my view, to the general confusion in the Court's case law about the applicability of Article 12 to same-sex couples, which has resulted in complaints about marriage discrimination brought by same-sex couples being handled by the Court in very different ways: some have been declared admissible but no violation has been found, some have been declared inadmissible, and some have been said to not require examination. 

The question of "applicability", which I think remains axiomatic to complaints brought under Article 12 regarding same-sex marriage, is addressed specifically in the judgment. The majority state that 
"[s]ince the Court has already held Article 12 to be applicable to a same sex-couple wishing to marry, the provision must also be applicable to same-sex couples who are already married under the domestic system of another State". 
However, I have sympathy with the long consideration given by Dissenting Judges Pejchal and Wojtyczek to the issue of "applicability". Although I do not share their substantive view of Article 12 ("[g]ranting access to marriage within the meaning of Article 12 to same-sex couples is conceptually impossible") I do understand why they challenge the majority on the question of applicability. 

As I have stated before: if Article 12 "applies" to same-sex couples, then the Court needs to explain how depriving same-sex couples of the right to marry (or, in this case, not recognising a same-sex marriage contracted abroad) 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. In my view, Article 12, as I explained here, remains, in practical terms, inapplicable to same-sex couples. 

One clearly positive aspect of this judgment, however, is that it reiterates the Court's view that same-sex couples should be provided with a "specific legal framework providing for the recognition and protection of their same-sex unions" and, crucially, to not provide such a framework is in violation of the right to respect for family life enshrined in Article 8 of the Convention.

I also note slight glimmers of positive change in the Court's language relating to marriage. For instance, the Court states that "States are still free, under Article 12 of the Convention ... to restrict access to marriage to different-sex couples". Dissenting Judges Pejchal and Wojtyczek do not like the use of the word "still" which, I agree, "suggests the Court intends to revise this view in the future". The Court also states that the decision of a State not to permit same-sex marriage is "not condemnable under the Convention" and the introduction of the word "condemnable" is stronger than any language the Court has previously used, which opens up the opportunity to consider whether such a decision should be condemned. 

The Dissenting Opinion of Judges Pejchal and Wojtyczek

I think it is important to note the extremely disappointing comments made by Judges Pejchal (Czech Republic) and Wojtyczek (Poland) who go to great lengths to make one of the most explicitly heteronormative (and, some might say, homophobic) interpretation of the Convention ever written into a judgment of the Court (although, for some others, see here). 

Judges Pejchal and Wojtyczek argue that, for instance, "the family unit is founded primarily by a man and a woman through marriage" and that this is reflected in the right to respect for family life contained in Article 8 - a view which the Court has consistently rejected since 2010. 

Moreover, Judges Pejchal and Wojtyczek go to great lengths to establish that the fundamental meaning of marriage is based on a relationship between a man and a woman:
"Marriage in its initial meaning presupposes the community of lives between a man and a woman. We note in this context the following definitions of marriage: “Nuptiae sunt coniunctio maris et feminae et consortium omnis vitae, divini et humani iuriscommunicatio” (Modestinus, Digesta Iustiniani 23.2.1); “Nuptiae autem sive matrimonium est viri et mulieris coniunctio, individuam consuetudinem vitae continens” (Institutiones Iustiniani, 1.10). The complementariness of the biological sexes of the two spouses is a constitutive element of marriage. Moreover, marriage in this meaning is - by definition - a social institution open to procreation. The fact that certain married couples may suffer from infertility does not affect its social function. Marriage in its second meaning designates a union of two persons living together. The term “marriage” in this second sense has a different connotation and a different denotation to the term “marriage” as used in the first meaning. This second meaning has developed only recently. Granting access to marriage within the meaning of Article 12 to same-sex couples is conceptually impossible. “Extending” the scope of the right to marry to homosexual couples presupposes that the term “marriage” is used in a different meaning (that is, the second meaning explained above)."
One might wonder how, in relying on texts from at least 1500 years ago to inform their view of Article 12 and the world generally, Judges Pejchal and Wojtyczek meet the long-standing requirement placed on them to consider the European Convention on Human Rights as a living instrument that must be interpreted in the light of present-day conditions. 

Judges Pejchal and Wojtyczek also state that the Court "has no mandate to favour or inhibit societal changes". This flies in the face of general Convention jurisprudence. The Court has long established that the Convention is a "constitutional instrument of European public order” and this has led it to require changes in States in order to meet the standards of the Convention. In this sense, Judges Pejchal and Wojtyczek are wrong to end their dissenting opinion with the parting-shot that there can be “no social transformation without representation” because, clearly, all sorts of social transformation result from the judgments of the Court that go against the representations made by States. Perhaps it would have been more honest of Judges Pejchal and Wojtyczek to say that they do not favour the "social transformation" under consideration in the judgment. 




Friday, 24 November 2017

Religious marriage of same-sex couples: new report

I'm pleased to announce the publication of a new report on religious marriage of same-sex couples in England and Wales.

Same-sex marriage has been legal in England and Wales since 2013, but same-sex marriages solemnised by religious ceremonies are very small in number. This is because same-sex couples can marry in only 182 of the approximately 40,000 places of worship in which different-sex couples can marry. 

This report is the first empirical study of religious same-sex marriage. It draws on data collected from 71 places of worship that are registered to solemnise same-sex marriage. 

I hope the report will stimulate debate about the current relationship between marriage, religion, and equality on the grounds of sexual orientation.

The report can be downloaded here: http://eprints.whiterose.ac.uk/124435/1/Same_Sex_Religious_Marriage.pdf


Saturday, 18 November 2017

New communicated case about "homosexual propaganda" laws in Russia: Klimova v Russia

The Third Section of the European Court of Human Rights has communicated the case of Klimova v Russia. The case concerns the enforcement of "homosexual propaganda" laws in Russia.

The facts

The applicant, Ms Klimova, is a journalist and the founder of an online support project for LGBT teenagers “Children-404”. The name refers to the Internet error message "Error 404 - Page not found" in allusion to the invisibility of LGBT adolescents and their specific problems in an LGBT-intolerant environment of Russia.

The applicant was the administrator of the project’s Internet site and of a dedicated online community on the social networking site VKontakte which provided a space for teenagers to discuss LGBT issues and support each other.

On 3 August 2015 the applicant was found guilty of the administrative offence of “public activities aimed at the promotion of homosexuality among minors” and sentenced to a fine of 50,000 Russian roubles. The domestic courts found that the applicant, in her capacity as the administrator of the VKontakte community “Children-404”, had published users’ posts and had failed to delete users’ comments promoting homosexuality.

On 7 August 2015 the Tsentralnyy District Court of Barnaul found that the web page of the VKontakte community “Children-404” contained information prohibited for dissemination in Russia, in particular information promoting homosexuality among minors. Four unrelated VKontakte webpages (including a gay dating web page and a gay pornography web page) were also banned by the same decision for the same reasons. The applicant was not informed about the hearing and learned about the decision when the webpage was blocked. Her appeal and cassation appeals were rejected.

On 13 April 2016 the Tsentralnyy District Court of Barnaul found that the new web page of the VKontakte community “Children-404” and their Internet site also contained information promoting homosexuality among minors and should be therefore prohibited for dissemination in Russia.

Questions to the Parties

The Court has asked the parties the following questions:
  1. Did the applicant’s conviction of an administrative offence and the blocking of two web pages of the VKontakte community “Children-404” (http://vk.com/deti¬404_vk and http://vk.com/deti404_vk2) and of the related Internet site (www.deti-404.com) of which she was the administrator amount to an interference with the applicant’s freedom of expression within the meaning of Article 10 § 1 of the Convention? If so, was that interference compatible with the requirements of Article 10 § 2? In particular:
    • Was the interference prescribed by law? What legitimate aim did the contested measures pursue, were they proportionate to that legitimate aim and necessary in a democratic society?
    • Was the decision-making process leading to the interference fair and such as to afford due respect to the interests safeguarded to the individual by the Convention (see, as a recent authority, Karácsony and Others v. Hungary [GC], nos. 42461/13 and 44357/13, § 133, ECHR 2016)? In particular, did the domestic courts specify which publications were problematic (see Kaos Gl v. Turkey, no. 4982/07, §§ 57 and 58, 22 November 2016)? Did the executive authorities and the courts consider the collateral effect that a blocking decision may have on the material which has not been found to be illegal? Did the decision of 7 August 2015 make a separate assessment in respect of each of the five unrelated webpages?
  2. Has the applicant suffered discrimination on grounds of sexual orientation, contrary to Article 14 of the Convention read in conjunction with Article 10?
The webpages

The relevant webpages are:

“Children-404” (http://vk.com/deti404_vk2)
VKontakte Internet site (www.deti-404.com)

Friday, 27 October 2017

Excluding different-sex couples from registered partnerships does not violate the ECHR: Ratzenböck and Seydl v Austria

The Fifth Section of the European Court of Human Rights has issued its judgment in the case of Ratzenböck and Seydl v Austria, holding by a majority that denying a different-sex couple the opportunity to enter into a registered partnership (a legal institution in Austria exclusively reserved for same-sex couples) does not amount to discrimination on the grounds of sexual orientation in violation of Article 14 taken in conjunction with Article 8 of the European Convention on Human Rights.

Context

The context for this case is the legal situation pertaining to the recognition of couple relationships in Austria.

Different-sex couples in Austria are able to marry, whereas same-sex couples are not. Since 2010, same-sex couples have been able to enter into a registered partnership. This legal institution was introduced in order to provide same-sex couples with a formal mechanism for recognising and giving legal effect to their relationships, without giving them access to marriage.

The applicants in this case, a different-sex couple, complained that excluding them from registered partnerships amounted to discrimination based on their sex and sexual orientation. They claimed that “marriage was not a suitable alternative for them”.

The Court’s judgment

Unfortunately for the applicants, although the Court unanimously declared their application admissible it did not progress very far on the merits. This is because, pursuing its standard mode of analysis under Article 14 of the Convention, a majority of the Court concluded that the complaint did not satisfy the first “test”: that is, whether the applicants were in a relevantly similar situation to others treated differently.

The majority, in comparing the applicants with same-sex couples, concluded that they were not in a relevantly similar or comparable situation. The majority reached this conclusion principally by stating that different-sex couples have access to marriage, which satisfies their principal need for legal recognition of their relationships. They are, therefore, not comparable to same-sex couples who were given access to registered partnerships in order to counterbalance their exclusion from access to the legal recognition of their relationships prior to 2010.

Dissenting judges Tsotsoria and Grozev

Judges Tsotsoria (Georgia) and Grozev (Bulgaria) dissented from the majority judgment in terms of its approach and conclusion, arguing that the applicants had suffered a difference in treatment amounting to a violation of Article 14 taken in conjunction with Article 8 of the Convention.

The two judges argued, drawing on the Court’s existing case law, that different-sex couples and same-sex couples “are in principle in a relatively similar or comparable situation as regards their general need for legal recognition and protection of their relationship”. As such, therefore, the Court should have compared different-sex and same-sex couples for the purposes of Article 14 and then considered the Austrian government’s justification for the difference in treatment.

Since, in the view of these two judges, the Austrian government had not provided a sufficiently strong justification in support of the difference in treatment, the Court should have found a violation. To not do so, they argued, pursues “a risky course” and “inevitably runs the risk of sliding into stereotypes about the ‘different’ nature of a heterosexual and a homosexual relationship”.

Some interesting aspects of the judgment

Obviously, the question of whether in this case same-sex and different-sex couples are comparable, for the purposes of Article 14, will divide opinion.

Some will accept the Court’s approach in the light of the overall legal framework governing the legal recognition of relationships in Austria. Specifically, they will accept that it is reasonable to see the difference in treatment as having arisen from an attempt to address discrimination against same-sex couples – with registered partnerships being, not an “alternative” to marriage, but a way of giving some legal recognition to same-sex couples short of marriage – and that such a difference in treatment does not create a detriment for different-sex couples. In other words, different-sex couples are not being treated differently in a way that amounts to discrimination against them, because they already have access to the “gold standard” form of legal recognition, marriage. If any discrimination exists in the difference of treatment, therefore, it is against same-sex couples since they remain excluded from marriage. I tend towards this view myself.

Others, however, will regard the difference in treatment complained of to be based on sexual orientation (or sex) and consider that there is, in principle, no justification for it. This may be founded on the view that different-sex couples should have access to a more “modern” or “contemporary” legal institution other than marriage (which, it could be said, may be seen by some to be a different argument to one based on discrimination). It could be argued that this view is, perhaps, more persuasive in a legal jurisdiction like England and Wales in which both different-sex and same-sex couples have access to marriage, but only same-sex couples have access to civil partnerships.

What I find most interesting in the judgment are some of the remarks made by Judges Tsotsoria and Grozev. Although these judges were clearly in favour of different-sex couples having access to registered partnerships, they appear to endorse (or, at least, do not question) the current and settled view of the Court that the Convention does not guarantee same-sex couples a right to marry. They can be seen to do this by seemingly validating the Court’s view, expressed in Schalk and Kopf v Austria, that a justification for excluding same-sex couples from marriage that is “rooted in hundreds of years of history and tradition” is different to a justification about a difference in treatment based on “fresh legislative choices made today”. Are Judges Tsotsoria and Grozev endorsing the view that some discrimination is acceptable because it is rooted in history and tradition?

A further interesting point about the remarks made by Judges Tsotsoria and Grozev concerns their criticism of the majority for refusing to compare different-sex couples and same-sex couples as a “social reality”, but rather seeing them as “groups created by the legislature”. They argue:

“Different-sex couples and same-sex couples are not groups of individuals which have been created by regulatory choices. They are social groups which exist irrespective of regulatory choices…”

Such a view is in direct contrast with those who regard the “social reality” of couples, and their intimate relationships, being grouped on the basis of sex and sexual orientation as the direct outcome of regulatory choices made in society, principally by way of formalized rules enshrined in law.

A generally accepted view among sociologists, for instance, is that the social grouping of persons on the grounds of their sexual orientation flows from, and does not pre-exist, forms of legal and other regulation. In this sense, such groups are “socially constructed” by law and other means and, contrary to what Judges Tsotsoria and Grozev argue, have no independent existence outside of “regulatory choices”. By contrast, Judges Tsotsoria and Grozev can be seen to adopt an “essentialist” view of sexual orientation that has been expressed in the Court in many different ways since the time of Dudgeon v the United Kingdom.

Wednesday, 27 September 2017

Same-sex marriage and Article 3 ECHR: a new approach to addressing marriage discrimination



Paul Johnson and Silvia Falcetta

During recent months, we have been carrying out research on the utility of Article 3 of the European Convention on Human Rights for addressing discrimination on the grounds of sexual orientation.

Article 3 of the Convention provides the absolute guarantee that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment”. Given the scope of this guarantee, one might expect that Article 3 would have been a key provision for addressing the wide spectrum of ill-treatment to which individuals have been subjected because of their sexual orientation. However, since the Convention entered into force in 1953, Article 3 has rarely been utilized to address sexual orientation discrimination, and it was not until 2012 that a complaint brought under Article 3 about sexual orientation discrimination succeeded in the European Court of Human Rights.

In an article to be published in European Law Review, we provide a critical analysis of the history and evolution of the Court’s Article 3 jurisprudence in order to assess the ways in which this has developed the protection of sexual minorities in Europe. We identify major gaps in this protection, most notably in respect of asylum, and argue that the Court’s Article 3 jurisprudence should be further evolved to address these.

A key focus of our research is on how sexual minorities might better and more creatively use Article 3 of the Convention in the future to address discrimination against them. One area of discrimination we focus on specifically is in respect of marriage.

Article 3 and same-sex marriage

Article 3 of the Convention has never been invoked in a complaint to the European Court of Human Rights about the lack of access to or legal recognition of same-sex marriage. This is not wholly surprising because the Convention contains a substantive provision on marriage, enshrined in Article 12, which has been the principal focus of same-sex marriage cases both in the Court and in domestic courts in Council of Europe states. However, the key problem for those seeking marriage equality under Article 12 of the Convention is that the Court has held that this provision is founded on the concept of a “union between partners of different sex” (Schalk and Kopf v Austria, para 55) and has consistently held that it “does not impose an obligation on [a] Government to grant a same-sex couple […] access to marriage” (Oliari and Others v Italy, para 192). As a consequence, the Court maintains the inflexible view that same-sex couples have no recourse under Article 12 to being excluded from the rights and benefits attached to marriage.

The question that arises, therefore, is how it might be possible for same-sex couples to break down the “heteronormative firewall” that the Court has built around marriage. We argue that Article 3 provides such a possibility. It does so, we suggest, because Article 3 offers the opportunity to address and eradicate marriage discrimination from the standpoint of “human dignity”, respect for which is the “very essence of the Convention” (Bouyid v Belgium [GC], para 89) and “one of the most fundamental values of democratic society” (Z. and Others v the United Kingdom [GC], para 73).

The close connection between the right to marry and respect for human dignity has been thoroughly explored by courts as well as by scholars. For example, the Supreme Court of the United States of America recognized that “the transcendent importance of marriage” is the “nobility and dignity” it offers to couples, and that same-sex couples seeking access to marriage are asking “for equal dignity in the eyes of the law” (Obergefell v Hodges, 576 U.S._ (2015) 3 and 28). We think that when same-sex couples go to the European Court of Human Rights with complaints about marriage discrimination they are highlighting forms of subjective distress and injurious effects that strike at the very core of their human dignity.

Our proposition is that the damage to human dignity created by exclusion from marriage can be argued to amount to degrading treatment within the meaning of Article 3 of the Convention. Through a comprehensive assessment of the Court’s jurisprudence, we consider it reasonable and persuasive to argue that being denied access to marriage, on the basis of sexual orientation, causes forms of personal suffering and humiliation that reach the threshold set by the Court to be deemed degrading treatment under Article 3. This is because there are an extensive number of ways in which, as a result of being excluded from marriage, same-sex couples suffer humiliation and debasement in their own eyes and the eyes of others, are driven to act against their will or conscience, are treated with a lack of respect, and are diminished in the societies in which they live – forms of suffering which, in other contexts, have been held by the Court to be degrading within the terms of Article 3 (M.C. and A.C. v Romania, para 108).

We recognize that some may argue against our claim that denying same-sex couples access to marry amounts to degrading treatment contrary to Article 3 of the Convention. We seek to address, in our article, some of the legal and other arguments that might be put forward against our proposition. However, when we consider the types of treatment that the Court has considered as “degrading” in the past – for example, depriving a person in prison of his reading glasses (Slyusarev v Russia, paras 43-44) – we argue that there is scope to extend this provision to recognize the exclusion from marriage as a form of ill-treatment that is prohibited by the Convention.

The great value of seeking to address the issue of same-sex marriage under Article 3 is that it escapes the confines of Article 12 and, in doing so, avoids historical questions concerning whether the wording of the right to marry refers only to unions between men and women. This may be useful in the domestic courts, as well as the European Court of Human Rights.

For example, in cases concerning marriage discrimination in Northern Ireland, although it was recognized that the exclusion of same-sex couples from marriage created “psychiatric damage caused by isolation, insult and disapproval”, the High Court was “driven to conclude that the Convention rights of the applicants have not been violated” because “the Strasbourg Court does not recognise a ‘right’ to same sex marriage” (Close et al [2017] NIQB 79). The High Court reached this conclusion principally by considering the issue under Article 12 of the Convention and following the jurisprudence of the European Court of Human Rights on that Article. Our view is that a more fruitful way of addressing the “psychiatric damage caused by isolation, insult and disapproval” caused by excluding same-sex couples from marriage is to recognize that such “damage” is the result of a form of degrading treatment that is prohibited by the Convention under Article 3.

Reading our research

Our research will be published in European Law Review in mid 2018. However, any academic or practitioner who would like a pre-print copy of the article can request one from silvia.falcetta@york.ac.uk