Monday, 30 December 2013

Council of Europe 'LGBT Project' comes to an end

The Council of Europe's 'LGBT Project' has come to an end. 

The goal of the 28-month project was to 'contribute to the improvement of the quality of life among LGBT people in Europe' by 'supporting the governments in 5 to 10 partner member states in their efforts to develop a forceful, cross-sectoral LGBT policy, strengthening human rights for LGBT people, and supporting the national fight against discrimination on the basis of sexual orientation or gender identity'.

The Council of Europe's broadcast news outlet, The Journal, reports that 'other projects are likely to follow given the success of this first initiative'.




Friday, 20 December 2013

Perinçek v. Switzerland - a reference to the importance of protecting the rights of homosexuals

On the 17th December 2013 the European Court of Human Rights held by a majority, in Perinçek v Switzerland, that the applicant had suffered a violation of his Article 10 rights after being convicted under the criminal law for publicly challenging the existence of the Armenian genocide.

The Court found that Mr Perinçek, who during various conferences in Switzerland, had described the Armenian genocide as an 'international lie', had not committed an abuse of his rights within the meaning of Article 17 of the Convention.

In its discussion of what would constitute an abuse of rights under Article 17, the Court, referring back to its earlier decision in Molnar v Romania, stated that public speech that is intended to instigate hatred against the 'homosexual minority' and is likely to seriously disrupt public order goes against the fundamental values ​​of the Convention and of a democratic society. When such speech infringes the rights of others, it is incompatible with democracy and human rights and, under the provisions of Article 17, individuals cannot rely on Article 10 to protect such speech. 

Judgment in full (but available in French only) here:


Press Release of the Court here:


Wednesday, 27 November 2013

Updated factsheets from the Court and list of sexual orientation cases

The European Court of Human Rights has updated its factsheets for 'Homosexuality: criminal aspects' and 'Sexual Orientation'.

Both factsheets were updated this month and give details and links to various important pending cases, including:


Note that the criminal aspects factsheet lists Georgescu v Romania as pending but, as I reported two weeks ago, the Court have deemed this complaint inadmissible.

***

I have also updated the chronological list of ECHR sexual orientation complaints to include recent decisions and judgments and have made some other small additions and corrections.

The updated list can be found here:

https://docs.google.com/file/d/0ByFm9fY-KH05bl8xekNXdGc2Zkk/edit?usp=sharing&pli=1



Monday, 25 November 2013

Isle of Man: repeal your discriminatory laws and join the twenty-first century

A year ago I published an article in Jurist 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.

That law still exists and, as a consequence, gay men living on the Isle of Man continue to inhabit a legal environment which criminalizes consensual sexual practices in which they might engage.

Isle of Man law

By virtue of S.9 Sexual Offences Act 1992 the Isle of man continues to criminalize the 'unnatural offences' of 'buggery' and 'gross indecency' - offences which have been repealed in England and Wales, Scotland and Northern Ireland.

S.9(1) of the 1992 Act which covers buggery is written in gender-neutral terms, but S.9(4) which covers gross indecency relates 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) specifies that buggery and gross indecency shall not be treated as being in private if 'more than 2 persons are present' or an act is done in 'any place to which the public have or are permitted to have access, whether on payment or otherwise'.

The 1992 Act also maintains a total prohibition on buggery and gross indecency aboard merchant ships, but only in relation to men. S.10(3) of the 1992 Act states that the provisions that partially decriminalize buggery and gross indecency do 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). Any consensual sexual act committed between adult men serving as crew on a Manx merchant ship will therefore constitute a criminal offence.

Why is this problematic?

The mere existence of criminal law which subjects homosexual sexual acts to heightened regulation is a form of discrimination unacceptable under international human rights law.

Although the Isle of Man is a Crown dependency and not constitutionally part of the UK, it is contracted to the European Convention on Human Rights through its relationship with the UK and has also incorporated the Convention into its domestic law through its own Human Rights Act 2001.

It is not difficult to find Convention jurisprudence that makes the law in the Isle of Man appear very problematic.

In respect of the specific offences of buggery and gross indecency that subject homosexual acts to greater regulation there is ample case law which states that this form of differentiation on the basis of sexual orientation amounts to discrimination contrary to Article 14 taken in conjunction with Article 8 of the Convention. For example, in Kozak v Poland the European Court of Human Rights held that:
When [a] distinction [...] operates in this intimate and vulnerable sphere of an individual's private life, particularly weighty reasons need to be advanced before the Court to justify the measure complained of. Where a difference of treatment is based on sex or sexual orientation the margin of appreciation afforded to the State is narrow and in such situations the principle of proportionality does not merely require that the measure chosen is in general suited for realising the aim sought but it must also be shown that it was necessary in the circumstances. Indeed, if the reasons advanced for a difference in treatment were based solely on the applicant's sexual orientation, this would amount to discrimination under the Convention (emphasis added).
Singling out adult male homosexual acts for specific legal regulation is most certainly an interference with an 'intimate and vulnerable sphere' of private life and is unquestionably based solely on sexual orientation.

The Court has also 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. 

In regard to the total prohibition on male homosexual sex among members of crews aboard merchant ships, this is contrary to the Court's interpretation of Article 8 of the Convention. It is unlikely that, following Dudgeon v the United Kingdom, the Court would accept that criminalizing homosexual acts on board merchant ships was a proportionate response to meeting a pressing social need. In Smith and Grady v the United Kingdom, the Court held that making homosexual acts a ground for dismissal from a workplace is a violation of Article 8 of the Convention. Therefore, the criminalization of adult homosexual acts would almost certainly be deemed to be a violation of the right to respect to private life guaranteed by Article 8 of the Convention.

What should be done?

The Isle of Man needs to revise its sexual offences provision urgently. It needs 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 UK Government should also act to remedy this situation. Under the terms of the relationship between the UK and the Crown Dependencies the 'Ministry of Justice examines legislation [of the Isle of Man] to ensure in particular that there is no conflict with international obligations'.

There are clear inconsistencies between Isle of Man and international human rights law in respect of consensual sexual acts committed between adult men.  



Saturday, 23 November 2013

Second Reading of UK 'Withdrawal from the European Convention' Bill postponed

The UK House of Commons was scheduled to consider the Private Member's 'Withdrawal from the European Convention of Human Rights and Removal of Alleged Terrorists' Bill next Friday. This has now been postponed until February of next year. 

Although this Bill is unlikely to be successful it will be interesting to see if it receives any Parliamentary debate and, if so, what the content of that debate is. 

Will the Bill provide the parliamentary platform for those MPs who, as Justice Secretary Chris Grayling put it two days ago, feel the Court's jurisprudence is now 'too far away from the original intentions of its creators to be acceptable'?


Thursday, 14 November 2013

Georgescu v Romania - inadmissible

The Third Section of the European Court of Human Rights have deemed the complaint in Georgescu v Romania inadmissible.

The facts

The applicant, Mr Adrian Costin Georgescu, is a Romanian national and a member of the non-governmental organisation ACCEPT which campaigns against discrimination on the grounds of sexual orientation in Romania.

The applicant's complaint related to his questioning by the police on 19 December 2000 as part of a murder investigation in which the victim was a homosexual.

The applicant was telephoned by a police sergeant and asked to attend police headquarters but was not informed of the reasons for this request. When he attended the police station he was interviewed, again without being given information about the nature of the investigation. During the interview the interviewing officer asked the applicant questions about his sexual orientation. 

The applicant claimed that he was emotionally traumatised by the police interview. 

On 27 December 2000 and 15 January 2001, the applicant filed two complaints in respect of abuse of office and abusive behaviour in respect of his treatment by the police. Failure of these complaints resulted in the applicant, assisted by ACCEPT, filing a complaint with the Supreme Court of Justice. That complaint was recorded at the Supreme Court of Justice on 29 November 2001 but the applicant was not contacted or informed of the outcome of his complaint.

In 2010 the applicant asked the High Court of Cassation and Justice (former Supreme Court) about the progress of the complaint. By letter dated 28 January 2010, the High court informed the applicant that there was no record of his complaint.

Complaint

The applicant complained, inter alia, that the investigations on 19 December 2000 by the police violated his rights under Articles 3, 8, 13 and 14 of the Convention.

The applicant complained that during the interrogation he was subject to inhuman and degrading treatment because of the content of the interrogation and the fact that he was photographed and his fingerprints were taken. He also complained that he was the victim of discrimination based on sexual orientation.

Court decision

Drawing on its judgment in Smith and Grady v the United Kingdom the Court held that the interrogation and investigation did not reach the minimum level of severity to fall within the scope of Article 3 of the Convention.

In respect of the other aspects of the complaint under Articles 8, 13 and 14 the Court did not consider the merits. 

Rather, the Court rejected the applicant's complaint under Article 35 of the Convention for being out of time because it was made six months after the final decision of the domestic authorities. 

Although the applicant had filed a complaint with the Supreme Court and had not heard back from them, the Court held that he should have realised that the case was not progressing and contacted the Supreme Court. The Court stated that, instead of undertaking this action, the applicant 'remained completely passive for more than a year without demonstrating the existence of specific circumstances that could justify [...] his inaction'. 

On the basis of its conclusion under Article 35, the Court deemed the application inadmissible. 


Monday, 11 November 2013

Consensus analysis in Vallianatos and Others v Greece

Further to my post on the ECHR Blog in respect of Vallianatos and Others v Greece, I have been reflecting more on the use of consensus analysis in the judgment.

Here is what I wrote on the ECHR Blog:

A further interesting feature of the Court’s review is its discussion of European consensus on partnership rights. The Court noted that ‘although there is no consensus among […] member States, a trend is currently emerging with regard to the introduction of forms of legal recognition of same-sex relationships’ and cited the existence of ‘seventeen member States [that] authorise some form of civil partnership for same-sex couples’. In light of this, the Court stated that ‘the trend emerging in […] member States is clear: of the nineteen States which authorise some form of registered partnership other than marriage, Lithuania and Greece are the only ones to reserve it exclusively to different-sex couples’. The Court, therefore, observes that Lithuania and Greece are out-of-step with the other seventeen states that have an alternative system to marriage for recognizing relationships and make this available to same-sex couples. However, as if to further justify the relevance of this ‘clear trend’ to its judgment, the Court states:

‘In other words, with two exceptions, Council of Europe member States, when they opt to enact legislation introducing a new system of registered partnership as an alternative to marriage for unmarried couples, include same-sex couples in its scope’.

This statement, as I read it, is factually problematic because some member states among the seventeen said to constitute the ‘clear trend’ (that is the states, excluding Greece and Lithuania, that have civil partnership legislation that extends to same-sex couples) did not enact civil partnership legislation as ‘an alternative to marriage for unmarried couples’. In the United Kingdom, for example, because opposite-sex couples are excluded from registering a civil partnership (and have no alternative to marriage) the Civil Partnership Act 2004 cannot be described as ‘a new system of registered partnership as an alternative to marriage for unmarried couples’ that was designed to ‘include same-sex couples in its scope’. The Court seems to suggest that there is a ‘trend’ in Europe for introducing legislation to make available to all unmarried couples an alternative system of registered partnership and that Greece and Lithuania are out of step with this. But the trend is not as simple as this as not all contracting states that enacted civil partnership legislation made it available to all married couples (as in the United Kingdom) and, therefore, those states are not pursuing the objective implied by the Court. In the case of the United Kingdom, for example, the ambition of the Civil Partnership Act 2004 was not to offer ‘unmarried couples’ an alternative system to marriage but to offer same-sex couples a system of partnership registration that was not marriage. In addition to this, opponents of same-sex partnership rights will point out that Greece is not out-of-step in withholding partnership rights to same-sex couples and, on the contrary, is in line with the majority of other contracting states. Therefore, the Court’s consensus analysis as a basis for supporting its judgment bears (as is often the case) some additional scrutiny. This is especially so since the consensus argument of the majority is invoked by Judges Casadevall, Ziemele, Jočienė and Sicilianos in their joint concurring opinion to justify their decision in this case as opposed to their dissenting position taken in X and Others v. Austria.

The key issue for me in respect of the Court's use of consensus analysis is its statement that 'member States, when they opt to enact legislation introducing a new system of registered partnership as an alternative to marriage for unmarried couples, include same-sex couples in its scope’.

A closer look at the Court's claim

The key question asked by the Court in Vallianatos and Others v Greece was 'whether the Greek State was entitled, from the standpoint of Articles 14 and 8 of the Convention, to enact a law introducing alongside the institution of marriage a new registered partnership scheme for unmarried couples that was limited to different-sex couples and thus excluded same-sex couples'?

To answer that question, the Court relied upon data relating to same-sex marriage and civil partnership legislation in Europe.

The most important aspect of the Court's data is as follows:

'The comparative law material available to the Court on the introduction of official forms of non-marital partnership within the legal systems of Council of Europe member States shows that [...] seventeen member States (Andorra, Austria, Belgium, the Czech Republic, Finland, France, Germany, Hungary, Iceland, Ireland, Liechtenstein, Luxembourg, the Netherlands, Slovenia Spain, Switzerland and the United Kingdom) authorise some form of civil partnership for same-sex couples'.

It is from this that the Court draws its conclusion that: 

'...the trend emerging in the legal systems of the Council of Europe member States is clear: of the nineteen States which authorise some form of registered partnership other than marriage, Lithuania and Greece are the only ones to reserve it exclusively to different-sex couples [...] In other words, with two exceptions, Council of Europe member States, when they opt to enact legislation introducing a new system of registered partnership as an alternative to marriage for unmarried couples, include same-sex couples in its scope'.

Does the data provided by the Court support its statement that there is a clear trend that states are introducing an alternative system to marriage for unmarried couples, including same-sex couples within its scope, and that Greece and Lithuania are outliers?

Of the 17 contracting states included in the Court's list, the following can be observed:


  • Iceland should not be included in the list because, since 2010, it no longer provides civil partnerships for same-sex couples but enables all couples (regardless of sex) to marry. In this sense, Iceland is similar to Denmark, Norway and Sweden - they are all countries that introduced civil partnerships for same-sex couples and then replaced them with full marriage recognition.
  • The only countries that have made available an alternative system to marriage for unmarried couples and included same-sex couples within its scope are: Andorra, Belgium, France, Luxemburg, the Netherlands and Spain (6).
  • The countries that have made civil partnerships available exclusively for same-sex couples and offer unmarried opposite-sex couples no alternative to marriage are: Austria, the Czech Republic, Finland, Germany, Hungary, Ireland, Liechtenstein, Slovenia, Switzerland and the United Kingdom (10).


The first conclusion to be drawn from this is that only 6 contracting states can be cited in support of the claim about a trend of states enacting 'legislation introducing a new system of registered partnership as an alternative to marriage for unmarried couples [that] include[s] same-sex couples in its scope'.
The second conclusion is that a larger group of contracting states can be cited to contradict the claim about a trend because 10 states did not enact legislation to provide an alternative to marriage for unmarried couples. In limiting civil partnerships to same-sex couples to whom marriage was not available these states provided no alternative to marriage to any unmarried couple (the word 'alternative' implies choice).
The third conclusion is that Greece and Lithuania are not outliers in Europe in respect of a trend regarding partnership recognition as presented by the Court. In not making partnership registration available to same-sex couples, these two states simply conform to the majority position in Europe which is to not provide same-sex couples with any form of partnership recognition.

Ultimately, therefore, although it is correct to observe, as the Court does, that 'of the nineteen States which authorise some form of registered partnership other than marriage, Lithuania and Greece are the only ones to reserve it exclusively to different-sex couples' it is not correct to conclude that 'with two exceptions, Council of Europe member States, when they opt to enact legislation introducing a new system of registered partnership as an alternative to marriage for unmarried couples, include same-sex couples in its scope'.
Does the substance of consensus analysis matter?
In one sense, the fine detail of the Court's consensus analysis may appear unimportant - especially if one believes (as I do) that the Court ultimately reached the correct conclusion in Vallianatos and Others v Greece.
However, the methods by which the Court reaches its judgments are of crucial importance.
This is because, from a closer inspection of the data provided, it becomes clear that it would have been perfectly prossible for the Court to reach a different judgment in this case on the basis of consensus analysis. The Court could have stated, for instance, that a wide margin of appreciation was available to Greece because of an absence of consensus in Europe in respect of the arrangements relating to marriage and civil partnership. The Court could have stated that because contracting states are so divided on whether to offer  an alternative to marriage to opposite sex couples (in some states, such as Hungary, the suggestion to offer an alternative to marriage to opposite-sex couples caused a major constiutional event) that no conclusion could be drawn in respect of the situation in Greece.
In my view, consensus analysis was irrelevant to Vallianatos and Others v Greece and the Court should not have invoked it. Although, as I have argued elsewhere, the Court uses consensus analysis as a device to legitimize its reasoning, it is often highly problematic.
In my opinion, the reason the Court relied on consensus analysis in this case was because it simply asked the wrong question. Instead of asking the question it did ('whether the Greek State was entitled, from the standpoint of Articles 14 and 8 of the Convention, to enact a law introducing alongside the institution of marriage a new registered partnership scheme for unmarried couples that was limited to different-sex couples and thus excluded same-sex couples'?) the Court should have considered whether the absence of any available partnership recognition for the applicants was in principle a form of discrimination contrary to Article 14 taken in conjunction with Article 8.

Friday, 8 November 2013

Thursday, 7 November 2013

Two significant ECtHR judgments today in respect of same-sex civil partnership rights and the retention of criminal records for historic offences

The European Court of Human Rights has today issued two significant judgments in respect of sexual orientation.

Vallianatos and Others v Greece

In Vallianatos and Others v Greece the Grand Chamber held by 16-1 that a Greek law that enables only opposite-sex couples to register a 'civil union' is, in the absence of convincing and weighty reasons capable of justifying the exclusion of same-sex couples, in violation of Article 14 taken in conjunction with Article 8 of the Convention. 

This is an important judgment and I will be providing a commentary on it soon on the ECHR Blog.

E.B. and Others v Austria

In E.B. and Others v Austria, four applicants complained to the Court about the existence of criminal records in respect of historic convictions under Article 209 of the Criminal Code. 

Article 209 of the Criminal Code, in force until 14 August 2002, dealt with consensual homosexual acts in the following terms: 

A male person who, after attaining the age of nineteen, fornicates with a person of the same sex who has attained the age of fourteen years but not the age of eighteen years, shall be sentenced to imprisonment of between six months and five years.

Article 209 effectively maintained a different 'age of consent' for male homosexual acts to that set for opposite-sex acts and same-sex acts between women.  

In 2002 the Constitutional Court of Austria found that Article 209 was unconstitutional

In L. and V. v Austria the European Court of Human Rights held that Article 209 of the Criminal Code 'embodied a predisposed bias on the part of a heterosexual majority against a homosexual minority, [and that] these negative attitudes cannot of themselves be considered [...] to amount to sufficient justification for the differential treatment any more than similar negative attitudes towards those of a different race, origin or colour'. It accordingly found a violation of Article 14 of the Convention taken in conjunction with Article 8.

In the present case, the applicants stressed that their complaints did not concern their original convictions under Article 209 of the Criminal Code, but 'the social stigma which still attached to their convictions even today'. They argued that the 'criminal record of their convictions was accessible to law-enforcement authorities and also appeared in their character references (Leumunds­zeugnis)'. They also argued that 'the maintaining of the entry extended the period for which other convictions had to remain on their criminal records [and], [m]oreover, criminal courts could take such convictions as an aggravating circumstance in subsequent criminal proceedings'.

In its consideration of the applicants' complaint under Article 14 of the Convention read in conjunction with Article 8 the Court noted that under Austrian law '[t]he mere fact that a criminal conviction that occurred in the past was based on a legal provision which has lost its force of law will normally have no bearing on the conviction’s remaining on the person’s criminal record, as it concerns essentially a fact from the past. Abolishing an offence or substantially modifying its essential elements does not mean that the provision, at the time it was in force and applied, did not meet all the requirements under constitutional law'.

The Court went on to state that the 'situation is different, however, as regards convictions under Article 209 of the Criminal Code. Parliament repealed and replaced Article 209 by a substantially different provision because the Constitutional Court had found that it was not objectively justified and therefore unconstitutional, and the Court had found that convictions under that provision violated Article 14 of the Convention read in conjunction with Article 8'. 

The Court stated, therefore, that 'the present case requires a different response by the legislator'. 

The Court concluded:

'Since keeping an Article 209 conviction on someone’s criminal record may have particularly serious consequences for the person concerned, the legislator, when amending the relevant legal provision in order to bring it into conformity with modern standards of equality between men and women, should have provided for appropriate measures, such as introducing exceptions to the general rule [in respect of retaining criminal records]'.

Because the Austrian government had given no explanation for retaining the criminal records the Court held that there had been a violation of Article 14 of the Convention taken in conjunction with Article 8.

Rechtskomitee LAMBDA (RKL) are very pleased with this result and have already urged 'Austrian law-makers to pass the Amnesty, Rehabilitation and Compensation Act' in light of the Court's judgment. 


Tuesday, 5 November 2013

Bayev v Russia - challenging 'homosexual propaganda' laws

The European Court of Human Rights have communicated the complaint in Bayev v Russia.

The three applicants complain about their arrest and conviction under regional administrative laws regulating public actions aimed at propaganda of homosexuality among minors.

The applicants complain under Article 10 of the Convention 'about the ban on public statements concerning the identity, the rights and social status of sexual minorities'. They argue that 'the prohibition of “homosexual propaganda” introduced by the recent legislation constitutes a blanket ban on the mere mention of homosexuality and that it applies irrespective of the content of the message'.

The applicants also complain that the 'blanket ban' on mentioning homosexuality is discriminatory and therefore in breach of Article 14 of the Convention.

The Court has communicated the following questions to the parties:
  1. Has there been a violation of the applicants’ right to freedom of expression, contrary to Article 10 of the Convention?
  2. Do Russian legal provisions governing administrative liability for “propaganda of homosexuality among minors” meet the “quality of law” requirements contained in Article 10 § 2 of the Convention?
  3. Have the applicants suffered discrimination in the enjoyment of their Convention rights, contrary to Article 14 of the Convention read in conjunction with Article 10?
This is a significant complaint given the subsequent enactment of federal law regulating 'propaganda of non-traditional sexual relations among minors'.

If the Court upholds the applicants' complaint it will be the first time that it has found a violation of Article 10 of the Convention in respect of a complaint brought by a homosexual applicant.

Thursday, 31 October 2013

Vallianatos and Others v Greece - Grand Chamber judgment next week

The European Court of Human Rights will be delivering a Grand Chamber judgment in the case of Vallianatos and Others v Greece at a public hearing on 7 November 2013 at 11 a.m. (local time). 

The case concerns 'civil unions' in Greek law, which enable different-sex couples to register an official partnership as an alternative to marriage. 

The applicants complain that civil unions automatically exclude same-sex couples from registering a partnership and thereby violate their rights under the European Convention on Human Rights.

In particular, the applicants complain that:

  • the fact that civil unions are designed only for different-sex couples infringes their right to private and family life under Article 8;
  • and that their exclusion amounts to unjustified discrimination between heterosexual couples and homosexual couples under Article 14.

The Grand Chamber judgment is important because it will be the first judgment by the Court in respect of same-sex civil partnership rights outside of marriage.

In this sense, the judgment addresses a different issue to that raised in previous and on-going complaints about the exclusion of same-sex couples from marriage.

Which way will the Court go?

It is difficult to predict which way the Grand Chamber will vote on this issue. In Schalk and Kopf v Austria the Chamber sidestepped the issue of whether a right to some form of partnership recognition was available to same-sex couples under the Convention (§ 103) and stated that contracting states 'enjoy a margin of appreciation in the timing of the introduction of legislative changes' (§ 105). The Court therefore dismissed the complaint that a lack of legal recognition for same-sex relationships violated both Articles 8 and 14 of the Convention.

However, the Dissenting opinion filed by Judges Rozakis, Spielmann and Jebens in Schalk and Kopf v Austria gives some cause for optimism. These judges criticised the majority decision to find no violation of the Convention in respect of the complaint about no legal framework being available for same-sex couples because it 'endorses the legal vacuum [...] without imposing on the respondent State any positive obligation to provide a satisfactory framework, offering the applicants, at least to a certain extent, the protection any family should enjoy'. They stated:

Today it is widely recognised and also accepted by society that same-sex couples enter into stable relationships. Any absence of a legal framework offering them, at least to a certain extent, the same rights or benefits attached to marriage [...] would need robust justification, especially taking into account the growing trend in Europe to offer some means of qualifying for such rights or benefits.

The central question in Vallianatos and Others v Greece, therefore, is whether the Grand Chamber will accept any of the reasons given by the Greek government for excluding same-sex couples from registering civil union as robust enough to justify a difference in treatment on the grounds of sexual orientation. 

What are the implications of the judgment?

The judgment is important for two reasons:

  • First, the judgment will effectively determine whether same-sex couples have a right under Article 8 to some form of official partnership recognition.
  • Second, the judgment will determine whether states that provide an alternative scheme of partnership recognition to marriage to different-sex couples are obliged to make this available to same-sex couples so as not to violate their Article 14 rights. 

The judgment will therefore have implications for all those contracting states that continue to deny same-sex couples the opportunity to register a partnership. 

Wednesday, 30 October 2013

Heli Hämäläinen: Defending our faith and marriage


As readers of this Blog will know, I have followed the case of Hämäläinen v Finland (formerly H. v Finland) for some time. I wrote a critique of the original Chamber judgment in Jurist the day after it was issued, and have posted regularly on the case since then. The applicant's lawyer, Constantin Cojocariu, also contributed a guest post to the Blog prior to the case being accepted for referral to the Grand Chamber.   
I am therefore delighted to now post a piece by Heli Hämäläinen herself. In this piece, Heli, as well as her wife (through correspondence to the Court), explain that, in their view, the requirement to divorce in order to gain full gender recognition centres on an issue of faith. Heli and her wife are Evangelical Lutherans who feel that, regardless of the circumstances of sex/gender, they should not be compelled to degrade their marriage sacraments. 
For me, Heli's post further confirms the important issues raised by the complaint under the Convention for all couples who, by virtue of sex, are not afforded the recognition available to heterosexual couples. It also reveals a rich vein of potential arguments to be made under Article 9 of the Convention: does the failure to recognise the marriage of couples in Heli's position violate the right to freedom of religion?
As Heli recognises, some of the arguments made in her post are controversial. For me, as I have often argued, I find the distancing of the facts from the broader issues of same-sex marriage problematic. However, I think that her argument acutely demonstrates the pain and suffering created by the divergence between the reality of her life and the fiction of law. 

Defending our faith and marriage, by Heli Hämäläinen
On 16 October the Grand Chamber of the European Court of Human Rights had a hearing in the case Hämäläinen versus Finland, 37359/09. The case was referred to the Grand Chamber by me. I am the applicant of that case.
The Court put questions that were recorded in a webcast here. It was observed by the audience that consisted of inter alia Polish judges and prosecutors, Belgian judges, Supreme Court of Norway, Registry of the German Federal Constitutional Court, Ukranian judges, as well as judges from Luxembourg.
In those questions, among others, there was a question about the motives of my wife. I told her about these questions and she was willing to write a letter to the Court where she tells her opinion. I have edited her opinion in a way in this blog that I maintain her privacy.

27 October 2013 
To the European Court of Human Rights
Dear President of the European Court of Human Rights,
I am [Her name], the wedded wife of my spouse Heli Hämäläinen who had a name [male name] when we joined in a holy matrimony, a religious marriage in Keuruu church on 27 July 1996. I was born and grew in Keuruu that is a municipality in Central Finland province.
I am not an applicant of the ongoing case but the questions asked by the Judge Päivi Hirvelä and partly by the Judge András Sajó concerns deeply my personal private life. I want to answer these questions with this letter.
The Judge Päivi Hirvelä asked did I objected to the legal recognition of the acquired gender of my spouse. My answer is that this consent is similar to the wedding vows. If I had consented my religious marriage would have been turned into a civil one because there is no religious registered partnership available in the Finnish legislation. I did not want to give up my wedding vows with a new civil ceremony.
I was not aware of the transsexuality of my husband when we married because it was a hidden secret. My husband wanted to keep this issue in a closet until after the birth of our daughter in autumn 2004 he told me about his problems, e. g. teasing advertisements that haunt him and remind him about womanhood. I proposed that he should seek for professional help. And he did. He was sent to transsexuality investigations in accordance with the Decree of the Ministry of Social Affairs and Health No. 1053/2002. He got a diagnosis F64.0 in April 2006 that actually he is a she and I have to adapt to that fact.
I have considered the found transsexuality as an illness. It is like cancer, there is a treatment practice for that illness. I am aware that when I call this phenomenon an illness I may hurt someone. But since in Finland it has a diagnosis and requires an intervention of modern medicine I can call it an illness. There is no spousal consent required in Finland for the treatment of illnesses. That treatment of illnesses is regulated by the civil code No. 785/1992, Act on the Status and Rights of Patients. The only cases when a consent is required by that law is when there are underage children or people with a lost mental capacity concerned. And as a wife of the patient I am not a patient nor under any treatments. 
Summarizing everything aforementioned , I was never asked a question whether I accept the change of gender of my spouse. I was asked a question whether I consent with the degradation of my religious marriage to something else. And my answer is no. The documentation of this event is in the decision of Helsinki Magistrate No 23/07:
 ”Hämäläinen on avioliitossa. Helsingin maistraatissa Hämäläisen aviopuoliso on ilmoittanut henkilökohtaisesti, ettei hän anna tai tule antamaan suostumusta avioliiton muuttamiseksi rekisteröidyksi parisuhteeksi.”
 ”Hämäläinen is married. In Helsinki Magistrate the marital spouse of Hämäläinen has informed in person that she is not giving or will not consent to the transform of her marriage into a registered partnership.”
 Helsinki Magistrate repeats this in other wording in its rejoinder to the appeal of my husband to Helsinki Administrative Court, Nro: 25/07:
 ”Lain 2§:n mukaan voidaan poikkeuksellisesti avioliitossa elävän vastakkainen sukupuoli vahvistaa, jos toinen osapuoli on antanut muutokseen suostumuksensa. Hakijan vaimo ei ole suostunut avioliiton muuttamiseen rekisteröidyksi parisuhteeksi. Sen vuoksi valitus tulisi hylätä.”
”According to the section 2 of the act, the opposite gender of the married applicant can be recognized exceptionally, if the other party has consented with the transformation. The wife of the applicant has not consented with the transformation of marriage into a registered partnership. Therefore the appeal should be rejected.”
The question is about the religious marriage. I have entered into a holy matrimony and other arrangement is against my religious conviction and puts me in an unequal position vis-à-vis compared to other wives having a spouse with a treatable disease.
 Yours faithfully,
 [Her name]
the wife of the applicant

I agree with her though I know that the comparison of transsexuality with a serious illness is quite controversial in some circles.
While the tendency of the Finnish government representatives was to produce proof how civil marriage is similar to the registered partnership, they parallelled a religious marriage with a registered partnership ignoring its religious importance in the case in question.
In Finland a religious marriage does not have a religious counterpart in the Act on registered partnerships. The provisions are enacted in the Marriage act (234/1929).

Chapter 4 — Marriage ceremony (411/1987)

Section 14 (411/1987)

(1) A marriage ceremony shall be performed in the presence of relatives or otherwitnesses either as a religious or a civil ceremony.
(2) A religious ceremony may be performed in an Evangelical Lutheran church or in aGreek Orthodox church or in another religious community to which the Ministry ofEducation has granted a license to perform marriage ceremonies.
(3) Provisions on the registration of licenses to perform marriage ceremonies shall beissued by Decree. (417/1993)

Section 15 (411/1987)

The engaged persons shall be simultaneously present at the marriage ceremony.
After both engaged persons have given the officiator of the ceremony an affirmative answer to the question whether he or she wants to marry the other, the officiator shall pronounce them husband and wife.

Section 16 (411/1987)

(1) In addition to the provisions in section 15, the other conditions and forms of a religious marriage ceremony shall be laid down by the religious community in question.
(2) Provisions on a civil marriage ceremony shall be issued by Decree.

Section 17 (411/1987)

(1) A religious marriage ceremony may be performed by:
(1) in the Evangelical Lutheran church by a priest;
(2) in the Greek Orthodox church by a priest; and
(3) in another religious community by a person who, under the rules of the community, has the right to perform marriage ceremonies.
(2) A civil marriage ceremony shall be performed by:
(1) the Chief Judge of a District Court, a District Judge, and
(2) a District Registrar. (1428/1992)

Section 18 (411/1987)

(1) A marriage ceremony shall not be performed if the officiator is aware of a fact that forms an impediment to the marriage or if the officiator deems that an engaged person is evidently unable to understand the significance of marriage due to his or her disturbed state of mind.
(2) Before performing the marriage ceremony, the officiator shall make sure that the examination of impediments to marriage has been carried out in accordance with the provisions in sections 11—13. If the certificate referred to in section 13 has been issued more than four months before, the marriage ceremony shall not be performed on the basis thereof.

Section 19 (411/1987)

(1) A marriage ceremony shall be void if it has not been performed in accordance with the provisions of section 15 or if the ceremony has been performed by a person without the right to perform marriage ceremonies.
(2) The President of the Republic may, however, for especially weighty reasons decide that a marriage ceremony void under paragraph (1) shall be deemed valid. A petition to this effect may be filed by either of the persons married or, if one of them is dead, by his or her heirs.

In the Section 4 of the Act on Registered Partnerships (950/2001) is enacted
Section 4
(1) Partnership shall be registered by an authority entitled to perform civil marriage ceremonies.
The law clearly distinguishes between religious and civil marriages. The Ratione Materiae has to be extended with the consent of the spouse only. In that case the civil marriage officiator asks from the spouse does she consent with the transformation of a religious marriage into a registered partnership that is to some extent compatible with a civil marriage. If that consent is needed the whole scope of the prerequisite is of not being in a religious marriage. So the legislator trades the wedding vows of the spouse with the gender recognition of the transsexual other party of the marriage. 

We have been attacked by the Catholic society. In their point of view they oppose my gender recognition on the ground that it would allow the introduction of a same-sex marriage that way.

http://www.zenit.org/en/articles/marriage-and-gender-identity-before-european-rights-court

http://www.ordoiuris.pl/h--v-finlandia--malzenstwo-i-tozsamosc-plciowa-przed-wielka-izba-europejskiego-trybunalu-praw-czlowieka,3293,analiza-prawna.html

This case is not about same-sex marriages. It is about the defence of faith.

Matthew 19:3-6
New Revised Standard Version Catholic Edition (NRSVCE)
3 Some Pharisees came to him, and to test him they asked, “Is it lawful for a man to divorce his wife for any cause?” 4 He answered, “Have you not read that the one who made them at the beginning ‘made them male and female,’ 5 and said, ‘For this reason a man shall leave his father and mother and be joined to his wife, and the two shall become one flesh’? 6 So they are no longer two, but one flesh. Therefore what God has joined together, let no one separate.

That is an ultimate interdict. It concerns free men and slaves equally. It is a God's commandment, do not touch the marriages that have become families. We are one flesh, at least in our offspring.
We are not Catholic. We are members of the Evangelical Lutheran Church of Finland. The Catholics are degrading their marriage sacrament when they are demanding divorces in the case of marriages having one transsexual party. Jesus puts it:

Matthew 25:40

New Revised Standard Version Catholic Edition (NRSVCE)
40 And the king will answer them, ‘Truly I tell you, just as you did it to one of the least of these who are members of my family, you did it to me.’

For us marriage is not a sacrament. Instead we want to follow the scripture here. Sola Scriptura. As Martin Luther put it:

"Unless I am convinced by the testimony of the Scriptures or by clear reason (for I do not trust either in the pope or in councils alone, since it is well known that they have often erred and contradicted themselves), I am bound by the Scriptures I have quoted and my conscience is captive to the Word of God. I cannot and will not recant anything, since it is neither safe nor right to go against conscience. May God help me. Amen."




Thank to Heli for this post, which was originally made available here: