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. 


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