Thursday, 28 February 2013

Vallianatos and Mylonas v Greece and C.S. and Others v Greece

Although slightly old news, it is worth flagging up that the Grand Chamber hearing in Vallianatos and Mylonas v Greece and C.S. and Others v Greece held on 16 January 2013 is now available to watch on the website of the European Court of Human Rights. 

This is a significant case, since it relates to discrimination on the grounds of sexual orientation in respect of legal differences between 'civil partnerships' and marriage. 

The Court has previously held (in Schalk and Kopf v Austria, Gas and Dubois v France, and X. and Others v Austria) that when a Contracting State chooses to provide same-sex couples with an alternative means of legal recognition to marriage, it enjoys a certain margin of appreciation as regards the exact status conferred. 

The applicants in 
Vallianatos and Mylonas v Greece and C.S. and Others v Greece are eight Greek nationals who live in Athens and an association with its registered office in Athens. Some of the applicants live together as couples, while others are in a relationship but do not live together. 

The complaint relates to Greek law no. 3719/2008, which entered into force in November 2008. It made provision for the first time in Greece for an official alternative to marriage, in the form of 'civil unions' (σύμφωνο συμβίωσης). Such unions are reserved exclusively to two different-sex adults. 
Civil unions are entered into by means of a notarial instrument registered with the civil registry. 

Relying on Article 8 of the Convention, taken alone and in conjunction with Article 14 of the Convention, the applicants complain that the Law, which limits civil unions exclusively to adults of different sex, breaches their right to respect for their private life and the principle of prohibition of discrimination. Under Article 13 of the Convention, the applicants further complain of the absence of an effective remedy in domestic law by which to assert their complaints concerning the alleged violation of Articles 8 and 14 of the Convention before the domestic courts.

The original communication can be found here (in French only): http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-113205

The relinquishment to the Grand chamber in September 2012 can be found here:



Wednesday, 27 February 2013

Sir Nicolas Bratza

The British Institute of Human Rights this week announced the appointment of Sir Nicolas Bratza as its new President.

Bratza is both a former serving judge in the European Court of Human Rights (for the United Kingdom) and its past president. Last year, when giving his Presidential address at the Court's opening of its judicial year, he highlighted '[t]he strong protection given by the Court to private sexual relations, in particular private homosexual relations' as one of the Court's 'achievements [that] stand out'.

Readers with longer memories might remember one of Bratza's earlier roles in the Court in respect of human rights and homosexuality. Bratza acted, with Brian Kerr, as counsel for the UK government in Dudgeon v the United Kingdom, in which he defended the blanket criminalization of all male homosexual acts in Northern Ireland. It was only as a result of the success of Dudgeon v the United Kingdom in 1981 that the UK Government were forced to partially decriminalize male homosexual acts in private between adults.

Jeffrey Dudgeon, reflecting on his landmark case in the Court on the 30th anniversary of the judgment in 2011, noted:

'Nicolas Bratza, who for the London government resisted my case is now, as Sir Nicolas Bratza, the President of the European Court of Human Rights, while Brian Kerr who acted for the Northern Ireland Government became our Lord Cheif Justice as Lord Kerr. Backing bigotry did them no damage'. 



 

Tuesday, 26 February 2013

Updated Factsheet on Sexual Orientation Discrimination

The European Court of Human Rights has issued an updated factsheet on sexual orientation discrimination in light of its recent judgment in X. and Others v Austria. The factsheet can be found here:


The last update of the 'Homosexuality - Criminal Aspects' factsheet was October 2012 and it can be found here:





Monday, 25 February 2013

Judges De Gaetno and Vučinić and sexual orientation

In my post of 14th February I drew attention to two judges in the European Court of Human Rights - Judges De Gaetno and Vučinić - who recently made a distinction between 'gay rights' and 'fundamental human rights' in their partly dissenting opinion in Eweida and Others v the United Kingdom.

Readers may be interested to know how these judges have voted in respect of other sexual orientation related complaints that they have heard.

In fact, both judges, members of the Fourth Section of the Court, have only voted, as far as I can tell, on the merits of one other sexual orientation related complaint each.

Judge De Gaetno joined the Court as the judge for Malta in 2010. Other than his partly dissenting vote in Eweida and Others v the United Kingdom, he also voted against the majority decision in X. and Others v Austria that has recently been discussed on this blog. Judge De Gaetno has therefore twice voted in the negative in respect of human rights relating to sexual orientation.

Judge Vučinić joined the Court as the judge for Montenegro in 2008. Other than his partly dissenting vote in Eweida and Others v the United Kingdom, he filed an interesting concurring opinion in J.M. v the United Kingdom in which the Fourth Section unanimously upheld a complaint about discrimination on the grounds of sexual orientation in the payment of child maintenance. In the judgment the majority refused to consider the complaint under the 'family' life limb of Article 8, even though the judgment was given after the Court had recognised same-sex couples as constituting a family for the purposes of Article 8 in Schalk and Kopf v. Austria and P.B. and J.S. v. Austria. Judge Vučinić, joined by two colleagues, went to some lengths to argue that same-sex couples should be considered to constitute a family for the purposes of Article 8:

'J.M. offered a good opportunity to contribute to the emerging change in our case-law. Regrettably, the majority chose to avoid taking a clear position. In paragraph 50 the Court observes that the case is related to situations that took place in 2001-2002 and 2006. The Court confirms that “the consensus among European States in favour of assimilating same-sex relationships to heterosexual relationship has undoubtedly strengthened since it examined the issue in 2001 in the Mata Estevez decision”. However, the Court did not find it necessary to “decide whether the facts of the case, which are virtually contemporaneous with those of Mata Estevez case itself, also fall within the ambit of Article 8 in its family life aspect”. Judicial self-restraint is often a virtue, but not in cases in which courts should admit their own mistakes. It cannot be excluded that the Court was wrong already in Mata Estevez. In any case, we should not have refrained from unequivocal confirmation that today, in 2010, the notion of family life can no longer be restricted to heterosexual couples alone.'

It will be interesting to follow the decisions of these two judges in the future.




 
 

Friday, 22 February 2013

Breaking the Adoption Taboo? X. and Others v Austria

I am delighted to welcome Dr. Loveday Hodson as the author of this blog's first guest post. Loveday is an expert in family law and human rights. She has written the first book-length study of the relationship between Non Governmental Organizations and the development of human rights: NGOs and the Struggle for Human Rights in Europe. Many thanks to Loveday for this excellent piece. 




X. and Others v Austria
Loveday Hodson

The Grand Chamber of the European Court of Human Rights has this week issued another important judgment on sexual orientation discrimination in the area of family life, specifically addressing the adoption of a child by a 'second parent' in a same-sex relationship.

The applicants in X and Others v Austria were a child – unnamed in the judgment, so let's name him 'Sam' - and his two lesbian mums. Their straightforward argument was that Austrian law discriminated against their family because while it provided for 'second parent' adoption in the case of unmarried and married opposite-sex couples, it made no such provision for same-sex couples. It perhaps goes without saying that marriage is not extended to same-sex couples in Austria; registered partners, while able to adopt as individuals, are specifically excluded from joint and second-parent adoption. In short, one of Sam's mothers had no possibility of establishing a legally-recognised relationship with him, at least not without severing his ties with his biological mother. For the applicants, this exclusion was a non-sense that belied the reality of their day-to-day family life. Sam - aged about twelve when this application was submitted to the Court - had been cared for by both his mums since he was about five years old. Perhaps understandably, the applicants’ argued was that it was not in Sam’s best interests to have his relationship of care left unrecognised.

Although the applicants presented a compelling case, their arguments took the Court into unchartered territory. While it has long maintained a strong stance towards discrimination on the grounds of sexual orientation, the Court has also referred a number of times to the protection of the ‘traditional family’ as a ‘weighty and legitimate reason which might justify a difference in treatment’. Consequently, the Court’s approach to LGBT families has been somewhat inconsistent and fretful. In E.B. v France, for example, the complaint by a woman in a stable same-sex relationship about a refusal for authorization to adopt a child as a single person (authorization that was in theory open to any unmarried person) was upheld on the basis that it was discriminatory; however, in Gas and Dubois v France the Court held that refusal of authorization for a ‘second-parent’ in a same-sex relationship to adopt her partner’s biological child was not a violation of the Convention as second-parent adoption was not open to any unmarried person under French law. Austrian law was also arguably not incompatible with the loosely-worded European Convention on the Adoption of Children (revised 2008), which merely 'permits' States to extend adoption laws to same-sex couples in registered partnerships and unmarried couples in a stable relationship. At the time the case was before the Grand Chamber, only eleven Council of Europe states had extended second-parent adoption to same-sex couples, with most States reserving it for married couples; conversely, only five Council of Europe States allow unmarried second-parents to adopt but did not extend that provision to unmarried same-sex couples.

The Judgment


1. The Grand Chamber held [by ten votes to seven] that the difference of treatment between unmarried opposite-sex and same-sex couples in respect of second-parent adoption amounted to a violation of the applicants’ right to a family life (Article 8) in conjunction with Article 14. The Court reiterated that the margin of appreciation afforded to States when it comes to issues of discrimination on grounds of sexual orientation is narrow. The Austrian Government had failed to show that a blanket prohibition was necessary for the protection of the traditional family or for the protection of the interests of the child. Indeed, the blanket prohibition meant that the domestic courts did not have the opportunity to consider whether or not such a step would have been in Sam’s best interests. The Court went to great lengths, however, to stress that it was not making a decision on whether adoption would be appropriate in this case.

2. The Court further held unanimously that there was no violation of the Convention where the applications’ situation was compared with a married couple and child. Marriage, the Court held, “confers a special status on those who enter it”. Referring to Schalk and Kopf v Austria, the Court reiterated that the Convention does not impose an obligation on States to extend marriage to same-sex couples. Neither does any alternative form of legal recognition open to same-sex couples have to mirror the rights associated with marriage.

Commentary

One aspect of this judgment that still has the power to pleasantly surprise is the readiness with which the Austrian Government and Court accepted that the applicants had established a family life for the purpose of Article 8 of the Convention; it is worth recalling this right has been extended to same-sex couples and their children only since June 2010 (Schalk and Kopf). The Court has recognised for the first time – at least implicitly – the potential importance to a child of having his relationship with two same-sex parents legally recognised. The onus was placed firmly on the Austrian Government to demonstrate that a blanket prohibition was necessary in order to protect Sam’s best interests, which they had failed to do. Any differences between the regulation of unmarried same-sex and opposite-sex parents will clearly now need to be robustly justified by the State concerned. This is all the more surprising given that it was only in 2010 that the Court observed that it did “not see any indication that [Austria] exceeded its margin of appreciation in its choice of rights and obligations conferred by registered partnership” (Schalk and Kopf, para. 109).

The obvious limitation of this judgment is that it confirms the Court’s long-standing love affair with the idea that marriage is the gold standard for relationships, and yet it does nothing to move us closer to a position where States are required to extend marriage to same-sex couples. Indeed, the Court bent over backwards – practically doing cartwheels for good measure – to emphasize that marriage-based distinctions were a different matter altogether. The exclusion and discrimination – not to mention conceptual incoherence – that results from its position is clear. Twenty-four Council of Europe States reserve second-parent adoption to married couples. This judgment does not trouble those States in any way, and consequently the majority of children raised by same-sex couples remain outside of an equal framework of legal recognition. The best interests of the child principle – the foundation of the Court’s argument in relation to the children of unmarried couples in this case - seems to be easily overlooked when marriage enters the picture and same-sex couples are left outside of the frame.

Austrian law created a fiction that children could only have two opposite-sex parents and a biological parent could simply be ‘replaced’ through the adoption process. The X. and Others v Austria judgment represents a genuine attempt to better reflect the diversity of European families, in which the rigid simplicity of a strictly-biological understanding of parenthood is belied. Whereas the potential for two opposite-sex people to create a child is clearly a biological truism, it is increasingly less relevant to the social aspect of parenting and the day-to-day reality of many children’s lives. Yet the Court still finds itself tongue-tied when discussing children raised in LGBT families. Whereas Sam's biological mother is named as such, the Court leaves his other mother untitled in respect of her relationship to him: she is referred to, simply, as ‘his mother’s partner’. While this may appear to be a mere matter of semantics, it actually suggests that this is an area still riddled with contradictions and confusion. Those of us with an interest in this area continue to watch with a mixture of pride and concern as the Court continues to try to find its feet on its journey towards meeting the needs of LGBT families and, in particular, securing the rights of children raised in so-called 'alternative' families.

Thursday, 21 February 2013

X. and Others v Austria - Analysis

The ECHR Blog have today published my analysis of X. and Others v Austria. It can be found here:


I heartily recommend regular reading of the ECHR Blog, a wonderful resource maintained over the last five years by Dr. Antoine Buyse of Utrecht University. 

Tuesday, 19 February 2013

X. and Others v Austria

The Grand Chamber of the European Court of Human Rights has issued an important judgment in respect of a complaint about discrimination on the grounds of sexual orientation in step-parent adoption. In X. and Others v Austria the applicants, a female same-sex couple and the biological child of one of the partners, complained that the exclusion of a same-sex partner from adopting the biological child of their partner (a legal provision available to opposite sex couples, both married and unmarried) constituted discrimination contrary to Articles 8 and 14 of the European Convention on Human Rights.

The Court held:

by a majority (10 to 7), that there had been a violation of Article 14 taken in conjunction with Article 8 of the Convention on account of the difference in treatment of the applicants in comparison with unmarried different-sex couples in which one partner wished to adopt the other partner’s child;

unanimously, that there had been no violation of Article 14 taken in conjunction with Article 8 when the applicants’ situation was compared with that of a married couple in which one spouse wished to adopt the other spouse’s child.


I will be exploring the implications of this judgment on the ECHR Blog in the next few days.

Dr. Loveday Hodson, an expert in the ECHR and family law, will provide a critical analysis here soon.

The Court's press release can be found here: http://hudoc.echr.coe.int/sites/fra-press/pages/search.aspx?i=003-4264492-5083115

The full judgment can be read here: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-116735

Panel Discussion on China Radio International

Professor Robert Wintemute of King's College London, the China-based French Journalist Julian Gaudfroy, and me, participated in a one-hour panel discussion about sexual orientation and human rights on China Radio International today. China Radio International is the state owned world service of China. 

The broadcast can be heard in MP3 here:

Monday, 18 February 2013

Questions to the Parties in a complaint about Hate Crime in Romania

On 30th January 2013, the European Court of Human Rights issued Questions to the Parties in M.C. and A.C. v Romania (Application no. 12060/12). The case concerns complaints made by two applicants, Ms M.C. and Mr A.C. who are both Romanian nationals, about the failure of police to investigate violent hate crime committed against them on the grounds of sexual orientation.

A key aspect of the complaint is that the failure to investigate acts of criminal violence motivated by hatred of homosexuals, as well as the lack of adequate legislative and other measures to combat hate crimes directed against sexual minorities, violates the rights protected by Article 3 and Article 8 of the European Convention on Human Rights.

Details of the case are as follows:

 
The facts of the case
 
On 3 June 2006 the applicants participated in an annual gay march in Bucharest. It was organised by ACCEPT, a non-governmental organisation, whose object is to provide information and to assist the LGBT community. The march benefitted from police protection. Several individuals who had actively expressed their disapproval over the gay march were stopped by the police, their pictures were taken and their identity papers checked and recorded. At around 7 pm, at the end of the march, the applicants and four other participants left the area using the routes and means of transport recommended by the authorities in the guidelines prepared by the organisers for the participants in the march. As recommended in the same leaflet, they wore no distinctive clothing or signs that would identify them as participants in the march. In the metro they were attacked by a group of six young men and a woman wearing hooded sweatshirts. They came directly to the victims and started punching them and kicking their heads and faces. They were also swinging from the metal bars above their heads, kicking their victims. During the attack they kept on shouting: “You poofs go to the Netherlands!” (Poponarilor, duceţi-vă în Olanda!) The victims were pushed in the corner of the wagon. One of them tried to protect the others with his body, but the second applicant remained exposed and received several blows. The attack lasted for about two minutes. On their way out the attackers punched the first applicant again in the face. The other passengers withdrew on the opposite side of the wagon during the events. Among them was Z.E. who had also participated in the march as a photographer. The victims asked him to take pictures of the incident, which he did. As a consequence, the attackers slapped him as well.
 
In the same evening, together with a representative of ACCEPT, the victims went to Mina Minovici National Forensic Institute and to Bagdasar Emergency Hospital for medical consultations.
 
Mr A.C. was diagnosed with multiple contusions (related to the incidents), minor cranio-cerebral trauma, contusion on the left shoulder, on the left side of his face and bruises. No bone damage was found.
 
On the night of 3 to 4 June 2006 the victims, including the applicants, and a representative of ACCEPT went to the Bucharest Police Station no. 25. They filed a criminal complaint against the attackers and pointed out that the assault was based on the victims’ sexual orientation. They reiterated not having worn any visible signs that could have given away the fact that they were returning from the gay march. They argued that the attackers had identified them at the march (as they had not worn masks there either) and followed them afterwards, with the intent to harm them. They informed the police about the offensive remark made during the attack. According to the applicants, the police agents were surprised to see that the applicants and the other victims, although being gay, were well-off individuals with regular jobs and positions of responsibility. They tried to dissuade them from pursuing their complaint, warning them that they would have to confront their aggressors in trial.
 
On 5 June 2006 the applicants’ representative submitted to the police several pictures from the attack, taken by Z.E. In some of the pictures the attackers’ faces were visible, as their hoods were down. The photographer gave statements and could identify one of the perpetrators. Ms M.C. was also shown the pictures taken by police during the march. She was able to identify two of the individuals by their photos. The police had at their disposal the suspects’ names and addresses. Due to the reorganisation of the Police, the file was moved from one police station to another, and on 4 April 2007 it was registered at the Metro Police Station. As it appeared that nothing was happening in the case, the applicants sought information on the progress of the investigation (letters sent by ACCEPT on 25 September 2006, 28 March 2007 and 20 July 2011). On 19 March 2007 they also complained to the Ministry of Internal Affairs about the lack of an effective investigation in the case, but to no avail.
 
On 27 April 2007 they were informed that following the reorganisation of the Police their file was finally recorded by the Metro Police Station. The letter also informed the applicants that the investigation was on-going and steps were being taken to identify the culprits. On 9 August 2011 the Metro Police informed them that it was proposed to terminate the investigation as the alleged crimes had become statute-barred (s-a împlinit prescripţia specială). On 4 October 2011 the Prosecutor’s Office attached to the Bucharest District Court of the Fourth Precinct upheld the police proposal and decided to terminate the investigation. The decision was sent to Ms M.C's home on 27 February 2012. On several occasions the applicants asked access to the prosecution file, but their requests were repeatedly met with a refusal. On 19 March 2012 they lodged a complaint before the Prosecutor‑in‑Chief against the decision of 4 October 2011. They argued, among others, that the prosecutor should have investigated the more serious crime of organising a criminal group (asocierea pentru savârşirea de infracţiuni), which had not yet been time-barred. They also complained that the investigators failed to pursue their allegations that the attack had been motivated by the applicants’ sexual orientation. The complaint is currently pending before the Prosecutor’s Office.
 
The complaint to the ECtHR
  1. The applicants complain under Articles 3 and 8 of the Convention about the failure to investigate adequately their criminal complaints concerning acts of violence motivated by hatred against homosexuals, and more generally about the lack of adequate legislative and other measures to combat hate-crimes directed against sexual minorities. They point out that the investigation took too long and failed to identify the culprits despite the concrete evidence brought by them and the witness Z.E. They also aver that the authorities allowed deliberately the statute of limitation to be met. They reiterate further that the police agents were surprised to realise that gay persons could be well-off, and that they tried to persuade the applicants to withdraw their complaint. They argue that the authorities did nothing to address the general aversion against homosexuals in the society. They note that it was only on 11 August 2006 that the Criminal Code was amended to include the notion of aggravating circumstance of committing a crime on grounds of discrimination, including that based on one’s sexual orientation.
  2. Invoking Article 6 § 1 of the Convention, the applicants complain that they were hindered in their attempts to obtain civil damages by the ineffectiveness of the investigation and by the fact that the authorities allowed the offences to become statute-barred. They also reiterate that they are still unable to obtain copies of the prosecution file.
  3. The applicants complain that as the incidents occurred in relation to their participation in a peaceful assembly, the State breached its positive obligations under Article 11 of the Convention by failing to conduct effective investigations.
  4. Invoking Article 13 of the Convention together with Articles 3, 6, 8, 11 and 14 of the Convention, the applicants complain that they had no effective remedy at their disposal to complain either about the fact that the crimes against them had been motivated by their sexual orientation, or about the fact that the criminal investigation lasted too long and was inefficient, hindering thus their access to civil redress.
  5. Lastly, the applicants complain that when conducting the investigation, the authorities did not take into account the fact that the offences against them were motivated by their sexual orientation. They therefore failed to meet the procedural obligations enshrined in Article 14 of the Convention read together with Articles 3, 8 and 13, as well as those enshrined in Article 1 of Protocol No. 12 to the Convention.
Questions to the Parties
  1. Were the applicants’ complaints lodged with the Court with the expedition required by the six-month rule laid down in Article 35 § 1 of the Convention (see Manukyan v. Georgia (dec.), no. 53073/07, 9 October 2012)?
  2. Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?
  3. Having regard to the procedural protection from inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?
  4. Has there been a violation of the applicants’ right to respect for their private life, contrary to Article 8 of the Convention?
  5. In particular, regard having had to the positive obligations enshrined in Articles 3 and 8 of the Convention:
    (a) was the length of the criminal proceedings initiated by the applicants in breach of the requirements of expedition set by the Court in its case-law, concerning in particular the fact that the statutes of limitations were met in the case?
    (b) did the authorities remain neutral in their language and attitudes towards the applicants during the investigation?
    (c) did the authorities take fully into account the sensitive nature of the case before them?
    (d) did the applicants have access to obtain copies of the prosecution file?
  6. Has there been a violation of the applicants’ right to freedom of peaceful assembly, contrary to Article 11 of the Convention, in particular concerning the manner in which the authorities fulfilled their positive obligations to investigate the incidents?
  7. Did the applicants have at their disposal an effective domestic remedy for their Convention complaints, as required by Article 13 of the Convention?
  8. Have the applicants suffered discrimination in the enjoyment of their Convention rights on the ground of their sexual orientation, contrary to Article 14 of the Convention read in conjunction with Articles 3, 8, 11 and 13 of the Convention, and contrary to Article 1 of Protocol No. 12 to the Convention?
 


Friday, 15 February 2013

Recently Communicated Case about Freedom of Assembly in the Russian Federation

On the 22nd January 2013 the European Court of Human Rights communicated a new complaint about prohibitions on 'gay rights' marches in the Russian Federation during 2010 and 2011.

In 'Application 19700/11' the four applicants are Ms Yefremenkova, Mr Milkov, Mr Gavrikov and Mr Sheremetyev. 

Here is a summary of the complaint:
  1. The applicants complain of a violation of their rights guaranteed by Article 11 of the Convention. They submit, in particular, that in 2010 the refusals to agree to their marches, meetings and pickets were unlawful because the authorities did not propose alternative venues as they were required to do by domestic law. They argue that the judicial decisions on that issue were contradictory: some of them held that the authorities were not obliged to propose an alternative venue, while others found that they were required to do so by the Public Assemblies Act, as interpreted by the Constitutional Court. The applicants further argue that the restrictions imposed on their right to freedom of assembly were not “necessary in a democratic society”. The legitimate aim of ensuring road safety could have been achieved through means other than refusing to approve the assemblies, such as the deployment of police to control traffic. Nor could the authorities’ reference to various temporary inconveniences that the assemblies might cause to the residents of St Petersburg justify the refusal to allow the assemblies. Any public assembly is bound to cause certain minor disruptions to the ordinary life of the city and it is routine practice for the city authorities to take measures, such as blocking traffic in several streets, to allow a festive event to take place. However the authorities did not consider taking any such measures in the applicants’ case. The alternative venues proposed by the authorities in 2011 were entirely unsuitable for the public assemblies concerned because they were located in sparsely populated districts on the outskirts of the city. The applicants argue that those locations were proposed deliberately to banish gay activists from the public eye. Lastly, the fact that some of the refusals were later declared unlawful by the courts did not deprive them of their victim status because the judicial decisions were taken long after the scheduled dates of the events, making it impossible for them to organise a lawful assembly on the date that had a symbolic importance for them.
  2. The applicants complain under Article 13 of the Convention, taken in conjunction with Article 11, that they did not have at their disposal any procedure which would have allowed them to obtain a final decision prior to the date of the planned public assemblies.
  3. The applicants complain under Article 14 of the Convention, taken in conjunction with Article 11, that they were subjected to discrimination on account of sexual orientation. They argue that the refusals to approve their assemblies were motivated by the authorities’ discriminatory attitude towards homosexuals. The same authorities allowed a meeting in support of “traditional family values” organised by the Young Guard pro-government youth movement in protest against the Gay Pride march. That counter meeting took place on the same day and at the location which, when proposed by the applicants for the Gay Pride march, had been rejected by the authorities as unsuitable.

And the Court's previous decision in the similar facts case Alekseyev v Russia can be found here: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-101257



Thursday, 14 February 2013

'Gay rights' and 'fundamental human rights'


Two judges in the European Court of Human Rights - Judges Vučinić (Montenegro) and De Gaetno (Malta) - have recently drawn a distinction between 'gay rights' and 'fundamental human rights'. In Eweida and Others v the United Kingdom - which I wrote about on the ECHR Blog - Vučinić and De Gaetno dissented from the majority opinion of the Court in respect of the complaint brought by one of the applicants, Ms. Ladele, about disciplinary proceedings taken against her by her employer when she refused to administer services to same-sex couples in her role as a registrar. The majority of the Fourth Section of the Court rejected Ms. Ladele's complaint, brought under Article 14 taken in conjunction with Article 9, that she had been discriminated against on the grounds of religion because her employer had failed to accommodate her religious objection to homosexuality.

In their partly dissenting opinion, Vučinić and De Gaetno argued that although Ms. Ladele had complained of religious discrimination under Article 9, the issue at stake was more one of freedom of conscience. They compared the applicant’s refusal to be involved in the administration of civil partnership ceremonies for same-sex couples with forms of conscientious objection that have ‘in the past all too often been paid for in acts of heroism, whether at the hands of the Spanish Inquisition or of a Nazi firing squad’. Vučinić and De Gaetno argued that the failure of Ms. Ladele’s employers to protect her conscientious objection, which was a manifestation of her ‘deep religious conviction and beliefs’, violated her Article 9 rights.

In describing the situation that led to this violation of Ms. Ladele’s right to freedom of conscience, Vučinić and De Gaetno make an astonishing claim. They argue that the violation of the applicant’s Article 9 rights was the result of a ‘blinkered political correctness’ which favoured ‘gay rights’ over ‘fundamental human rights’.

On what basis do Vučinić and De Gaetno make this distinction between 'gay rights' and 'fundamental human rights'? The key issue in Ms. Ladele’s complaint was that a heterosexual woman (who was also religious) objected to homosexual partnerships and, as a result of this, felt unable to carry out her duty of providing lawfully proscribed services. Vučinić and De Gaetno distinguish Ms. Ladele’s conscientious objection to homosexuality to be a ‘human rights’ that is more ‘fundamental’ than the right of same-sex couples to have goods and services provided in a non-discriminatory way (services, such as civil partnership ceremonies, that same-sex couples may be accessing in order to exercise their own freedom of conscience). In other words, Vučinić and De Gaetno regard the majoritarian right of heterosexuals to object to homosexuality to have precedence over the ‘politically correct’ rights of gay men and lesbians. 
Whilst hostility to rights associated with sexual orientation has a long history in the Court, it is rare to see such an explicit ‘downgrading’ of the rights of sexual minorities in this way.

Why do Vučinić and De Gaetno take this line of reasoning? They argue that ‘Ms Ladele did not fail in her duty of discretion: she did not publicly express her beliefs to service users. Her beliefs had no impact on the content of her job, but only on its extent. She never attempted to impose her beliefs on others, nor was she in any way engaged, openly or surreptitiously, in subverting the rights of others.’ In other words, they argue that because same-sex couples did not know Ms. Ladele objected to their partnerships and refused to carry out her full duties, it did them no harm. However, one wonders whether these judges would have reached the same conclusion if Ms. Ladele had claimed that, due to deep religious conviction, she was unable to be involved in the administration of marriage ceremonies for ‘mixed race’ couples (such religious objections, although they now appear bizarre or shameful, have a long history). Would Vučinić and De Gaetno have argued that such an objection should be protected as a ‘fundamental human right’ over and above ‘politically correct’ ideas about racial and ethnic rights? Would they have argued that Ms. Ladele’s employers and her colleagues should have accommodated racist views?

The dissenting opinions of individual judges are often a better window into the moral universe of the European Court of Human Rights than 'official' majority judgments. In the case of this dissenting opinion, it raises concerns about how the Court’s judges regard ‘gay rights’ in respect of the Convention.


Wednesday, 13 February 2013

X. and Others v. Austria

The European Court of Human Rights today issued a press release concerning the forthcoming judgment from the Grand Chamber in X. and Others v. Austria. The case concerns a complaint, under Article 14 taken in conjunction with Article 8 of the European Convention on Human Rights, about the refusal to allow second-parent adoption in a same-sex relationship.

The Grand Chamber judgment will be given at a public hearing on 19th February 2013 at 11am (local Strasbourg time).

I will be writing a comment for the ECHR Blog.

Dr. Loveday Hodson of the University of Leicester, a specialist in both ECHR and family law, will write a guest comment for this blog.




Welcome to the ECHR Sexual Orientation Blog

Inspired by attending the recent Interdisciplinary Perspectives on LGBT Human Rights Advocacy jointly hosted by the Kenan Institute for Ethics and the Law School at Duke University, and by the excellent work of other bloggers (such as the ECHR Blog and the UK Human Rights Blog), I have decided to start a modest enterprise devoted to sexual orientation and the European Convention on Human Rights.

I hope to regularly post here information about sexual orientation issues relating to the ECHR, such as new judgments by the European Court of Human Rights and developments in the Council of Europe.

I will also attempt to persuade colleauges to write guest posts, commenting on new judgments by the Court and sharing their insights.

I will also try to build up the blog over the coming months so that it contains links to scholars working on ECHR sexual orientation issues around the world. In that sense, I hope that it will become something of a community resource.

If you have any suggestions for the blog, please get in touch. I hope this blog will develope organically and that, like the Convention itself, will be a 'living instrument' that provides a reflection on our 'present-day conditions'.