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:


UK Parliament note on 'persecution of sexual minorities in Russia'

The House of Commons of the UK Parliament have published the standard note: 'Persecution of sexual minorities in Russia'. 

The note, by Ben Smith, contains a section detailing the Council of Europe response to the recent enactment of federal legislation regulating the 'propoganda of non-traditional sexual relationships'.

The note can be found here:

http://www.parliament.uk/briefing-papers/SN06712

Tuesday, 29 October 2013

New Article 19 report on hate speech

Article 19 have launched their new report Responding to Hate Speech against LGBTI people. 

The report contains a range of information relating to the ECHR, as well as human rights more generally. 

Details of the launch event at the European Parliament can be found here:

http://www.lgbt-ep.eu/intergroup-documents/summary-responding-to-homophobic-and-transphobic-hate-speech/

And the full report is available here:

http://www.article19.org/data/files/medialibrary/37279/LGBT-Incitement-Paper-October-2013.pdf

 


Monday, 28 October 2013

ECHR updated master list

The Court has made available a new updated master list of all judgments delivered by a Grand Chamber or Chamber, all advisory opinions issued by the Court under Article 47 of the Convention, and all decisions that have been published or selected for publication in the Court’s official series.

 
 

Friday, 25 October 2013

Hämäläinen v Finland - comparison of facts with USA law

Four NGOs in the USA - Transgender Law Center, Gay & Lesbian Advocates & Defenders, the National Center for Lesbian Rights, and the Transgender Legal Defense & Education Fund - submitted a third party intervention in support of the referral of Hämäläinen v Finland to the Grand Chamber. 

The intervention contains a comprehensive analysis of USA federal and state law regarding marriage between two parties where one person reassigns their sex. 

The intervenors conclude:

"to our knowledge, no federal, state, or local law in the United States mandates the dissolution of a valid marriage merely because one spouse pursues or obtains gender reassignment during marriage. In fact, to the contrary, United States courts continue to recognize a marriage that is valid when celebrated as continuing to be valid after one spouse undergoes a legal gender transition".

Full text available here:

Friday, 18 October 2013

Hämäläinen v Finland - Grand Chamber hearing

The webcast of the Grand Chamber hearing in Hämäläinen v Finland is now available on the Court's website. 

The applicant was well represented by Constantin Cojocariu, who made a strong case to the Grand Chamber.

My impression of listening to the submission of the applicant is as follows:

The applicant makes a strong and coherent case under Article 8 to demonstrate the violation of her private and family life created by the requirement that she divorce her wife in order to have her gender identity recognized. She contests the claim, advanced by the Finnish Government, that there are ‘minor differences' between marriage and registered partnership. Rather, she argues that marriage has a unique social and religious status. She repeatedly stresses that under no circumstances will she undertake to transform her marriage into a registered partnership and forego the social and religious status of her current marriage. 

The applicant compares the current Finnish law requiring her to divorce with Nazi policies promoting Aryan marriage and discouraging mixed-race marriage.

The applicant relies on consensus analysis, noting that only 6 Council of Europe states require compulsory divorce by transgender individuals prior to full gender recognition. 

The applicant makes an interesting submission under Article 12, arguing that in the original Chamber judgment it was interpreted in too restrictive a way and concentrated solely on the formation of marriage (in contrast to the Court's wider jurisprudence which focuses on issues outside of this). The applicant also contests that the language of ‘men and women’ used in Article 12 must in all circumstances be limited to person of opposite gender (and cites the Court's judgement in Schalk and Kopf v Austria to support this). 

The applicant's Article 14 submission rests on how she suffers daily discrimination on the grounds of gender not suffered by non-transgender people. These daily difficulties include international travel problems (a key aspect of her work) created by the discontinuity between her passport, which shows her gender as male, and her visible appearance. She also argues that she suffers non-trivial and daily embarrassment created by the inspection of other documents, such as public travel documents, that show her gender as male.

Perhaps one of the most crucial aspects of the applicant's overall submission, and one which I find disappointing, is the reiteration of the claim that ‘we do not seek the legalization of same-sex marriage in this case’. The applicant, as in her original submission, distinguishes her transgender marriage from issues relating to same-sex marriage because, she contends, a right to stay married after gender reassignment is not equivalent to a right to contract a new same-sex marriage. She also states that recognizing the ‘tiny amount of transgender marriage’ will not create an expectation to recognise same-sex marriage generally.

In this sense, as I have previously argued, the applicant is attempting to make a highly unconvincing distinction between persons in her situation and non-transgender same-sex (homosexual) couples. It can be seen as a politically motivated distinction, designed to distance the case from broader debates about whether same-sex couples have a right to marriage under Article 12.

The problem with making this distinction - as expedient as it may appear - is that the central issue in this case is same-sex marriage. The Finnish state does not insist on the applicant divorcing prior to recognizing her gender because it is against transexual marriage, but because it does not recognize marriage between two people of the same-sex. Any distinction between transgender and homosexual persons is irrelevant. Persons in the applicant's situation are required to divorce because the state will not recognize any same-sex marriage. The requirement for the applicant to divorce is created only because the state does not recognize same-sex marriage and, ultimately, what the applicant is seeking is that recognition. 

I also found the distinction between transgender and homosexual marriage highly unconvincing because the applicant relied on statistics regarding support for same-sex marriage in Finland and the recent close vote in the Finnish legislature in respect of legalizing same-sex marriage - neither of which related simply to issues of transsexuality but to same-sex (homosexual) marriage more generally. Also, in respect of her Article 12 argument, the applicant argued that forcing her to divorce deprives her of her right to marry since being able to marry an opposite sex person would be of no consolation.

My overall conclusion on this aspect of the applicant's submission is that, like in all other situations when same-sex transgender couples attempt to distance themselves from homosexuality, it may tell us something interesting about the social construction of gender and sexuality but it is highly problematic from a legal point of view.

The Court will be well aware that if it finds in the applicant's favour, and recognizes a violation of any aspect of the Convention, it will open the way for a range of complaints from same-sex couples who wish to contract marriage in states that do not allow it. And those complaints will have the novel quality of advancing claims about discrimination between two groups that the Court will have recognized as distinct in respect of marriage: transgender same-sex couples and non-transgender same-sex couples. 











Thursday, 17 October 2013

"Article 8 of the ECHR: Public Interest Considerations" provision in UK immigration Bill

The UK Government have published the extensive Immigration Bill 2013-2014. One significant clause in the Bill is an amendment to the Nationality, Immigration and Asylum Act 2002 consisting of a new section, 'Part 5A - Article 8 of the ECHR: Public Interest Considerations', dealing with: 

This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts—
(a) breaches a person’s right to respect for private and family life under Article 8, and
(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.


Part 5A makes a number of provisions designed to shape the interpretation of Article 8 of the Convention by courts or tribunals who are reviewing immigration decisions. One important aspect is the statutory obligation it will place on courts and tribunals to observe the following principle when balancing the public interest with an individual's Article 8 rights:

(4) Little weight should be given to— 
(a) a private life, or
(b) a relationship formed with a qualifying partner, that is established by a person at a time when the person is in the United Kingdom unlawfully.  

The Explanatory Notes to the Bill state:

In July 2011 the Home Office published a consultation paper on Family Migration. On 11 June 2012 the government published its response to the consultation setting out that Immigration Rules would be made to reflect the government’s and Parliament’s view of how the balance should be struck between the right to respect for private and family life under Article 8 of the ECHR and the public interest, including safeguarding the economic well-being of the UK, enforcing immigration controls and protecting the public from foreign criminals. New Immigration Rules came into force on 9 July 2012. The Bill gives the force of primary legislation to the principles reflected in those rules by requiring a court or tribunal, when determining whether a decision is in breach of Article 8 ECHR, to have regard to the public interest considerations as set out in the Bill.

The Bill is due to receive its Second Reading on 22 October 2013. 



Wednesday, 16 October 2013

Hämäläinen v Finland - Grand Chamber hearing today


The European Court of Human Rights is today (Wednesday 16 October) holding its Grand Chamber hearing in the case of Hämäläinen v Finland.

The hearing will be broadcast from 2.30p.m. on the Court’s Internet site.

This is an important case, involving issues related to both transgender and same-sex marriage rights. 



Sunday, 13 October 2013

Committee of Ministers give further consideration to Russian law on 'non-traditional sexual relations'

At its last DH Meeting, the Committee of Ministers of the Council of Europe issued a further decision in respect of Alekseyev v Russia which focuses almost entirely on the new federal law relating to the propaganda of non-traditional sexual relations to minors. 
Although the Committee of Ministers use phrases such as 'strongly regretted', 'serious issues' and 'restrictive practices', it is difficult to read this as the robust condemnation that many would hope it would be. 
The supervision of the Alekseyev judgment has been going on for nearly three years. The situation in Russia has deteriorated since the Court gave its original judgment. No further judgment from the Court in respect of the regional or federal propaganda laws is on the horizon. Could the Committee of Ministers not issue something stronger than this?
The full text of the decision:
The Deputies


1. strongly regretted that the new federal law prohibiting the so called propaganda of non-traditional sexual relations amongst minors contains a number of provisions raising serious issues under the Convention and was adopted in circumstances that did not allow full consideration to be given to the Venice Commission Opinion;
2. recalled that the Committee has already expressed its concerns in respect of similar provisions of regional laws;
3. noted that the new law could undermine the effective exercise of the freedom of assembly notably on account of the ambiguous terms it contains giving rise to a risk of arbitrary application and of continuation, if not reinforcement, of restrictive practices of the local authorities;
4. took note however of the assurances given by the Russian authorities that the new law itself does not interfere with holding public events similar to those described in the Alekseyev judgment and invited the authorities to subject its implementation to strict monitoring in order to prevent any arbitrariness in its application;
5. invited in parallel the authorities to adopt specific measures raising awareness among the general public and, in particular, the relevant authorities of the fundamental rights and freedoms of LGBT persons, without discrimination, in order to avoid that the new law contributes to the existing tensions, and to motivate further the refusal of public events for reasons of security and public order;
6. recalling the utmost importance of providing to the Committee of Ministers an action plan, called upon the authorities to submit as soon as possible the comprehensive action plan required in this case;
7. decided to resume consideration of these issues at the latest at their 1193rd meeting (March 2014) (DH).
Available here:

https://wcd.coe.int/ViewDoc.jsp?Ref=CM/Del/OJ/DH(2013)1179/14&Language=lanEnglish&Ver=original&Site=CM&BackColorInternet=DBDCF2&BackColorIntranet=FDC864&BackColorLogged=FDC864








Tuesday, 8 October 2013

New article in Swedish

Especially interesting for Swedish readers, Cecilia Itzigehl of Lund University has made available the thesis "Rätten att bilda familj oavsett sexuell läggning – En analys av Europadomstolens praxis" (The right to form a family regardless of sexual orientation - an analysis of the European Court of Human Rights).

The thesis is a comprehensive analysis of the Court's approach to family life and sexual orientation. 


Here is the summary:


LGBT rights are, and have for the last thirty years been, a current political and legal issue in Europe. The purpose with this Thesis is to, based on the ECtHR’s practice, discuss which family rights LGBT-persons’ have today in Europe. Furthermore the paper will deal with what the current doctrine has to say about this development of rights in the ECtHR’s practice. With these issues as a cornerstone, this Thesis will explore the current legal position of the ECtHR and doctrine, and also link the empirical material to the theories about legal development contained within the current doctrine.


The Thesis describes the subject matter’s relevant articles within the ECHR namely articles 8, 12 and 14 and also the principles that the ECtHR applies when interpreting these provisions. Thereafter the empirical material is presented in the form of judgments and decisions from the ECtHR and the European Commission, and the current legal climate is clarified. Lastly the current research situation and theories about the legal development is described.


The conclusions are as follows when describing the ECtHR’s decisions concerning LGBT-rights: focus has been shifted from what is called “sex rights” to “love rights” i.e. focus has gone from LGBT-persons’ rights to express their sexuality and not to be discriminated against, towards their rights’ to legal recognition and equal treatment of their relationships with one another. Nonetheless, the answer to the question whether everyone is entitled to start a family under the ECHR will still have to be answered in the negative. It is however important to point that there are gradations depending on what right is examined and depending on who or whom is affected i.e. couples or singles, homosexuals or transsexuals.


The result of the case study clearly shows that recognition of LGBT-persons rights is systematic, and that in the ECtHR it is easier for LGBT-persons to claim private rights rather than public ones. The obstacles are mainly the legislations heteronormative construction and its subsequent application. The foremost reason that the sphere of LGBT-rights has been able to evolve relatively swiftly during these last thirty years, is the ECtHR’s use of the living instrument doctrine. Key factors for the continuing development of LGBT-persons’ family rights would be a more moral interpretation of the ECHR, an increased tolerance towards homosexuality, an increased awareness of human rights, the dissolving of values that tie marriage to gender and reproduction and finally an increased secularization in Europe.


This Thesis shows that there are still obstacles to overcome before everyone, regardless of sexual orientation, has the right to start a family. However, the ECtHR’s interpretations of the ECHR have in several cases led, and continues to lead, to the extension of LGBT-persons’ rights in many European countries. 


Cecilia's thesis can be found here:


http://lup.lub.lu.se/luur/download?func=downloadFile&recordOId=3348953&fileOId=3359694


Thursday, 3 October 2013

I.B. v Greece

In I.B. v Greece (judgment in French only) the European Court of Human Rights has unanimously held that the applicant's rights under Article 8 taken together with Article 14 of the Convention had been violated when he was dismissed from his job because of his HIV-positive status.

The press release from the Court states:

"The Court considered that the applicant had been a victim of discrimination on account of his being HIV-positive. The domestic courts had based their decision to reject his complaint about his dismissal on clearly inaccurate information, namely the contagious nature of his illness. They had provided insufficient explanation of how the employer’s interests outweighed those of the applicant, thus failing to strike the correct balance between the rights of both parties.The applicant had been a victim of discrimination on account of his health status, in breach of Article 8 taken together with Article 14."

Full details can be found here:

http://hudoc.echr.coe.int/sites/eng-press/pages/search.aspx?i=003-4520290-5453651