Wednesday, 29 April 2015

The Christian-inspired European Centre for Law and Justice seeks to prevent the ECtHR from recognising same-sex marriage

The (bizarrely named) European Centre for Law and Justice (ECLJ), a 'Christian-inspired organisation', has released its 12 page third party intervention into Orlandi and Others v Italy and Oliari and Others v ItalyBoth complaints concern the inability of same-sex partners to contract marriage in Italy or have their overseas marriages recognised under Italian law. 

The ECLJ provide copious reasons for why the European Court of Human Rights should not uphold the applicants' complaints. 

Here are a few choice picks (with some comment by me):

"The applicants’ situation does not fall within the scope of Article 12. The applicants are excluded from the scope of this Article as the Convention guarantee of the “right to marry and found a family” is reserved only to couples consisting of a man and a woman."
The question of whether same-sex couples are 'excluded from the scope' of Article 12 is debatable. As I argued in a recent article that I published in European Law Review, the Court has consistently held that Article 12 is applicable only to opposite-sex couples. However, in Schalk and Kopf v Austria, the Court did indicate that there may be circumstances when the right to marry enshrined in Article 12 might not be limited to opposite-sex couples (in light of this it concluded that 'it cannot be said that Article 12 is inapplicable' to same-sex couples). The ECLJ will no doubt be pleased to know that, since Schalk and Kopf, the Court has never strayed into this territory again and, more significantly, Article 12 was implicitly deemed inapplicable by the Grand Chamber in Hämäläinen v. Finlandcommented on this at the time. 
"The right to marry was not conceived as an autonomous and subjective right or as an individual freedom. The right to marry is almost incidental to that of founding a family: it is an instrument at its service. It appears thus in all the declarations of rights within which marriage and founding a family are one and the same right [...] This wording shows that marriage is 'an institution which forms a part of society' at the service of the family: marriage is an instrument which serves the end goal of the family. Thus, the conditions and impediments to marriage are not arbitrary but are the consequences of the ultimate aim of marriage. These conditions are, above all, natural: they concern marriageable age, that is the ability to procreate; the difference of sex of the spouses, which is also a condition of procreation; and consanguinity, which is a barrier to healthy procreation."
The ECLJ will not be pleased to know that most of their points here are redundant, not least because in Goodwin v the United Kingdom the Grand Chamber of the Court determined that founding a family is not a condition of the right to marry and that the inability of any couple to conceive or parent a child cannot be regarded as per se removing their enjoyment of the right to marry. 
"Until recently, it was not necessary to specify that the right to marriage exclusively benefits couples comprised of a man and a woman. It is nevertheless explicitly stated in the European Convention on Human Rights, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights of 1966. A large number of international treaties also concern the relations of men and women as spouses such as the Convention on the Nationality of married women of 1957. The United Nations Human Right Committee has held that the right to marry and to found a family guaranteed by Article 23 § 2 of the ICCPR must be understood as being deliberately and exclusively reserved for men and women, because it is “the only substantive provision in the Covenant which defines a right by using the term 'men and women', rather than 'every human being', 'everyone' and 'all persons'".
The words 'men and women' included in the right to marry in the European Convention on Human Rights are not designed to exclude same-sex couples. The historical evidence relating to the drafting process, which is publicly available to anyone, demonstrates without question that when the drafters of the Convention formulated the right to marriage in this way it had nothing to do with limiting the right to opposite-sex couples.


Obiter dictum 

Jesus said: "A new command I give you: Love one another. As I have loved you, so you must love one another" (John 13:34). Have the ECLJ read their Bibles lately? 

Sunday, 26 April 2015

Why the European Court of Human Rights is wrong to say that same-sex couples have no human right to marry

The European Law Review have published my new article, on Article 12 of the European Convention on Human Rights. The article challenges the claim by the European Court of Human Rights that Article 12 of the Convention does not guarantee men and women with the human right to marry someone of the same sex. 

The article is called '"The Choice of Wording must be Regarded as Deliberate": Same-sex Marriage and Article 12 of the European Convention on Human Rights' and is published in the May 2015 issue of ELR. 

This is the abstract:

"This article provides a critical analysis of the textual interpretation of art.12 of the European Convention on Human Rights (ECHR) promulgated by the European Court of Human Rights (ECtHR) in respect of  same-sex marriage. I argue that the ECtHR’s interpretation of art.12 is based on problematic historical  claims about the textual construction of the right to marry which, when subject to scrutiny in light of available evidence relating to the drafting process of the ECHR, undermine its conclusion that art.12  extends only to opposite-sex couples. I challenge the ECtHR’s interpretation of art.12 by arguing that its  understanding of the wording of the right to marry suffers from “historical presentism”. I conclude by suggesting that a textual interpretation of art.12 need not lead to the conclusion that same-sex couples are excluded from the right to marry."

If anyone would like a copy of this article and cannot get access to the journal, please email me to obtain a copy. 


Wednesday, 15 April 2015

"Rights On The Move – Rainbow Families in Europe" papers now available on the ECHR

Proceedings from the conference "Rights On The Move – Rainbow Families in Europe", which was held in Trento on 16-17 October 2014, are now available online. 

The proceedings contain five papers on the ECHR by Marion Guerrero, Frances Hamilton, Céline Husson-Rochcongar, Eszter Polgári, and Kees Waaldijk. 

It can be downloaded here:

http://eprints.biblio.unitn.it/4448/1/Casonato-Schuster-ROTM_Proceedings-2014.pdf

Friday, 10 April 2015

M.E. v Sweden - Guest Post by Silvia Falcetta

I am delighted to post a critical commentary by Silvia Falcetta on the Grand Chamber judgment in M.E. v Sweden

Silvia is undertaking doctoral work at the State University of Milan. Her PhD research is a sociological study of ECHR jurisprudence in respect of LGBT rights, which incorporates analysis of the decisions and judgments of the Court and the former Commission, as well as the role of NGOs and third party interventions in the litigation process. 

Many thanks to Silvia for this piece. 


M.E. v Sweden: the Grand Chamber judgment
by Silvia Falcetta

On the 8th April 2015 the Grand Chamber finally struck out the case of M.E. v Sweden (app. no 71398/12), missing a relevant opportunity to enlarge the protection provided to lgbt people under the ECHR.

The most striking aspect of this concise judgment concerns the absence of a clear statement on the treatment of individuals who seek asylum in the Council of Europe on the ground of their sexual orientation; this is not the first case about homosexual migrants the ECtHR had to deal with[1] and also the Ecj recently delivered a judgment concerning lgbt foreigners asking asylum because of threats experienced in their origin countries. The issue at stake in M.E. as well as in other mentioned cases surely impacts on the fragile balance between national immigration laws and fundamental rights but due to recent rising of migration rates similar cases are likely to increase, thereby forcing the ECtHR to face the question again.

To understand why through a more detailed reasoning the Grand Chamber could have clarified the ECtHRs approach to applications concerning lgbt migrants I will highlight some problematic aspects that arose from the Fifth Section judgment and that after the recent striking out remain opened.

The legal framework and the Fifth Section judgment

in 2012 at the end of a quite complex national legal procedure, analyzed here, the applicant, a Libyan citizen married to a same-sex Swedish permanent resident, was denied a residence permit and Swedish authorities requested that Mr. M.E. applied for family reunion from his origin Country.

Consequently, Mr M.E. recurred to the ECtHR alleging a violation of Articles 3 and 8 of the ECHR.

In June 2014 the Fifth Section dismissed the claims of the applicant and displayed a problematic, flawed and controversial conclusion.

-  Problematic for the majority underestimated actual risks related to sexual orientation arising from a forced repatriation in Libya and, furthermore, the Court did not attach relevance to the fact that, irregardless of the actual enforcement of criminal laws against homosexuals a hostile attitude towards anyone suspected of being homosexual permeated local culture. Even though the applicant had married N. and the latter could not travel to Libya, precisely because of risks connected both to his sexual orientation and gender identity, the majority considered Swedish authorities entitled to require that Mr. M.E. returned to Libya and they considered the separation of the spouses as temporary, excluding that the process of family reunion would be unduly length (§ 100).

-  Flawed since the ECtHR, despite the absence of a clear understanding of treatments to which homosexual were exposed in Libya and even though at least two cases of massive violence against gay men were reported (§ 45), stated that while having regard to the fact that homosexuality is a taboo subject and seen as an immoral activity against Islam in Libya, the Court does not have sufficient foundation to conclude that the Libyan authorities actively persecute homosexuals (§87). Moreover, the Court dismissed the fact that all Swedish embassies in Libya had closed down as a irrelevant issue, stating The Court reiterates that [] he would thus only have to travel to a Swedish embassy in a neighbouring country for the actual interview which could be done in a few days. In such a short time-frame, the Court finds no reason to believe that the applicants sexual orientation would be exposed so as to put him at risk of treatment contrary to Article 3 of the Convention in Algeria, Tunisia or Egypt (§89).

-   Controversial given that the majority reinforced the closet stereotype, affirming that even though Mr. M.E. should cover his sexuality while waiting for the approval of his family reunion, during an estimated period of four months, this must be considered a reasonably short period of time and, even if the applicant would have to be discreet about his private life during this time, it would not require him to conceal or supress an important part of his identity permanently or for any longer period of time(§ 88). Surely the tangled history of the applicant and the legitimate doubts concerning his submissions to the Migration Board casted many shadows on his past but, nevertheless, all these happenings do not diminish the fact that once in Sweden he found himself homosexual and married a man, nor his previous actions overcome the legal relevance of the civil marriage contracted in Sweden. The only dissenting voice, Judge Powder-Force, strongly argued against the majority reasoning, highlighting the many hidden biased standpoints: The majority in this case has concluded that even if the applicant has to be discreet about his private life for some time following his expulsion to Libya, this would not involve a permanent or protracted suppression or concealment of an important part of his identity and thus would not reach the threshold necessary to violate Article 3 of the Convention. I disagree with the majoritys approach and conclusion. The fact that the applicant could avoid the risk of persecution in Libya by exercising greater restraint and reserve than a heterosexual in expressing his sexual orientation is not a factor that ought to be taken into account (dissenting opinion of Judge Powder-Force).

The Court dismissed all claims but in accordance with Rule 39 of Rules of the Court indicated to Swedish Government that it was desirable in the interests of the proper conduct of the proceedings not to expel the applicant until such time as the present judgment becomes final or until further order. (§ 104).  

The question of the treatment of individuals who seek asylum on ground of sexual orientation therefore was placed to the complete discretion of national authorities.

After the referral to the Grand Chamber, however, many jurists, activists and citizens hoped that the panel of seventeen judges would have approached the question with a far more in-depth reasoning.

The Grand Chamber judgment

On the contrary, the reasoning of the Grand Chamber appears quite flat.

In November 2014, after the Chamber judgment, the Migration Boards Director General for Legal Affairs issued a Legal Comment concerning the situation in Libya, in which Swedish authorities acknowledged the extreme violent, unstable and dangerous situation later Gaddafis defeat (§ 24).

Moreover, in the light of the information in the Legal Comment concerning the situation in Libya, and noting that the Court had referred the applicants case to the Grand Chamber, the Migration Board decided to examine the applicants case again (§26) and finally granted him a permanent residence permit, without however reconsidering decisions pronounced by a higher-ranking authority or [examining] the correctness of the assessments made by such authorities  (§ 27).

Mr. M.E. decided to maintain the application since he alleged that the matter before the Court had not been resolved (§29); namely the applicant requested that the Grand Chamber reviewed whether the previous decisions by the Swedish authorities had been in breach of Article 3 since, at the time when they had taken their decisions, they knew or ought to have known that his removal to Libya would expose him to a real risk of inhuman or degrading treatment (§ 30).

Furthermore Mr. M.E. held that its case raised serious issues of fundamental importance relating to homosexuals rights and how to asses those rights in asylum cases all over Europe and required the ECtHR to continue the examination (§30).

Thus applicant both called for a general interpretation of the ECHR that led to a sort of pilot judgment and demanded personal satisfaction since he considered that he was still a victim since the Swedish authorities had at no point acknowledged a violation of his rights under the Convention (§30).

The Grand Chamber neither disputed the correctness of the risk evaluation made by national authorities and endorsed in the previous ECtHR judgment nor it mentioned the necessity to establish a general frame related to lgbt individuals seeking asylum on the ground of their sexual orientation.

Indeed, the Grand Chamber noted that the Swedish National Board in its last Report had taken the applicants sexual orientation into account (§37) and concluded: the Court does not need to enquire retrospectively into whether a real risk engaging the respondent States responsibility under Article 3 of the Convention existed when the Swedish immigration authorities refused his asylum requests or when the Chamber adopted its judgment (§36).

Finally, the Grand Chamber didnt even consider whether asking to lgbt migrants to conceal their sexuality in order not to incur in criminal sanctions in their origin country could be legitimate under Articles 3 and 8 of the ECHR.

In conclusion, the Grand Chamber judgment did not loosen the knot of how to balance national immigration laws and fundamental rights, endorsing an extreme cautious approach, light years away from the milestone reasoning offered by the Ecj that argued: when assessing an application for refugee status, the competent authorities cannot reasonably expect, in order to avoid the risk of persecution, the applicant for asylum to conceal his homosexuality in his country of origin or to exercise reserve in the expression of his sexuality.(joined cases C-199/12, C-200/12 and C-201/12, Minister voor Immigratie en Asiel v. X, Y and Z, § 79) .

It is striking that, at the moment, while the Ecj strongly calls to secure lgbt migrants the ECtHR, specifically aimed at ensuring, developing and enforcing fundamental rights, prefers a mere procedural review, unsatisfactory from any point of view.

The Grand Chamber, indeed, chose an approach deferent to national authorities, possibly for a twofold reason: national security and immigration laws traditionally lie at the core of domestic sovereignty and an activist judgment could have risen criticism from States member of the Coe; moreover, as Judge De Gaetano implied in the Chamber judgment, a quite consistent portion of public opinion suspects that if the ECtHR required member States to grant asylum to lgbt migrants from Countries in which homosexuality is formally or informally prosecuted, then a great portion of heterosexual people would enter marriages of convenience and declare him/herself as homosexual even if not true.

Furthermore recent political election show how European public opinion is scared of increasing immigration rates, a topic often used by politicians as a scapegoat to justify internal social and economic troubles and call for stricter borders. In such a context the application of a structural margin of appreciation has surely protected the Court from criticism of policy-making, at the great, I would say unbearable,expense of a brave and effective interpretation of the ECHR that secured migrants threatened because of their sexual orientation.




[1] See for instance M.K.N. v Sweden, no. 72413/10, judgment 27/6/2013; Sobhani v Sweden, no. 32999/96; F. v UK, no 17341/03, judgment 22/06/14; I.N.N. v the Netherlands, no. 2035/04, decision 09/12/04. Also the EComHR dealt with several application challenging the heteronormativity of domestic immigration laws, see X and Y v UK, no 9369/81, decision 03/05/1983; W.J. and D.P. v UK, no.12513/86, decision 13707/1987; C and L.M. v UK, no. 14753/89, decision 09/10/1989; Z.B. v UK, no. 16106/90, decision 10/02/1990

Thursday, 9 April 2015

Grand Chamber of ECtHR 'dodges' ruling on the merits of gay asylum complaint in M.E. v Sweden

The Grand Chamber of the European Court of Human Rights yesterday struck the complaint in M.E. v Sweden from its list. In doing so, the Court missed a key opportunity to make a significant statement on the treatment of individuals in Council of Europe states who seek asylum on the grounds of sexual orientation. Specifically, it failed to determine whether returning a gay man to a state that criminalizes homosexual sexual acts amounts to a violation of the European Convention on Human Rights.

Background to the Grand Chamber judgment

M.E. v Sweden has a complex history. The case concerns a Libyan national currently living in Sweden who complained to the Court about his threatened expulsion from Sweden to Libya where, he alleged, he would be at risk of persecution and ill-treatment because he is a homosexual. 

Mr. M.E. arrived in Sweden as an illegal migrant in 2010 and claimed asylum. In 2011, he married a man who has permanent residence in Sweden. Swedish authorities repeatedly rejected Mr. M.E.'s application for a residence permit. They concluded that he could be returned to Libya where he could apply for family reunion with his spouse. 

The Libyan Penal Code makes all same-sex acts illegal, with a maximum punishment of imprisonment for five years. 

Mr. M.E. argued that expelling him to Libya would violate his rights under Article 3 of the Convention because as a homosexual he would be at risk of persecution and ill-treatment. He further argued that returning him to Libya and separating him from his spouse would violate his right to respect for family life under Article 8 of the Convention. 

In June 2014, a chamber of the Fifth Section of the Court unanimously declared the applicant's Article 8 complaint inadmissible and held, by six votes to one, that the expulsion of the applicant to Libya would not give rise to a violation of Article 3 of the Convention. In November 2014, the Court announced that the complaint would be referred to the Grand Chamber for consideration at the applicant's request.

In the light of new information concerning the situation in Libya, and noting that the Court had referred the applicant’s case to the Grand Chamber, the Swedish Migration Board decided to examine the applicant’s case again and to determine whether there were impediments to returning him to Libya. On 17th December 2014, the Migration Board granted the applicant a permanent residence permit in Sweden.

The issues before the Grand Chamber

In light of the applicant having been granted residence, the Swedish government asked the Court to either strike the case from its list (because the matter was resolved) or declare it inadmissible (because the applicant could no longer be considered a victim). 

Article 37 § 1 of the Convention provides the Court with the option of striking a case from its list when ‘the matter has been resolved’. It also provides the Court with the opportunity of continuing to examine a complaint, even if the matter has been resolved, 'if respect for human rights as defined in the Convention and the Protocols thereto so requires'. 

The applicant asked the Grand Chamber to continue to examine the merits of his complaint because, despite him being granted residence in Sweden, he did not regard the matter to have been resolved. He made a number of arguments to support his request: 

  • first, the applicant reminded the Grand Chamber that his complaint concerned the question of whether the previous decisions by the Swedish authorities to return him to Libya, where he alleged he would have been at risk of inhuman or degrading treatment, had been in breach of Article 3;
  • second, and relatedly, the applicant stated that the Grand Chamber should consider whether the domestic authorities’ decisions were so flawed that they amounted to a procedural violation of Article 3;
  • third, the applicant stated that his complaint before the Grand Chamber also included questions about the correctness of the Chamber’s reasoning under Article 3;
  • fourth, the applicant stated that respect for human rights required that the Grand Chamber continue the examination of the case, since it raised serious issues of fundamental importance relating to homosexuals’ rights and how to assess those rights in asylum cases all over Europe; 
  • fifth, the applicant stated that he was still a victim since the Swedish authorities had at no point acknowledged a violation of his rights under the Convention.

The Grand Chamber’s response to the applicant

The Grand Chamber rejected all of the arguments advanced by the applicant. Focusing entirely on the present situation of the applicant (as someone who had been granted residence in Sweden) the Grand Chamber stated that it did 'not need to enquire retrospectively into whether a real risk engaging the respondent State’s responsibility under Article 3 of the Convention existed when the Swedish immigration authorities refused his asylum requests or when the Chamber adopted its judgment'. The Grand Chamber gave a simple reason for not examining the previous decisions of the Swedish authorities or the reasoning of its own Chamber: '[t]hese are historical facts but they do not shed light on the applicant’s current situation'.

The Grand Chamber also rejected the applicant’s claim that there were special circumstances regarding respect for human rights which required the continued examination of the complaint. In doing so, it noted that in its decision of 17th December 2014 the Migration Board had taken the applicant’s sexual orientation into account and found that he was in need of protection in Sweden. The Grand Chamber stated that '[a]gainst this background, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case'.

A missed opportunity

The Grand Chamber’s ‘all’s well that ends well’ approach can be seen as a way of 'dodging' an examination of the merits of the applicant's complaint about the material time that he was denied residence in Sweden. There are two obvious reasons for the Grand Chamber adopting this approach. First, to continue to examine the applicant’s complaint would have meant making a definitive judgment on whether the previous decisions of the Swedish authorities were compliant with the Convention. Second, and relatedly, this would have required the Grand Chamber to also pass judgment on the Court’s previous rejection of the applicant’s complaints and, in particular, the strongly worded Dissenting Opinion of Judge Power-Forde (Ireland).

The Grand Chamber’s reluctance to provide such a judgment will be regarded by many as deeply disappointing. This is not least because it is entirely possible that, following the Court’s Chamber judgment, the applicant might not have applied for referral to the Grand Chamber and, as a result of the Chamber judgment becoming final, might have been returned to Libya. For this reason alone, the Grand Chamber should have examined the merits of the complaint about the material time the applicant was denied residence.

The Grand Chamber cited a range of previous decisions to support its argument that ‘according to its established case-law in cases concerning the expulsion of an applicant from a respondent State, once the applicant no longer risks being expelled from that State, it considers the case to have been resolved and strikes it out of its list of cases’. However, none of the cases cited concern complaints that had been subject to a Chamber judgment, a referral to the Grand Chamber, and a subsequent ‘change of heart’ by the domestic authorities. M.E. v Sweden is significantly different to the cases the Grand Chamber cites because it concerns a complaint about the reasoning of the Court and not simply the reasoning of the domestic authorities. 

In this respect, the Grand Chamber's reluctance to reflect on the Court’s previous Chamber judgment will also be regarded by many as deeply disappointing. This is not least because in not refuting it, the Grand Chamber can be seen to – albeit implicitly and passively – endorse the reasoning of the Chamber judgment. Some will regard this as the Grand Chamber being unwilling to change the Court’s established ‘tradition’ of never upholding complaints by homosexual applicants who allege that expulsion to a state that criminalizes homosexual acts puts them at risk of treatment in violation of their Convention rights.

M.E. v Sweden posed a straightforward question for the Grand Chamber to consider: does returning an ‘identifying and practicing’ homosexual to a country that criminalizes homosexual acts amount to a violation of their Convention rights? The Grand Chamber’s failure to engage with this question – by not addressing whether the previous decisions of the Swedish authorities (to refuse the applicant residence) amounted to a violation of the applicant's Article 3 rights – is a missed opportunity to make a significant judgment in this important area. Some may take comfort from the fact that the Grand Chamber regarded the removal of the alleged risk to the applicant, by granting him residence in Sweden, ‘as decisive for the Court’s finding that the matter has been resolved’ and it striking the case from its list. Others will take no such comfort from a judgment that makes no significant difference to the Court’s established approach of allowing Contracting States the widest possible margin of appreciation to determine whether it is appropriate to return gay men and lesbians to states that operate a blanket prohibition on homosexual acts - a prohibition which puts gay men and lesbians at significant risk of ill-treatment. 




Wednesday, 8 April 2015

M.E. v Sweden - Grand Chamber judgment

The Grand Chamber of the European Court of Human Rights has today struck the complaint in M.E. v Sweden from its list. In doing so, the Grand Chamber has missed a key opportunity to make a significant statement on the treatment of individuals in Council of Europe states who seek asylum on the grounds of sexual orientation.

Analysis to follow soon...


Thursday, 2 April 2015

M.E. v Sweden - Grand Chamber judgment next week

The Grand Chamber of the European Court of Human Rights will deliver its judgment in M.E. v Sweden next week on 8th April 2015 at 11am. 

Last June, in a chamber judgment, the Court continued its long-standing approach of rejecting complaints from homosexual applicants who face expulsion to countries that criminalise homosexual sexual acts. Specifically, the Court rejected the claim that a Libyan national currently living in Sweden, who is threatened with expulsion from Sweden to Libya, would be put at risk of persecution and ill-treatment because he is a homosexual. 

outlined the chamber judgment and, in particular, the Dissenting Opinion of Judge Power-Forde (Ireland). I also considered here why Judge De Gaetano feels it necessary to use scare quotes when writing about the marriage of a same-sex couple. 

In November, the Court announced that the complaint would be referred to the Grand Chamber for consideration at the applicant's request.

When the Grand Chamber delivers its judgment next week it will simultaneously deliver its judgment in W.H. v Sweden, which concerns an asylum seeker’s threatened expulsion from Sweden to Iraq, where she alleges she would be at risk of ill-treatment as a single woman of Mandaean denomination (a vulnerable ethnic/religious minority).