Thursday, 9 June 2016

Denying a same-sex couple access to marriage in France did not violate the ECHR - judgment in Chapin and Charpentier v France

The European Court of Human Rights has today issued its judgment in Chapin and Charpentier v FranceThe case concerns Stéphane Chapin and Bertrand Charpentier (both French nationals) and their asserted right to be married.

The facts

In May 2004, Mr Chapin and Mr Charpentier submitted a marriage application to the civil registry department of Bègles municipal council. The municipal civil registrar published the banns of marriage. The public prosecutor at the Bordeaux tribunal de grande instance served notice of his objection to the marriage on the Bègles municipal civil registrar and on Mr Chapin and Mr Charpentier. Despite the objection, the mayor of Bègles performed the marriage ceremony and made an entry to that effect in the register of births, marriages and deaths. The 'maverick mayor' was subsequently suspended.

On 22 June 2004, the public prosecutor brought proceedings against Mr Chapin and Mr Charpentier in the Bordeaux tribunal de grande instance, seeking to have the marriage annulled. On 27 July 2004, the court annulled the applicants’ marriage and ordered its judgment to be recorded in the margin of their birth certificates and the marriage certificate. The Bordeaux Court of Appeal upheld the judgment. Mr Chapin and Mr Charpentier appealed on points of law to the Court of Cassation, which on 13 March 2007 dismissed their appeal. The mayor of Bègles vowed to 'continue his fight' and stated that, "I have no regrets. I subscribe to this cause and I will persist."

The applicants' complaints

Relying on Article 12 (right to marry) taken together with Article 14 (prohibition of discrimination) of the European Convention on Human Rights, Mr Chapin and Mr Charpentier submit that limiting marriage to opposite-sex couples amounts to a discriminatory infringement of the right to marry. 

Furthermore, relying on Article 8 (right to respect for private and family life) taken together with Article 14 of the Convention, they contend that they have been discriminated against on the basis of their sexual orientation.

Legal situation, then and now

At the time that Mr Chapin and Mr Charpentier originally had their marriage solemnised, civil partnership (pacte civil de solidarité) was available to same-sex couples. They obviously did not want to enter into this 'alternative' form of legal arrangement.

Since Mr Chapin and Mr Charpentier lodged their complaint with the Court, France has made marriage available to same-sex couples.

The Court's judgment

In respect of the complaint under Article 12 taken in conjunction with Article 14, the Court declared the applicants' complaint admissible - which contrasts with the recent judgment in Oliari and Others v Italy in which the Court declared inadmissible a complaint under the same Articles concerning same-sex couples' exclusion from marriage. The Court also stated that Article 12 was applicable to the complaint, making reference to Article 9 of the Charter of Fundamental Rights of the European Union and its own judgment in Schalk and Kopf v Austria. However, the Court recalled that in Hämäläinen v Finland it had reiterated that Article 12 enshrined the traditional concept of marriage, as the union of a man and a woman, and that, although some Contracting States had opened up marriage to same-sex partners, this Article could not be interpreted as imposing an obligation on the Contracting States to do this. The Court also noted that it had restated that finding in Oliari and Others. The Court concluded that it saw no reason to reach a different conclusion, given the short time that had elapsed since the judgments delivered in Hämäläinen and Oliari and Others. It further noted that the applicants are now free to marry in France. It held, therefore, that there had been no violation of Article 12 taken in conjunction with Article 14 of the Convention.

In respect of the complaint under Article 8 taken in conjunction with Article 14, the Court reiterated that States remain free under these Articles to not open marriage to same-sex couples and that they enjoy a certain margin of appreciation to decide the exact nature of any status conferred on same-sex couples by forms of legal recognition that are alternatives to marriage. The Court noted that the applicants, although they could not marry, could have concluded a pacte civil de solidarité. In relation to the applicants' claim about the differences between marriage and pacte civil de solidarité, the Court would not comment and simply stated that the State acted within its margin of appreciation when creating these different legal arrangements. The Court therefore held that there had been no violation of Article 8 in conjunction with Article 14 of the Convention.

Does Chapin and Charpentier add anything to the Court's existing jurisprudence on same-sex marriage?

In the main, this judgment adds little to the Court's existing jurisprudence on same-sex marriage, because it clearly reaffirms the existing position that Contracting States are under no obligation to provide same-sex couples with access to marriage. 

However, there are a couple of points in the judgment that might be worth further consideration:

First, the fact that the Court declared the complaint under Article 12 taken in conjunction with Article 14 admissible is more positive or progressive than its approach in Oliari and Others v Italy (in which it declared a complaint by a same-sex couple about their exclusion from marriage as "maniesftly ill-founded" and therefore inadmissible).

Second, and relatedly, the Court has made further reference to the applicability of Article 12 to same-sex couples, citing its previous view "that it would no longer consider that the right to marry must in all circumstances be limited to marriage between two persons of the opposite sex" (Oliari and Others v Italy, § 191). However, unfortunately, the Court has gone no further in specifying which circumstances make Article 12 applicable and, importantly, which circumstances make Article 12 inapplicable to same-sex couples (for further consideration of this, see here). The Court again makes reference to Article 9 of the Charter of Fundamental Rights of the European Union, but this has no relevance to the 19 Council of Europe States that are not members of the European Union. My view is that if Article 12 "applies" to same-sex couples, then the Court needs to explain how depriving same-sex couples of the right to marry meets its own requirement that a State cannot "restrict or reduce the right [to marry] in such a way or to such an extent that the very essence of the right is impaired" (Rees v the United Kingdom) and, therefore, "may not [...] deprive a person or a category of persons of full legal capacity of the right to marry with the partners of their choice" (O'Donoghue and Others v the United Kingdom). I remain of the opinion that stating that Article 12 can apply to same-sex couples in some circumstances, declaring a complaint by a same-sex couple about their exclusion from marriage admissible, and then finding that such exclusion does not violate Article 12 of the Convention, is an illogical approach.



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