Monday, 25 July 2016

Judges Spano and Bianku on same-sex couples, marriage, and family life

In the recently issued judgment of the European Court of Human Rights in Taddeucci and McCall v Italy - in which the Court held that excluding a same-sex couple, who were unable to marry, from a benefit available to married couples was a violation of Article 14 taken in conjunction with Article 8 of the Convention - Judge Spano (Iceland), who was joined by Judge Bianku (Albania), made some very striking comments, in a concurring opinion, about same-sex couples, marriage and family life. Judge Spano said:
I will not express a view on the Court’s current case-law granting deference to the Member States in deciding whether to legalise same-sex marriage. As things stand, that is the position of the Court, one by which I am bound on the basis of the principle of stare decisis. However, as recognised in Schalk and Kopf v. Austria (no. 30141/04, § 105, ECHR 2010), things may change [...] I am writing separately to highlight the fact that although States are not under an obligation to afford same-sex couples access to the institution of marriage, that does not mean that these individuals are unable to find sanctuary in this Court when invoking the right to respect for their family lives in particular contexts. On the contrary, if States decide to exclude same-sex couples from being able to marry, such a decision may have consequences when this Court is called upon to examine a claim of unjustified discrimination within a specific context that falls within the ambit of the right to respect for family life under Article 8 taken in conjunction with Article 14 of the Convention.
The significance of these comments will be obvious to anyone who follows the Court's jurisprudence on same-sex couples, marriage and family life. They are made in the context of the Court having consistently maintained that the right to marry enshrined in Article 12 of the Convention 'refers to the traditional marriage between persons of opposite biological sex' (Rees v the United Kingdom [1986], reiterated by the Grand Chamber in Hämäläinen v Finland [2014]) and that this places no obligation on Contracting States to grant same-sex couples access to marriage (see, most recently, Chapin and Charpentier v France [2016]). It also, in my viewremains unclear whether and in what circumstances Article 12 is applicable to same-sex couples. Moreover, there is the general context of the Court (and the former Commission) having for decades promulgated the view that same-sex couples enjoy no protection for their "family lives" under Article 8 of the Convention - a view that was finally changed in 2010 (Schalk and Kopf v Austria [2010]).

Understood within the history of Convention jurisprudence, the comments made by Judges Spano and Bianku appear to me to be incredibly important. It may be wishful thinking, but I read the comments in the following way:
I will not express a view on the Court’s current case-law granting deference to the Member States in deciding whether to legalise same-sex marriage [I am now going to express my view on the Court's current case law and its deference to States that do not wish to legalise same-sex marriage] 
As things stand, that is the position of the Court, one by which I am bound on the basis of the principle of stare decisis [I disagree with the current position of the Court, but, unfortunately, precedent dictates that I must be bound to the collective decision-making of my colleagues].  
However, as recognised in Schalk and Kopf v. Austria ... things may change [Things, however, are going to change, and at some point in the future, the Court will declare that Article 12 of the Convention requires States to permit same-sex couples to marry]. 
I am writing separately to highlight the fact that although States are not under an obligation to afford same-sex couples access to the institution of marriage, that does not mean that these individuals are unable to find sanctuary in this Court when invoking the right to respect for their family lives in particular contexts [I am writing to make it absolutely clear that, regardless of whether States decide to allow same-sex couples to marry, same-sex couples can find sanctuary - and I use that word deliberately to mean refuge from persecution and danger - in the European Court of Human Rights when States do not respect their right to respect for their family lives]. 
On the contrary, if States decide to exclude same-sex couples from being able to marry, such a decision may have consequences when this Court is called upon to examine a claim of unjustified discrimination within a specific context that falls within the ambit of the right to respect for family life under Article 8 taken in conjunction with Article 14 of the Convention [If States continue to exclude same-sex couples from marriage, and grant special privileges to married opposite-sex couples, this Court is now ready to more effectively use provisions in the Convention to address this unjustified discrimination]. 
Wishful thinking? Perhaps, but not outlandishly so.

Many thanks, Judges Spano and Bianku!




Friday, 22 July 2016

Updated "sexual orientation issues" factsheet available

The European Court of Human Rights has issued an updated "sexual orientation issues" factsheet, which contains details of recent judgments such as O.M. v Hungary and Taddeucci and McCall v Italy.

The factsheet can be found here:

http://www.echr.coe.int/Documents/FS_Sexual_orientation_ENG.pdf

Monday, 11 July 2016

Detention of gay asylum seeker violated ECHR - judgment in O.M. v Hungary

The European Court of Human Rights has issued its judgment in O.M. v Hungary. The applicant, Mr. M., is an Iranian national who was born in 1982 and currently lives in Budapest. The case concerned Mr. M's detention for 58 days following his request for asylum in Hungary.

The facts

Having travelled via Serbia, Mr. M. arrived in Hungary in June 2014, where he was apprehended and taken into custody. He filed a claim for asylum stating that he had been forced to flee Iran, his country of origin, because of his homosexuality. At his asylum hearing he alleged that because of his sexual orientation criminal proceedings had been instituted against him and that he faced severe penalties. 

On 25 June 2014 the Office of Immigration and Nationality ordered for him to be detained, referring to the fact that his identity and nationality had not yet been clarified and the risk of his frustrating proceedings or running away if left at large. 

Mr. M.’s request for release was subsequently dismissed by the competent district court, which extended his detention by 60 days. In August 2014, the asylum authority’s request for an additional 60-day extension was dismissed. 

Mr. M's detention was eventually terminated on 22 August 2014 and he was designated a place of residence. In October 2014 he was recognised as a refugee.

Complaint

Relying on Article 5 (right to liberty and security), Mr. M. complained that his detention was arbitrary and unjustified and that the authorities failed to take into consideration the individual circumstances of his case, in particular, his belonging to a vulnerable group.

Judgment of the Court

The Court's unanimous judgment was that Mr. M. had suffered a violation of Article 5 § 1 of the Convention. 

Article 5 § 1 states:
Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law...
The Hungarian government attempted to rely on Article 5 § 1(b) - which allows for an interference with Article 5 § 1 rights in order to secure "the lawful arrest or detention of a person for noncompliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law" - to justify Mr. M.'s detention. 

The Court would not accept the government's submission and stated that Article 5 § 1(b) could not convincingly serve as a legal basis for Mr. M's asylum detention. The key reason for this was that Hungarian domestic law did not meet the “obligation prescribed by law”  test. Specifically, domestic law did not contain the requirement that an asylum-seeker must provide documentary evidence of his identity and nationality. 

Importance of the judgment

The Court's judgment does not address the issue of sexual orientation and asylum per se. Mr. M. had already been granted refugee status by the domestic authorities and the case concerned his period of detention prior to this. However, the Court's judgment does contain a statement that may prove important in the ongoing struggle to gain protection for gay men and lesbians under the Convention when they face deportation from a Council of Europe state to a country of origin that criminalises same-sex sexual acts:
...the Court considers that, in the course of placement of asylum seekers who claim to be a part of a vulnerable group in the country which they had to leave, the authorities should exercise particular care in order to avoid situations which may reproduce the plight that forced these persons to flee in the first place. In the present case, the authorities failed to do so when they ordered the applicant’s detention without considering the extent to which vulnerable individuals – for instance, LGBT people like the applicant – were safe or unsafe in custody among other detained persons, many of whom had come from countries with widespread cultural or religious prejudice against such persons (§ 53)
This signals the Court's recognition of the vulnerability of gay men and lesbians who flee persecution from states with criminal laws and/or policies that are hostile to them, and reminds Council of Europe states of their duty to respond adequately to this vulnerability. 

It is to be hoped that the Court takes the next vital step soon, and establishes the principle that deporting a gay man or lesbian to a country that criminalises same-sex sexual acts is a violation of the Convention.