ECtHR Judgment: States not Obliged to Allow Homosexual Marriages

In a key judgment issued today, the European Court of Human Rights ruled on a complaint of a homosexual couple in Austria who were denied the right to marry. Although very recently (January 2010) Austria created the possibility to enter into a Registered Partnership for same-sex couples, marriage still is not possible. The applicants in this case, Schalk and Kopf, complained both under Article 12 (right to marry) and Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to private and family life). The Court found no violation of their human rights, although it was very divided on the issue of discrimination (four votes against three in holding that Austria did not discriminate).

On the right to marry of Article 12 ECHR, the Court observed this was the first case in which it exmained whether people of the same sex had the right to marry. In earlier cases, the Court had looked at the position of transsexuals, in which it had concluded that (para. 53) "Article 12 enshrined the traditional concept of marriage as being between a man and a woman. The Court acknowledged that a number of Contracting States had extended marriage to same-sex partners, but went on to say that this reflected their own vision of the role of marriage in their societies and did not flow from an interpretation of the fundamental right as laid down by the Contracting States in the Convention in 1950." As to the litteral text of Article 12, the Court held that, looked at in isolation, the text "be interpreted so as not to exclude the marriage between two men or two women" (para. 55). But it then continued to add that "However, in contrast, all other substantive Articles of the Convention grant rights and freedoms to “everyone” or state that “no one” is to be subjected to certain types of prohibited treatment. The choice of wording in Article 12 must thus be regarded as deliberate. Moreover, regard must be had to the historical context in which the Convention was adopted. In the 1950s marriage was clearly understood in the traditional sense of being a union between partners of different sex."

The applicants asked the Court to interpret the text of Article 12 ECHR in the light of present-day conditions, an interpretation method which the Court has often used in the past to give a new or extended meaning to Convention provisions. This depends to a great extent on an evolving or developing consensus within Europe on a certain matter. In this case, however, the Court noted that there is no European consensus on same-sex marriage. To be precise, it stated that currently only six out of a total of 47 Convention states allow such marriages.

Interestingly, the Court also looked at the Charter of Fundamental Rights of the European Union (27 members) which includes in its Article 9 a right to marry without a reference to men or women, but with a reference to national law in accordance with which that right should be guaranteed. Thus, Article 9 of the Charter, leaves the decision to the states whether or not to recognise same-sex marriages (without oblgiing them to do so). On the basis of this, the European Court of Human Rights concluded on Article 12 that it "would no longer consider that the right to marry enshrined in Article 12 must in all circumstances be limited to marriage between two persons of the opposite sex. Consequently, it cannot be said that Article 12 is inapplicable to the applicants’ complaint. However, as matters stand, the question whether or not to allow same-sex marriage is left to regulation by the national law of the Contracting State." (para. 61). The door is thus left open a little bit, which basically affirms that those countries who do recognise and allow for same-sex marriages do so within the limits of human rights. This did not help the applicants of course. The Court went on to re-affirm that marriage has deep roots in societies and differs from one place to another. Considering this, it found it should not "rush to substitute its own judgment in the place of that of national authorities." To summarise, Article ECHR 12 does not oblige states to allow same-sex couples to marry.

The applicants may have foreseen this outcome and therefore also argued a violation under Articles 8 and 14 taken together. But that backdoor was also closed by the Court, since it held that the Convention's articles have to be interpreted in harmony with each other. The Court thus did not want to grant under these articles what it did not grant under Article 12. However, and here lies the importance of the present judgment, the Court did make a significant step by recognising that stable relationships of cohabiting same-sex couples fall within the notion of family life. This may seem self-evident to many, but for the Court it is a first. I cite the relevant paragraphs in full here:

93. The Court notes that since 2001, when the decision in Mata Estevez was given, a rapid evolution of social attitudes towards same-sex couples has taken place in many member States. Since then a considerable number of member States have afforded legal recognition to same-sex couples (see above, paragraphs 27-30). Certain provisions of EU law also reflect a growing tendency to include same-sex couples in the notion of “family” (see paragraph 26 above).
94. In view of this evolution the Court considers it artificial to maintain the view that, in contrast to a different-sex couple, a same-sex couple cannot enjoy “family life” for the purposes of Article 8. Consequently the relationship of the applicants, a cohabiting same-sex couple living in a stable de facto partnership, falls within the notion of “family life”, just as the relationship of a different-sex couple in the same situation would.

The Court then went on to look at the case from a non-discrimination angle in which it reiterated that differences made by the state based on sexual orientation required a serious justification. It also held, innovatively in its jurisprudence, that "same-sex couples are just as capable as different-sex couples of entering into stable committed relationships. Consequently, they are in a relevantly similar situation to a different-sex couple as regards their need for legal recognition and protection of their relationship." (para. 99).

Nevertheless, it went on to hold that since Austria had introduced a same-sex partnership it would not look at whether a total lack of legal ecognition of same-sex couples would violate the Convention, but only whether Austria had been obliged to offer any alternative way of legal recognition previous to the new partnership law. The Court held that Austria was not obliged to do so, with an explicit reference to the fact that there is "an emerging consensus towards legal recognition of same-sex couples" (para. 105) and that this was a rapidly developing tendency in the past ten years, but that currently no consensus existed yet (which it described as: there is no majority of states doing this yet). Consequently, states should enjoy a wide margin of appreciation. This margin also extended to the precise way in which alternatives (to marriage) of legal recognation fell within that margin. Thus the Court concluded that also on this count the Convention was not violated.
It must be noted, that on the issue of Articles 14 and 8, the Court came to its conclusion with a very small margin (four votes to three). The means that it might be wise for the applicants to ask the Court to have its Grand Chamber take a new look at the case on this very principled point. Indeed, as the three dissenters point out, there is a legal tension between saying that particular serious justifications are needed for such difference of treatment and then paradoxically not assessing whether such reasons where present, but rather going into the margin of appreciation question. Arguably, it is one or the other: the first approach suggests a rather small margin, the second implies that the justifications advanced by the state can be manyfold.

Thus this judgment seems to be a kind of Echternach procession: two steps forward, one step back (or even one step forward and two steps back, depending on ones perspective). It makes some important advances by recognising the at least factual and symbolic equality of same-sex and other couples, but it does not attach any far-reaching and clear legal consequences to that. Either a Grand Chamber judgment or a judgment in a different case which focuses on a situation in which any form of legal recognition in the country concerned was absent, should offer more clarity. The judgment seems to take a slightly too prudent approach for reasons of judcial politics (this outcome is the most acceptable to all states probably), but leaves us with a reasoning that is not entirely convincing nor an outcome which is very promising for same-sex couples.

It may be noticed that the government of the United Kingdom intervened on the side of Austria and that four NGOs (ICJ, FIDH, AIRE Centre and the European Region of the International Gay and Lesbian Association) intervened on the side of applicants.

New ECHR Academic Articles

Three new ECHR-related articles have recently been published. The first is authored by Nadezhda Purtova and has just been published in our own Netherlands Quarterly of Human Rights (Vol. 28, No. 2, 2010, pp. 179-198). It is entitled 'Private Law Solutions in European Data Protection: Relationship to Privacy, and Waiver of Data Protection Rights '. This is the abstract of the article:

This paper seeks to define how the legal categories of privacy and data protection correlate in the European legal system, and what the effects such a correlation has on the mode of data protection. Since the norms of the EC data protection law did not provide a conclusive answer, this paper turned to the ECHR for guidance. As a roadmap of analysis this paper picked the dichotomy between privacy and data protection based on the negative rights and positive obligations explained by De Hert and Gutwirth. The analysis of Art. 8 ECHR case-law led to the conclusion that the European Court of Human Rights does not limit the application of Art. 8 ECHR to private sphere only, and the provision on privacy protection has been applied as giving individuals positive rights (for instance, to refute false information about oneself) and imposing on the states affirmative obligations to create and ensure functioning of an effective system of data protection. The conclusion has been reached that European legal order treats data protection as a privacy interest.

Besides, it has been shown that legal recognition of such a close relationship is much more than just a matter of conviction on the philosophical meaning of privacy. Data protection benefits significantly from enjoying protection of a fundamental right status. Removal of data protection from the scope of privacy rights is not necessary and not desirable. First, development of the ECHR case-law expands privacy protection beyond negative right against state intervention to include affirmative obligations of a state to create a data protection system. Second, treating data protection as anything less than a fundamental right under Art. 8 ECHR will allow its waiver and thereby open the door for a dramatic change in approach to data protection.

The second is an article in the same issue of the Netherlands Quarterly, written by Andrew Drzemczewski, entitled 'The Parliamentary Assembly's Involvement in the Supervision of the Judgments of the Strasbourg Court'. This is the abstract:

Even though the Committee of Ministers of the Council of Europe has primary responsibility to supervise the execution of the judgments of the European Court of Human Rrights, by virtue of article 46(2) of the European Convention on Human Rights, the Parliamentary Assembly has increasingly contributed to the process of implementation of the Strasbourg Court's judgments. Composed of national parliamentarians, the Assembly can put pressure on states parties to the Convention to help ensure - through appropriate national parliamentary oversight procedures and mechanisms - rapid and complete implementation of Strasbourg Court judgments. This important Parliamentary dimension should be taken into account when the 2010 Interlaken declaration and action plan are implemented.

The third is an article in the European Journal of Crime, Criminal Law and Criminal Justice (2010, p. 225-236) by Tijs Kooijmans, entitled 'The Burden of Proof in Confiscation Cases: A Comparison between the Netherlands and the United Kingdom in the Light of the European Convention of Human Rights'. This is the abstract:

The Dutch Minister of Justice recently brought a legislative proposal before the Lower House in which a new broadening of the possibilities for deprivation of advantages was proposed. A comparison of Dutch law with the law of the United Kingdom is useful for a proper assessment of the value of the Dutch proposal. For that reason, the possibilities offered by the confiscation order in the United Kingdom are outlined in this paper. Next, it will be examined how, according to the case law of the ECtHR, the imposition of that confiscation order relates to the presumption of innocence as contained in Article 6 ECHR. Afterwards, the case law of the ECtHR will be represented by a Dutch case that shows some similarity to the imposition of the confiscation order in the United Kingdom. Lastly, several conclusions will follow.

Enjoy reading!

New German and Maltese Judges Elected

Yesterday the Parliamentary Assembly of the Council of Europe elected two new judges to the Court. With respect to Germany, the new judge will be Angelika Nussberger, currently law professor at the University of Cologne. The new Maltese judge will be Vincent Anthony De Gaetano, currently Chief Justice and President of the Constitutional Court, of the Court of Appeal and of the Court of Criminal Appeal. For the result of the vote relating to the German judge, click here. For the one relating to the Malteese judge click here. For the CVs, click here. The new Maltese judge will take up office within three months allowing the oldest judge on the Court, Giovanni Bonello, to finally retire. The new German judge will start working as of 1 January 2011. Both have been elected for a term of office of nine years.

Rendition Case to be Heard in Strasbourg

The case of the former terrorism suspect Khaled El-Masri is due to be considered in Strasbourg by the European Court of Human Rights, according to the Open Society Institute who is supporting his case. El-Masri was arrested by Macedonia in 2003, held incommunicado for over three weeks, and then handed over to the United States, under a practice known since a few years as extraordinary rendition, a very debated issue obviously. He was allegedly flown to Afghanistan, held and ill-treated there and eventually released in the countryside in Albania(!). After pursuing legal venues in vain within the American judicial system, his lawyers are now turning to the European Court, having lodged an application against Macedonia last year. For the press release of the Open Society Institute, click here. For more facts on the case and the application itself, click here.

See also the reporting on the Guardian Legal Network, of which this blog is also a partner, here.

Thanks to Darian Pavli of the Open Society Blog!

Procedure for Electing Judges at the Court

The secretariat of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly has issued a document on the 'Procedure for Electing Judges to the European Court of Human Rights'. It is a handy summary of all the rules and developments on the issue of the last few years. The belated entry into force of Protocol 14 on the 1st of June extended the terms of office of the current judges and provides that newly elected judges will have a term of office of nine years. Still, several judges will retire from the Court after many years of acclaimed service. A timetable in the document indicates the foreseen elections for 2010 and 2011. These will include replacements for the highly valued President of the Court, Costa, in 2011 and of judges Jaeger of Germany and Rozakis of Greece later this year amongst others. A great loss of experience, for which one may hope highly qualified replacements will come. Last but not least, the end of the predicament of Maltese judge Giovanni Bonello (born in 1936) is in sight. He was due to retire in 2004 already but for lack of a replacement he is still going strong and continues to write his extremely well-phrased separate opinions, often imbued with a fine sense of irony - I can strongly recommend them to everyone!

Judgment on Non-Religious Education in Poland

Human rights in classrooms - it seems to be a topic of increasing popularity (or concern) in Strasbourg these days. Yesterday, the Court issued its judgment in the case of Grzelak v. Poland. The case concerned a Polish boy who refused to attend reilgious education in the various primary (and later secondary) schools he attended for reasons of personal conviction, with the full approval of his parents who were agnostics. Since, for a lack of other pupils in a similar situation no alternative courses such as ethics were offered, he had to spend such hours alone, apart from the other pupils. According to his parents that made him the subject of social ridicule and exclusion. In spite of various demands by the parents, no inter-school ethics were organised, since the number of interested pupils was too small. On his school reports, the place was the mark for religion/ethics was instead filled up by a straight line.

The first complaint related to the fact that the marking with a line, although seemingly neutral in effect revealed the convictions of the applicant against his will. For in practice, most schools did not offer ethics courses but only religious ones. A straight line under the heading 'religion/ethics' thus would reveal more than one might want. The Court considered this part of the complaint under Articles 9 (freedom of religion) and 14 (prohibition of discrimination) taken together. First the Court re-emphasized that Articel 9 also protected non-believers. In para. 87 it held:

It necessarily follows that there will be an interference with the negative aspect of this provision when the State brings about a situation in which individuals are obliged – directly or indirectly – to reveal that they are non-believers. This is all the more important when such obligation occurs in the context of the provision of an important public service such as education.

It continued by noting, in para. 93, on religious information:

The Court reiterates that religious beliefs do not constitute information that can be used to distinguish an individual citizen in his relations with the State. Not only are they a matter of individual conscience, they may also, like other information, change over a person's lifetime (see, mutatis mutandis, Sofianopoulos and Others v. Greece (dec.), nos. 1977/02, 1988/02 and 1997/02, ECHR 2002-X; and Sinan Işık v. Turkey, no. 21924/05, § 42, 2 February 2010). Although the above cases concerned identity cards, documents of arguably greater significance in a person's life than school reports for primary and secondary education, the Court nonetheless finds that similar considerations apply to the present case.

Especially in a country like Poland, with a great majority of the people adhering to one specific religion, the situation of the boy took on a "particular significance" (para. 95). In this case, in the Court's view, the very core of the boy's right not to manifest his convictions was infringed.

The second complaint related to the refusal to offer alternative courses in ethics to the boy. On that matter, the Court concluded under Article 2 of Protocol 1 (right to education) that Poland had remained within its margin of appreciation. After all, both religious and ethics education were optional and not compulsory, subject to the requirement that a minimum number of students is interested. The practice in Poland of a minimum seven pupils for such classes was in that sense not deemed unreasonable. No violation on that count therefore.

The Court was at pains to distinguish the case from its own decision in Saniewski v. Poland of 2001, in which it declared a very similar complaint on the straight line in school reports "manifestly ill-founded". The only dissenting judge in the Grzelak case, David Thór Björgvinsson, quite convincingly points out that the two cases are not that different. It seems rather that the Court, nine years later simply takes a different position. It would have been clearer if it would have openly argued so.

Article on Right to Individual Petition

Astrid Kjeldgaard-Pedersen of the University of Aarhus has just posted 'The Evolution of the Right of Individuals to Seise the European Court of Human Rights' (forthcoming in the Journal of the History of International Law) on SSRN. This is the abstract:

In at least two ways the year 2009 was a milestone for the European Court of Human Rights (ECtHR, the Court). On the bright side, the Court could celebrate its 50th anniversary and its continuous role as principal promoter of human rights in the 47 Member States of the Council of Europe (CoE, the Council). However, 2009 was also the year in which the number of pending cases before the Court passed the disturbing 100 000 benchmark.

Paradoxically, the main reason for both the Court’s success and its current crisis is the right of petition of individuals. The present article contains a detailed inquiry into the coming into existence of this central feature of the control machinery of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR, the Convention) that was labeled a breakthrough in the field of human rights as well as in general international law.

Parts I-IV of the article provide a chronological account of the drafting processes leading up to the adoption of the ECHR in 1950, and Protocol 9 in 1990. In analysis of reports and meeting minutes from a number of organs set up in the realm of the Council, the study concentrates on two main questions: Why did the original Convention end up excluding individuals from the proceedings of the ECtHR? And what changed in the time between 1950 and 1990 to facilitate the individual’s right to seise the Court independently?

As parts I-IV reveal, the development of the ECHR control machinery provides an interesting example of the interplay – or rather lack of same – between the practical decision-making among the parties to a convention and international legal theory. Part V reflects on the extent to which the theoretical discussion on the position of individuals in international law influenced the evolution of the right of individuals to seise the ECtHR.

Paper on Effective Application of ECHR and EC Law in Cyprus

Nikolas Kyriakou of the European University Institute in Florence has just posted on SSRN an article on the national implementation of European norms. The paper is entitled 'National Judges and Supranational Laws on the Effective Application of the EC Law and the ECHR: The Case of Cyprus'. It takes issue with the domestic effect of EU and ECHR law in Cyprus and analyses the changes that have occured in the national legal order for their reception.

Court Information Note on Pilot Judgments

It may have been online for some time already, but I only just saw it and would like to bring it to your attention: the Court's registry has drafted a short information note on the pilot judgment procedure. For more information on the pilot judgment procedure, see als the recent book 'An Analysis of 'Pilot Judgments' of the European Court of Human Rights and Their Impact at National Level' and my own article in the Greek Law Journal, entitled 'The Pilot Judgment Procedure at the European Court of Human Rights: Possibilities and Challenges'.

Religious Oath in Court Proceedings Judgment

In Greece, witnesses and suspects in criminal proceedings are required to indicate epxlicitly if they do not want to take an oath on the Bible. This way they are forced to reveal their religious( or non-religouis) convictions. Four different people complained about this in Strasbourg and yesterday won their case, in which they were represented by the Greek Helsinki Monitor. In Dimitras and others v. Greece the Court decided that such an obligation violated the freedom of religion under Article 9 ECHR. This is an excerpt from the Court's press release on the relevant part of the judgment:

The Court reiterated that freedom of thought, conscience and religion, which went hand in hand with pluralism, was one of the foundations of a “democratic society” and that in its religious dimension that freedom was an essential part of any believer’s identity, as well as being a precious asset for atheists, agnostics, sceptics and the unconcerned. It had already held that freedom to manifest one’s religious beliefs included an individual’s right not to reveal his faith or his religious beliefs and not to be obliged to act or refrain from acting in such a way that it was possible to conclude that he did or did not have such beliefs – and all the more so when aptitude to exercise certain functions was at stake.

The applicants had been considered as Orthodox Christians as a matter of course, and had been obliged, sometimes in hearings, to point out that they did not subscribe to that faith and, in some cases, to specify that they were atheists or Jews in order to have the standard wording of the minutes amended. In some court records they were expressly described as “atheists” or “of the Jewish faith”.

This interference with their freedom of religion had been based on Articles 218 and 220 of the Code of Criminal Procedure and pursued the legitimate aim of the proper administration of justice. Article 218 regulated the taking of the oath in court, on the Bible. It was thus presumed in the Code of Criminal Procedure that all witnesses were Orthodox and willing to take the oath, as reflected in the standard wording of the records of court proceedings. Indeed, it is only exceptions to the rule that Article 220 provides for, allowing those who were not Orthodox Christians to take the oath in conformity with another religion or to make a solemn declaration if they had no religion or their religion did not permit oath taking.

The wording of Article 220 actually required people to give details of their religious beliefs if they did not want the presumption contained in Article 218 to apply to them. Some of the applicants had had to convince the court officials concerned that they did not subscribe to any religion, failing which they would have had to take a religious oath. The incompatibility of the impugned legal provisions with Article 9 of the Convention was even more evident in Article 217 of the Code of Criminal Procedure, which stipulated that in any event all witnesses were required, amongst other information, to state their religion before testifying in criminal proceedings. The Court further noted that, unlike the Code of Criminal Procedure, the Code of Civil Procedure provided for witnesses, if they so wished and without any other formality, to be able to choose between taking a religious oath and making a solemn declaration.

The Court found that requiring the applicants to reveal their religious convictions in order to be allowed to make a solemn declaration had interfered with their freedom of religion, and that the interference was neither justified nor proportionate to the aim pursued. There had therefore been a violation of Article 9.

The problem was to be found firstly in the fact that the Code of Criminal Procedure itself started with the assumption that witnesses are Orthodox Christians and secondly that it preconditions exceptions to that rule on more information on the other religion (or lack thereof) that the witness adheres to, in order to decide on the kind of oath they are allowed to take. The practice is a clear example in which due to tradition a certain religion is given the main stage. It seems to me that this could be easily changed without prejudice to any religion into a more neutral provision, just as the one already existing in Greek civil law (and the ones existing in many other countries).

The judgment is available in French only, but the enitre English press release can be found here.