X v Austria Judgment

It is my pleasure once again to welcome a guest post by dr Paul Johnson of the University of York. This time he has written a guest post on this week's judgment in X and Others v. Austria, about adoption for same-sex unmarried couples. Let me also take the opportunity to point to his newly started blog entitled the ECHR Sexual Orientation blog. This is his guest post on the judgment:

X. and Others v Austria

by Paul Johnson

On 19^th February 2013, the Grand Chamber of the European Court of Human Rights issued an important judgment in respect of a complaint about discrimination on the grounds of sexual orientation in second parent (step parent) adoption. In X. and Others v Austria three applicants, a female same-sex couple and the biological child of one of the partners, complained that their legal exclusion from second parent adoption constituted discrimination contrary to Articles 8 and 14 of the ECHR.

Second parent adoption is available to married and unmarried opposite-sex couples in Austria, but unavailable to same-sex couples because of Article 182(2) of the Civil Code (which requires second parent adoption to be formed within opposite-sex couples). The complaint in X. and Others v Austria is different to the complaints brought in previous adoption cases concerning sexual orientation heard by the Court which concerned discrimination in adoption by single individuals (Fretté v France; E.B. v France) and discrimination between opposite-sex married couples and same-sex couples in civil partnerships (Gas and Dubois v France). In the present case, the key complaint was that same-sex couples were differentiated from both unmarried and married opposite-sex couples.

The background to the complaint was the refusal by the domestic Austrian courts to allow one of the applicants (the first applicant) to adopt the biological child (the second applicant) of her partner (the third applicant). Whilst the proceedings in the domestic courts were lengthy and encompassed a number of important issues – not least, the refusal of the child’s biological father to consent to the adoption – the consistent complaint advanced by the applicants was a principled objection to the existence of Article 182(2) of the Civil Code. Their complaint to the Court was about the blanket exclusion of same-sex couples from second parent adoption by Article 182(2) rather than about any aspect of the merits of their individual adoption application.

The Court held by a majority (ten to seven) that there had been a violation of Article 14 taken in conjunction with Article 8 of the Convention on account of the difference in treatment of the applicants in comparison with unmarried opposite-sex couples in which one partner wished to adopt the other partner’s child; and, unanimously, that there had been no violation of Article 14 taken in conjunction with Article 8 when the applicants’ situation was compared with that of a married couple in which one spouse wished to adopt the other spouse’s child.

There are a number of interesting facets to the judgment, and I will concentrate only on three issues here.

Consistent application of existing jurisprudence on sexual orientation discrimination

The key reason why the complaint succeeded in the Court was the applicants’ comparison of their family life with that of unmarried opposite-sex couples. In applying its standard ‘tests’ to determine whether a difference in treatment amounts to discrimination under Article 14, the Court accepted that the applicants were in an analogous position with an unmarried opposite-sex couple, that there was ‘no doubt that the applicable legislation leads to a distinction between unmarried different-sex and same-sex couples in respect of second-parent adoption’ (§ 116), and that the ‘difference was inseparably linked to the fact that the first and third applicants formed a same-sex couple, and was thus based on their sexual orientation’ (§ 130). The Court reiterated its now established case law that differences based on sexual orientation require particularly serious reasons by way of justification, that where a difference of treatment is based on sexual orientation a State’s margin of appreciation is narrow, and emphasized (a point which is sometimes explicitly missing from its judgments) that differences based solely on considerations of sexual orientation are unacceptable under the Convention.

The chief focus of the Court’s judgment is on the fact that ‘the applicants were directly affected by the law complained of’ (§ 126) and the major substance of its review is directed to the ‘narrowly defined issue of alleged discrimination between unmarried different-sex couples and same-sex couples in respect of second-parent adoption’ (§ 134). This approach was criticized by the seven dissenting judges who argued that the Court’s consideration of the impugned legislation was inappropriately abstract and failed to pay sufficient attention to the substantive issues involved in the adoption case at hand (such as the best interests of the child). Another point of criticism advanced by the dissenters was that the Court had inappropriately employed its ‘living instrument’ doctrine to reach a judgment that went ‘beyond the usual limits of the evolutive method of interpretation’. This claim may have been encouraged by the fact that, whilst the Court stated that it was ‘not called upon to rule on the issue of second-parent adoption by same-sex couples as such, let alone on the question of adoption by same-sex couples in general’ (§ 134), it did make a number of striking remarks, such as ‘the Austrian legislation appears to lack coherence’ (§ 144), which implicitly urge wide reform. Yet, in respect of the issue concerned – the existence of legislation that differentiates between unmarried same-sex and opposite-sex couples – the Court’s approach to its review and the judgment it reached are consistent with its established case law on discrimination on the grounds of sexual orientation.

Reassertion of a heteronormative view of marriage

Aside from the view expressed by Judge Spielmann in his concurring opinion – in which he re-stated his argument first expressed in Gas and Dubois v France that unmarried same-sex couples are in a comparable position to opposite-sex married couples but, lamentably, went on to conclude that he did not feel it necessary to examine the issue – the Court unanimously determined that unmarried same-sex couples are not in a comparable position to married opposite-sex couples and, therefore, are not discriminated against when they are denied legal rights reserved for married couples. The Court stated that it found it ‘appropriate to repeat and confirm’ its view that ‘Article 12 of the Convention does not impose an obligation on the Contracting States to grant same-sex couples access to marriage’, ‘[n]or can a right to same-sex marriage be derived from Article 14 taken in conjunction with Article 8’, that ‘[w]here a State chooses to provide same-sex couples with an alternative means of legal recognition, it enjoys a certain margin of appreciation as regards the exact status conferred’, and that ‘marriage confers a special status on those who enter into it’ (§ 106). The significant emphasis on this interpretation of Article 12 in the judgment, and the unanimous agreement on this line of reasoning, is a clear sign that the Court intends no evolution in its case law on same-sex marriage in the near future.

As I have argued elsewhere, the margin of appreciation granted by the Court to contracting states to maintain the heterosexual exclusivity of marriage under Article 12 perpetuates a wide range of discrimination suffered by same-sex couples and their families. Gay men and lesbians cannot complain under Article 14 about discrimination that results from being outside the ‘special status’ of marriage because such exclusion is permitted under Article 12. Given that same-sex couples are excluded from marriage in the majority of Contracting States, and therefore cannot gain access the legal rights associated with marriage, the Court effectively underwrites Contracting States’ ability to maintain forms of discrimination solely on the grounds of sexual orientation. The Court’s apology for discrimination on the grounds of sexual orientation in respect of marriage flies in the face of the conclusions reached by the highest courts of other jurisdictions, such as South Africa, which argue that it is precisely because of the ‘special status’ of marriage that makes differential treatment on the grounds of sexual orientation in relation to it one of the most pernicious form of discrimination in contemporary societies. One day it will become common to look back on the Court's restrictive heteronormative interpretation of Article 12 with the same mix of incredulity and horror that is produced when reading statements like ‘the Convention permits a High Contracting Party to legislate to make homosexuality a punishable offence’ (W.B. v Germany, 1955).

The approach to consensus analysis

The Court’s approach to consensus analysis in this case exemplifies and explicates all that is problematic about this aspect of the Court's methodology. I have argued elsewhere that the Court’s judgments show that consensus analysis is a device through which ‘reality’ is selectively represented in order to add weight to its moral reasoning. The Court does not fabricate or ‘make up’ consensus but what counts as consensus is always significantly influenced by the moral standpoints adopted by the judges sitting in each individual case.

The question of consensus was particular prominent in this case because the Austrian government had asserted that Contracting States should have a wide margin of appreciation on the issue of second parent adoption by same-sex couples given that only ten Council of Europe member States permit it and, consequently, there is no European consensus. The Court dismissed this claim by arguing that the only relevant sample on which to base an analysis of consensus was of those ten states that permit second parent adoption by unmarried couples, six of which treat opposite-sex couples and same-sex couples in the same manner and four who adopt the same position as Austria. By adopting this narrow sample of states as the basis for consensus analysis the majority was able to claim that ‘no conclusions can be drawn as to the existence of a possible consensus among Council of Europe member States’. I have some sympathy with the dissenters’ claim that this conclusion is ‘to say the least, curious’ because ‘the States in question are sharply divided and that there is therefore no consensus’. Furthermore, I think it understandable that the dissenters argued that the ‘somewhat strange reasoning’ of the majority ‘is explained by the fact that the method used may in reality not be the right one’.

This argument over the appropriateness of the sample is understandable if one accepts that the majority selected a sample in order to, as the dissenters argue, disregard ‘a clear trend whereby the great majority of the States Parties currently do not authorise second-parent adoption for unmarried couples in general, still less for unmarried same-sex couples’. The dissenters call the majority’s choice of sample ‘unduly technical – and hence reductive’ but I think a better description of it would be ‘expedient’. This is not to say that I agree with the dissenters’ argument that it would have been more ‘appropriate and simpler to speak in terms of a “trend”’ – a view that ultimately underpins their judgment that the absence of any consensus in international law should have prevented the applicants’ from bringing a successful complaint under the Convention. Rather, my point is that the Court would be better to dispense with the issue of consensus altogether in cases such as this and apply the established principle that when it comes to issues of discrimination on the grounds of sexual orientation under Article 14 a State’s margin of appreciation is narrow and that, therefore, the practice of other Contracting States is of little concern. This would reduce the uncertainty and variability that consensus analysis produces in the Court’s approach – after all, had two of the majority joined the dissenters in their view that a ‘trend’ approach was preferable to the ‘narrow’ sample selected, the outcome of the judgment would have been different – and remove the need to consider majoritarian practice when examining alleged violations of the fundamental rights of minority groups.

A good judgment?

The Court’s judgment must ultimately be regarded as positive because it recognizes that laws in Austria and other Contracting States that currently exclude same-sex couples from second parent adoption whilst affording it to unmarried opposite-sex couples create discrimination in violation of Convention rights. These Contracting States will be required to amend legislation that is now in breach of the Convention. Such incremental advances in ending discrimination against gay men and lesbian are always very welcome.

Yet the judgment, as is so often the case with judgments issued by the Court in respect of sexual orientation complaints, is also problematic for a number of reasons. A central concern must be the strong restatement of the principle that the differential treatment of unmarried same-sex couples and opposite-sex married couples will not amount to discrimination under the Convention. This leaves Contracting States free to maintain a situation in which only heterosexual couples have access to marriage and, consequently, to the wide range of legal rights that flow from it.

X. and Others v Austria therefore represents a significant evolution of the principle of non-discrimination in respect of sexual orientation between unmarried couples, whilst further legitimizing and protecting the discrimination that results from the exclusion of gay men and lesbians from marriage.

El-Masri Comments Roundup

It is now two months ago that the Grand Chamber of the European Court of Human Rights delivered its judgment in the case of El-Masri v. Macedonia on extraordinary rendition. This important judgment has led to a number of interesting comments and reactions. For your convenience I assemble them here.

The case was commented upon in a range of law blogs:

- 'Extraordinary rendition gets to Strasbourg – a right to the truth' on UK Human Rights Blog.

- 'Condemning extraordinary rendition: El-Masri v. the former Yugoslav Republic of Macedonia' on Strasbourg Observers.

- 'European Court: U.S. Extraordinary Rendition “Amounted to Torture”' on American Civil Liberties Union's Blog of Rights.

- 'ECtHR: Macedonian Government Responsible for Torture of El-Masri' on iLawyer.

- 'The ECtHR Finds Macedonia Responsible in Connection with Torture by the CIA, but on what Basis?' on EJIL Talk!

In addition, a large number of human rights NGOs reported on the case:

- Public Statement by Amnesty International and the International Commission of Jurists

- Open Society Foundation

- Human Rights Europe

- American Civil Liberties Union

- Interights

- Amnesty International Ireland

- Amnesty International USA 

The whole case was to an important extent built on information gathered by PACE rapporteur Dick Marty, who for years investigated the secret detention sites in Europe and the practice of rendition. See e.g. this report of his in which El-Masri is reported on as a case study.

Court Reform Special Website

The Council of Europe has launched a special webpage on its site which brings together all the key documents and updates about the ongoing reform process of the European Court of Human Rights. The site was presented last week during a meeting of the Committee of experts on the reform of the Court (DH-GDR). The agenda of that meeting can be found here. The site includes a short history (including all the reference documents) of the reforms so far, an overview of the different working groups (including their documents). Interesting progress reports include:

- a draft CDDH report on interim measures under Rule 39 of the Rules of Court which notes, amongst others, that the number of indications of interim measures has decreased to a considerable extent in the past two years. It also notes, interestingly since this comes from state party representatives, although the text is of course still a draft, that "Member States should be reminded that Article 34 of the Convention entails an obligation for States Parties to comply with an indication of interim measures made under Rule 39 of the Rules of Court and that non-compliance normally implies a violation of Article 34 of the Convention."

- a draft CDDH report on the advisability and modalities of a "representative application procedure" This would be " a procedure by which the Court could register and determine a small number of representative applications from a group of applications that allege the same violation against the same respondent State, such determination being applicable to the whole group" and would thus build upon the pilot judgment procedure. At Brighton, the state parties had asked for this option to be investigated. This draft report concludes, however, that "CDDH is of the view that there would be no significant added value to designing and introducing a ‘representative application procedure’ in the current circumstances." It would offer no clear advantages / distinction compared to existing procedures, according to this report, which even suggests that no further action on this specific idea be taken at the intergovernmental level.

The webpage also includes an RSS feed on upcoming meetings and reports.

Court Videos Available in More Languages

The Court has made new translations of its instruction videos available on its website. Fifteen new language versions have been added to the existing ones. The general information video "The Convention belongs to you" about the rights in the ECHR is now online in no less than 38 languages. And the video on admissibility criteria now exists in 21 different languages. They can all be watched on the special Youtube channel of the European Court. Thus far, after the English and French versions, the Russian, Ukrainian and Turkish videos are the most watched.

Two High Profile Russian Cases Coming to Strasbourg

This week, it was announced that two high-profile Russian cases have been lodged in Strasbourg, both in reaction to policies and actions by the government of Putin. The first, as several major news outlets report, is that the three members of the Pussy Riot punk band, who were arrested after performing a "punk prayer" in one of Russia's most important churches, submitted an application complaining that the Russian Federation had violated their freedom of expression, fair trial rights, right to liberty and right to be treated humanely in detention. Although their lawyer did not expect that a Strasbourg decision or judgment would be delivered before their eventual release from prison, he indicated that it was important for purposes of general justice.

The second important case from Russia lodged this week was by a group of eleven Russian NGOs, mainly active in the field on human rights: Ecodefence, Golos, Citizens Watch, Civic Assistance Committee, the Committee against Torture, Mashr, International Memorial, Moscow Helsinki Group, Public Verdict, Memorial Human Rights Group and the Movement for Human Rights. They complain about the much-discussed and contested ‘Foreign Agent’ Law which was put in place in November last year and classifies NGOs receiving foreign funding and being 'politically active' as foreign agents. Such a classification entails many restrictions and regulations and is widely seen as making the work of human rights NGOs, often partly funded by money from outside Russia, much more difficult. This application directly complains about this law as being, amongst others contrary to the freedoms of association and assembly. This is the press release of the European Human Rights Advocacy Centre (EHRAC) whose team acts as some of the counsels for the application:

Leading Russian Human Rights NGOs launch challenge at European Court to ‘Foreign Agent’ Law Today, an application is being lodged with the European Court of Human Rights on behalf of eleven leading Russian human rights NGOs to contest the recently introduced ‘Foreign Agent’ Law. They allege that this Law violates their rights to freedom of association and expression (Articles 11 and 10 of the European Convention on Human Rights (ECHR)), and request that the European Court gives urgent priority to their case. The case is being brought by the Russian NGO ‘Memorial’ and the European Human Rights Advocacy Centre (EHRAC), based at Middlesex University.

The Law was passed in November 2012 and has established a new classification of NGOs in Russia, the ‘Foreign Agent’. Under this Law, if an NGO receives foreign funding and is engaged in ‘political activity’ then it must register as a ‘Foreign Agent’ and is then subject to significant reporting restrictions and regulations. Any materials or resources produced by the NGO must be labelled as having been produced by a ‘Foreign Agent’.

The case is brought on behalf of Ecodefence, Golos, Citizens Watch, Civic Assistance Committee, the Committee against Torture, Mashr, International Memorial, Moscow Helsinki Group, Public Verdict, Memorial Human Rights Group and the Movement for Human Rights. Significantly, it is widely felt that the organisation Golos (“Voice”), which conducts independent election monitoring, was a contributor to the recent surge in the protest movement in Russia, which in turn led to legislative restrictions including the Law on Foreign Agents. The NGOs argue that the Law unnecessarily and unjustifiably puts them at risk of serious sanctions, including criminal prosecutions of individuals and the possible suspension of their organisations.
The applicants also say that the term ‘Foreign Agent’ has very negative connotations in Russia due to its association with the word ‘spy’ in the Russian language, which will therefore affect their reputations and their ability to function effectively. The lack of a clear definition of ‘political activity’ in the Russian legislation is also contested as it is believed that it could lead to the arbitrary application of the law by the authorities.As well as impacting on the eleven NGOs named in this application, it is also argued that the ‘Foreign Agent’ Law will affect more than one thousand NGOs across Russia.

“This is a very repressive law which directly threatens the integrity and the activites of Russian NGOs which play an absolutely vital role in scrutinising and monitoring the State. We urge the Strasbourg Court to move quickly to strike it down.” Philip Leach, EHRAC.

Comments from the United Russia party include:

President Putin: “[..] they are allegedly our national NGOs but in substance working for foreign money plays the music ordered by a foreign state [..] We have to shield ourselves from that interference with our internal affairs”

Mikhail Starshinov (the co-author of the law, member of the State Duma, and delegate of the United Russia party): “some political technologies [..] allow the destruction of the constitutional order of states with the use of NGOs and similar structures”

The United Russia party: “those NGOs which are engaged in political activity and are paid from abroad must have the status of foreign agent so the public can see who implants ideas into their minds and who pays for their work”

Comments from International NGOs include:

Hugh Williamson, Director of the European and Central Asian program of Human Rights Watch: “This disingenuous claim by President Putin and his swift signing of the amendments, despite domestic and international criticism, show his lack of respect for Russia’s international human rights obligations [..] The new law seriously undermines free assembly in Russia.”

John Dalhuisen, Amnesty International’s Director for Europe and Central Asia: “This bill appears to have no other purpose than to set hurdles for many of the leading NGOs critical of the government and to make it even more difficult for them to operate in Russia. It should be repealed immediately”

Certainly a case to watch!

ECHR and EU after Lisbon

One of my colleagues here at Utrecht, Sybe de Vries (Jean Monnet Chair in EU Single Market Law and Fundamental Rights) has, together with Ulf Bernitz and Stephen Weatherill, edited a book entitled 'The Protection of Fundamental Rights in the EU After Lisbon' (Hart Publishing 2013). The book also goes into the interrelations between fundamental rights in the legal order of the European Union and the rights protected in the European Convention on Human Rights. This is the abstract:

The changes made by the Lisbon Treaty suggest that its entry into force in December 2009 marks a new stage in the shaping of the EU's commitment to the protection of fundamental rights. This book's concern is to provide an examination of the several (and interlocking) challenges which the Lisbon reforms present. The book will not only address the fresh and intriguing challenges for the EU as an entity committed to the protection and promotion of fundamental rights presented by developments 'post-Lisbon', but also a number of conundrums about the scope and method of protection of fundamental rights in the EU which existed 'pre-Lisbon' and which endure. The book consists of three parts. The first part is concerned with the safeguarding of fundamental rights in Europe's internal market. The second part of the book is entitled 'The Scope of Fundamental Rights in EU Law' and the chapters discuss the reach of fundamental rights and their horizontal dimension. The last part of this book deals with 'The Constitutional Dimension of Fundamental Rights' analysing the special relationship between the ECJ and the ECtHR and the issue of rights competition between the EU Charter on Fundamental Rights, the European Convention on Human Rights and national rights catalogues. [my emphasis, A.B.]

New Issue of the Human Rights Law Review

The latest issue of the Human Rights Law Review (Vol. 12, Issue 4, December 2012) is filled with articles about the ECHR and the European Court on Human Rights:

* Steven Greer and Luzius Wildhaber, 'Revisiting the Debate about ‘constitutionalising’ the European Court of Human Right'

* Marie-Bénédicte Dembour, 'Gaygusuz Revisited: The Limits of the European Court of Human Rights’ Equality Agenda'  

* Natasa Mavronicola,'What is an ‘absolute right’? Deciphering Absoluteness in the Context of Article 3 of the European Convention on Human Rights' 

 * Adélaïde Remiche, 'Yordanova and Others v Bulgaria: The Influence of the Social Right to Adequate Housing on the Interpretation of the Civil Right to Respect for One’s Home'.

New ECHR Readings

This week brings another batch of academic writings on the European Convention. First off, the Utrecht Law Review's most recent issue (Volume 9, Issue 1, January 2013) includes a special thematic section on 'EU and ECHR: Conflict or Harmony?'. Articles include (amongst others):

* Sybe de Vries, 'Editorial - EU and ECHR: Conflict or Harmony?'
* Suzanne D. Burri, 'Towards More Synergy in the Interpretation of the Prohibition of Sex Discrimination in European Law? A Comparison of Legal Contexts and some Case Law of the EU and the ECHR'
* Albertine Veldman, 'The Protection of the Fundamental Right to Strike within the Context of the European Internal Market: Implications of the Forthcoming Accession of the EU to the ECHR'
* Frans Pennings, 'Non-Discrimination on the Ground of Nationality in Social Security: What are the Consequences of the Accession of the EU to the ECHR?'

 The American University international law review (Vol. 27, no. 1, 2011/2012) features:

 * B. Weinstein, 'Reproductive choice in the hands of the state: the right to abortion under the European Convention on Human Rights in light of A, B & C v. Ireland', pp. 391-438.

Finally, the newest issue of the International and Comparative Law Quarterly includes an article on that same case:

* Fiona de Londras and Kanstantsin Dzehtsiarou, 'Grand Chamber of the European Court of Human Rights, A, B & C v. Ireland', pp. 250-262.

Eweida and Others Judgment Part II - The Religion Cases

As announced earlier, here is the second part of comments on the Eweida and others v the United Kingdom Judgment. This second guest post will focus on the two cases within the judgment which are most closely tied to freedom of religion. I am very happy to welcome this post by my former colleague Hana van Ooijen who defended her PhD prepared at SIM here at Utrecht University last year. Her book, Religious Symbols in Public Functions: Unveiling State Neutrality is a detailed and nuanced overview and analysis of the broader issues at stake. Thank you, Hana!

Two cross cases 

Hana van Ooijen

Introduction

If Britain were to be stereotyped in religious symbols debates, it could be called inclusive. A place where judges can wear turbans in court, where headscarf-wearing police officers can patrol the streets and where niqab bans are looked at with disdain. To dismiss this stereotype with a cliché: reality appears to be slightly more obstinate. And so it is that also against the United Kingdom complaints concerning religious symbols have made their way to the European Court of Human Rights. The judgement of 15 January 2013 in no less than four joined cases meant another occasion following the widely discussed 2011 Lautsi case to step into the Court's labyrinth of thought. In focusing on the two cross cases Eweida and Chaplin, this comment elaborates on three reasons why the cases can be considered remarkable. These reasons have to do with the type of symbol involved, the test applied by the Court and the different outcome in both cases.

Christian cross

To begin with, it is the first time that the Court addresses the question of an applicant wearing a cross. Thus far, the ECHR case law included quite a number of cases on headcoverings (i.e. the headscarf or items allegedly replacing the headscarf, cf. the multiple cases against France in 2008, e.g. Gamaleddyn) and turbans (e.g. Shingara Mann Singh v. France, also in 2008). In 2011, the previously mentioned Lautsi affair added a case involving a crucifix on the wall of a public school. It may be asked in the first place whether the specificity of the religious symbol at issue is of any relevance for the outcome. After all, states and courts should be wary of entering into theological debates, a point which is alluded to in the present judgement by some intervening parties (§ 76) and by Eweida herself (§ 64). While this is true, in previous cases such as in the Şahin and Dahlab cases, the Court has not shied away from including statements touching on such debates (e.g. in Dahlab: "[the headscarf] appears to be imposed by a precept which is laid down in the Koran and … is hard to square with gender equality …") In the Lautsi case, the Court appeared to take a step back from interpreting religious symbols in bypassing the Government's contentions on the character of the crucifix by qualifying the crucifix as a Christian symbol (Lautsi, Grand Chamber, § 66). In the present judgement, the Court pursues this line of reasoning by similarly accepting that the crosses worn by the applicants qualify as religious symbols under Article 9 (§ 89). In so doing, the Court also leaves aside the domestic judgments that have struggled with the religious status of the symbol (although this struggle should be seen from the non-discrimination perspective in which the question of particular disadvantage is at play, e.g. § 14-15). Having thus determined the symbol at issue to fall within the ambit of Article 9, the Court moves to assessing whether the domestic measure constituted an interference with Article 9. This assessment makes for a second reason why the judgement can be called remarkable and is discussed in the next section. Before this discussion, a brief observation can be made as to the significance of the symbol in question on the domestic level. In Britain, the disputes have sparked vehement national public debates on the position of Christians. In these debates, it has been suggested that Christians are being disadvantaged in comparison to other religious groups (the Equality and Human Rights Commission speaks of the 'Christian marginalisation narrative', Research Report 84, p. 112). This point can be derived from the cases as well. For instance, the facts point to the accommodation which British Airways provided for Muslims and Sikhs by allowing them to wear headcoverings (§ 11). Additionally, the contention can also be inferred from the number of interveners who represent the divergent positions in the debate (§ 76 ff.).

Proportionality test

The Court itself notes that it departs from previous case law (§ 83). Contrary to previous cases where professional duties appeared to be at odds with religious duties, the Court does not follow its 'particular regime' line of reasoning (while carrying several labels, this line of reasoning builds on two thoughts: that an applicant needs to accept that particular jobs or environments entail inherent limitations on his freedom of religion and that the ultimate safeguard of one's freedom of religion is the freedom to resign). Stated briefly, in earlier cases, the Court (and the Commission) established no interference to have taken place in such cases and thus rendered those cases outside the scope of Article 9. The downside of this line of case law was that it was not always transparent why a particular claim was deemed outside the scope of Article 9. Moreover, it significantly left leeway to the state to play the 'particular regime' card. It now seems as if the Court moves away from the particular regime approach towards an approach which puts more emphasis on a proportionality test. If this is true, this change is to be applauded, as is also done by the Strasbourg Observers. For future cases, it remains to be seen whether the Court actually intends to shift its approach. The Court might also apply a distinction between cases where applicants face a sanction as a result of exercising their religion and cases where they can guarantee their freedom of religion by resign (cf. § 83). Leaving aside this ambiguity, in the present cases the Court pays more attention to a proportionality test. Accordingly, it reiterates some factors such as the applicants' conduct, the extent to which the regulation has given rise to problems and the attitude of the employer in seeking a solution. One may wonder, though, whether these factors have actually contributed to the outcome. As is also discussed in the next section, it is not entirely clear how the factors have influenced the final outcome. Especially in Chaplin, the Court seems to leave aside these factors and to focus on whether the state has struck a fair balance between the interests involved. The interest of health and safety seems to trump any questions on for instance the facts that changing the uniform caused a problem to arise for the applicant and that it took another two years after the change of the uniform that the applicant was directly addressed.

Different outcome

The outcome in each case can be resumed simply by the findings of a violation in Eweida and not a violation in Chaplin. The particular factors involved are mentioned, but in the end, the one crucial difference between the two cases seems to lie in the ground for limitation. In the Eweida case, the main interest of British Airways to impose limitations in the uniform code is safeguarding the corporate image (which is remarkable in itself, as there was so little attention for the rights and freedoms of others, or perhaps even safety for that matter). In the Chaplin case, the state pursued the aims of health and safety (and it may be noted that not a word on neutrality is uttered). The individual applicant's interest in each case was to manifest her religion. This interest outweighs safeguarding a corporate image, but not guaranteeing health and safety. While this outcome seems to make perfect sense, it seems to neglect a little the other factors at play.

Another question concerns the sector of work in both cases. Eweida worked as a check-in staff member of British Airways, which nowadays can be called a private company. By contrast, Chaplin worked with the National Health Services, and can as such be considered a public sector employee. Accordingly, theoretically speaking, the duties of the state in both cases differed. Whereas the state can be said to incur the direct obligation to comply with Article 9 in the Chaplin case, it is bound through the positive obligation concept in the Eweida case. That said, the Court emphasises that in both cases, the state should strike a fair balance (§ 84). It is surprising that the upshot seems to be that the state incurs a heavier burden to comply with its obligations under the Convention regarding a private company than regarding its public services. This is compounded by the fact that the question in Eweida was not so much whether the company acted in accordance with the Convention by banning the cross. After all, British Airways had already modified its policies so as to include the cross in the uniform. The remaining point at issue concerned the refusal of the company to pay damages for the four months in which Eweida had not worked. Exactly regarding this point, the particular factors give reason to at least question whether British Airways had violated the Convention. The dress code did not raise any problems before. Accordingly, it can be asked whether it is unreasonable for a company to have at least a short period of time to adapt its policies to novel claims of accommodation, especially when the company offers an alternative position for that period.  By contrast, the Chaplin case concerned the principled question whether National Health Services could ban the cross in light of the Convention. While acknowledging the importance of health and safety, it can nonetheless be wondered why the Court does not tie in more closely the factors which it mentions earlier. Both parties seem to have made efforts to reach a reasonable compromise, but it can be questioned whether NHS sufficiently worked endeavoured to accommodate the applicant's claim.

Conclusion

Admittedly, it is easier to make critical remarks on the extensive judgement of the Court than to write this judgement. Some aspects of the judgement make way for richer lines of reasoning, such as the lack of theological interpretation of the cross, and the emphasis on a proportionality test. It will be interesting to see how particular factors can be tied more closely into the outcome of this test.

Opening Judicial Year Strasbourg

Today is the formal opening of the judicial year at the European court of Human Rights. At this occasion a seminar on “Implementing the European Convention on Human Rights in times of economic crisis” is held.Yesterday, the president of the Court, currently Dean Spielmann, held his annual press conference. The most important result of all the efficiency measures introduced by the Court, including the single-judge procedure made possible by Protocol 14, led to a remarkable result. For the first time in the Court's existence the number of pending cases is on the decrease, falling from 150,000 at the start of 2012 to 128,000 currently (16% decrease). Will the caseload crisis then finally be over? We can only hope so. The Court now estimates that the backlog of cases can be tamed in two or three years. This is the chart on the Court's website that illustrates this reversal of a very long trend:

A provisional version of the Court's annual report and an analysis of statistics (including information on the number of cases per country) can be found on the Court's homepage. Russia, Turkey, Romania, Ukraine and Bulgaria. Compared to the 'top-5' of last year, the difference is that Greece no longer features (now placed number 7 with 52 judgments in which one or more violations were found) and that Bulgaria has entered the top 5.

As a small and last point of note, in the Annual Report, the president of the Court kindly refers to the blogosphere:

In addition, over the past few years a certain number of blogs have appeared online concerning the Convention and the Court’s case-law. They shed new and often valuable light on the way in which our case-law is perceived by others, contributing very effectively to its dissemination. We read them with the greatest interest and I commend these initiatives.