Last week the Grand Chamber of the European Court of Human Rights, in Vallianatos and Others v Greece – a case in which the AIRE Centre was involved – held that the blanket exclusion of same-sex couples living in Greece from registering a ‘civil union’ – violated rights protected by Article 14 and Article 8 of the European Convention on Human Rights. Article 14 prohibits any difference in treatment between persons in comparable situations and where there is no objective and reasonable justification.
The complaint related to Greek law no. 3719/2008 (‘Reforms concerning family, children and society‘). This made provision for the first time in Greece for an official alternative to marriage. However such ‘civil unions’ were reserved to only different-sex couples, a fact made clear in the debate before the Hellenic Parliament, when the Minister of Justice at the time, declared:
“We mustn’t include same sex couples. We are indeed convinced that the needs and demands of the Hellenic society do not cross this line; as a legislator, the political party in power is accountable to the Greek people; we have our own beliefs and negotiations are over; I believe it is the way to go”.
The applicants complained that the Law had introduced a distinction, which breached both their right to respect for private life and the principle of prohibition of discrimination.
Applicability of Article 14 in conjunction with Article 8
The Court reiterated its general view that sexual and intimate relationships fall within the private life limb of Article 8 and this includes same-sex relationships. However, in determining the case it made a small but significant advancement in its jurisprudence.
Previously, the Court had accorded family life status to cohabiting same-sex couples. However, despite objections from the Greek Government, it has now extended this to cover same-sex couples that ‘for professional and social reasons’ do not cohabit.
The Court stated it was not concerned with whether there is ‘a general obligation’ to provide same-sex couples with a form of legal recognition in domestic law. In doing so it was able to dodge making a decision on whether the Convention imposes a positive obligation on a contracting state to provide same-sex partners with a legal recognition of their relationship. This would have been problematic, not least because the majority of contracting states do not provide such recognition. As such, the Court instead made clear that it was concerned only with the effects of a law already in existence.
In terms of Article 14 and a ‘comparable situation’, same-sex couples were just as capable as different-sex couples of entering into stable and committed relationship, which needed to be legally recognized and protected the Court said. This may seem blindingly obvious, but rather surprisingly, has not always been something recognized by the Court in previous rulings (see Manenc v France).
The Court also moved away from their traditional deference in areas which impinge on a Member State’s social and economic situation (known in legal parlance as ‘margin of appreciation’). A deference which has allowed Member States to confer what legal status they accord to alternatives to marriage, including to same-sex couples (Gas and Dubois v France and X and Others v Austria). In Vallianatos however the Court re-iterated in very clear terms that ‘[d]ifferences based solely on considerations of sexual orientation are unacceptable under the Convention’. In doing so they rejected a number of justifications offered by the Greek government as to why same-sex couples should be excluded; including the ‘hoary Tory’ refrain that differential treatment is somehow ok because it helps in ‘strengthening the institutions of marriage and the family in the traditional sense’.
Another Greek argument – that the law was pursuing a legitimate aim of protecting children born outside of marriage – was rejected, as one which did not require that same-sex couples be excluded. It was not ‘impossible’ in the Court’s view for legislation to be drafted which would protect children, whilst at the same time extending to same-sex couples the general possibility of entering into a civil union. The Greek government’s arguments on this point were fatally undermined by the fact that ‘civil union’ under the law was available to opposite-sex couples irrespective of whether they had children – they were just not open to same-sex couples.
Finally the Court made a general policy point and noted that ‘although there is no consensus among […] member States, a trend is currently emerging with regard to the introduction of forms of legal recognition of same-sex relationships’ and cited the existence of ‘seventeen member States [that] authorise some form of civil partnership for same-sex couples’.
Although this ‘trend’ was rather overstated by the Court (there are after all 47 member states in the Council of Europe), it was a welcome departure from its previous, rather conservative rulings. These have often placed ‘family’ within very traditional and heterosexual confines, or been based around a very functional approach to relationships, rather than it just one choice amongst many, as to how people establish and maintain a ‘family or private life’.
Are there any implications for the UK?
The Court seemed to suggest that when introducing legislation on alternative systems of registered partnership, Member States should ensure they are made available to all unmarried couples, and that Greece by excluding same-sex couples (and also Lithuania which has a similar exclusion), was out of step with this policy objective.
This could have domestic implications for the UK, given that whilst the Civil Partnership Act 2004 gives same-sex couples the right to have a ‘civil union’, opposite-sex couples are excluded from registering a civil partnership (and have no alternative to marriage). Indeed this seems to have been an explicit ambition of the 2004 Act.
Does the judgment signal the end of same sex discrimination?
The judgment is one of a long line that has considered the recognition accorded to same sex couples or the lack thereof.
In Kozak v Poland, the Court had previously found no justification for distinguishing between opposite-sex and same-sex de facto marital cohabitants in terms of tenancy rights. In Schalk & Kopf v Austria, the Court concluded that “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 protection accorded under the Convention seems now to have been extended yet further still.
However whilst the judgment goes some way to a realization of equal protection for the lesbian, gay, bisexual, and transgender and intersex community (LGBTI), what it does not do is to place any positive or general obligation/requirement on contracting states to introduce or give same-sex couples access to legal forms of partnership recognition. In fact it goes out of its way to avoid doing so.
The fact that there is still some way to go towards full and equal protection was also highlighted by the fact that – on the same day as the Vallianatos judgment – the Court of Justice of the European Union (CJEU) gave its judgment in X, Y and Z v Minister voor Immigratie, Integratie en Asiel. This was a case which arose from asylum requests having been lodged in the Netherlands by nationals of Senegal, Sierra Leone and Uganda. The three men claimed that they had a well-founded fear of persecution based on their – undisputed – same-sex sexual orientation – and the fact that sex between men is criminalised in their home countries. The CJEU ruling – whilst affirming that the prosecution and imprisonment of a person for consensual same-sex activity would constitute persecution – declined to hold that the ‘mere existence of such laws’ (and which may not have recently been applied in practice) would amount to “persecution” per se for the purposes of EU asylum law.
The decision seems to fly in the face of international human rights and refugee law. It also ignored arguments from groups such as Amnesty International, about how such laws allow state actors with the means to perpetrate human rights violations and contribute to an atmosphere of state-supported homophobia. Enabling harassment and abuse, and denying LGBTI individuals – or those perceived to be LGBTI – effective state protection to which they are entitled.