Abstract
This chapter offers a general overview on the case-law of the Strasbourg Court concerning the rights of homosexuals and same-sex couples under the European Convention on Human Rights. It covers five main areas: freedom of sexual intercourse, definition of private life and family life in the context of homosexual relationships, patrimonial rights, parental rights and expulsion of aliens.
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Notes
- 1.
See the case of Christine Goodwin v. the United-Kingdom, n. 28957/95, judgment of 11th July 2002 (Grand Chamber). The judgment deals with an operated transsexual’s rights. For a quick overview of the main case-law on issues related to sexual life and orientation, see Leach (2005), p. 306, and van Dijk et al. (2006), p. 678.
- 2.
In the recent case of Schalk and Kopf v. Austria, n. 30141/04, judgment of 24th June 2010, which concerns same-sex marriage and is discussed at length in the chapter by Pustorino in this volume, for instance, the Court has felt the need to recall some principles first affirmed in Christine Goodwin.
- 3.
See, e.g., the judgments concerning investigations into the homosexuality of male and female members of the armed forces in the UK and their subsequent discharge on the sole ground of their sexual orientation: Smith and Grady v. the United-Kingdom, n. 33985/96 and 33986/96, and Lustig-Prean and Beckett v. the United-Kingdom, n. 31417/96 and 32377/96, judgments of 27th September 1999. In the literature, Mowbray (2001), p. 349.
- 4.
- 5.
As can be seen in the cases which will be discussed presently, the legal treatment of male and female homosexuality was not identical in the national legislations.
- 6.
N. 7525/76, judgment of 22nd October 1981. Comments in McLoughlin (1996).
- 7.
N. 10581/83, judgment of 26th October 1988. Along the same lines, see also the rather shorter judgment in the case of Modinos v. Cyprus, n. 15070/89, judgment of 22nd April 1993.
- 8.
The Commission, originally vested with the competence to rule on the admissibility of applications, and to issue an opinion on their merits, in view of the final decision to be taken by the Committee of Ministers of the Council of Europe (in what was known as a quasi-judicial procedure), or to refer the cases to the Court for adjudication, was abolished, as known, in 1999 by the amending Protocol No 11 to the Convention, which, inter alia, established the now existing permanent Court and granted direct access to it to any individual claiming to be a victim of a breach of the conventional rights.
- 9.
A critical summary of the main case-law on the subject can be found in van Dijk et al. (2006), p. 678.
- 10.
The case is quoted in the third decision discussed here (cf. note 1) as follows: No. 104/55, Yearbook 1, pp. 228–229; however, it cannot be found in the database of the Court.
- 11.
N. 5935/72, decision on admissibility of 30th September 1975.
- 12.
X v. the United Kingdom, n. 7215/75, decision on admissibility of 7th July 1977, report to the Committee of Ministers of 12th October 1978.
- 13.
Examples are given in the Court’s judgment. Buggery, consisting inter alia in sexual penetration per anum, could involve male as well as female individuals and could be perpetrated also by heterosexual couples; gross indecency, by contrast, only concerned male homosexuals.
- 14.
The relevant legislation was: the Offence against the Person Act, of 1861, and the Criminal Law Amendment Act, of 1885. An overview of the legislation in Northern Ireland and in the rest of the United-Kingdom, including subsequent reforms and attempted reforms is given in paras 14–28 of the judgment. The following paras 29–31 provide an outline of the law enforcement practice in Northern Ireland between 1972 and 1981.
- 15.
It should be noted, however, that the minimum age of consent was different for male homosexuals (21) and girls (16 or 17).
- 16.
Dudgeon, n. 7525/76, judgment of 22nd October 1981, para. 41.
- 17.
The question of the locus standi of the applicant had been addressed, already, with equally affirmative conclusions, by the former Commission, in the above-cited X v. the UK case (report of 12th October 1978).
- 18.
Dudgeon, para. 46.
- 19.
Ibidem, para. 47.
- 20.
Ibidem, para. 49.
- 21.
Ibidem, paras 56–57.
- 22.
Ibidem, para. 60.
- 23.
N. 25186/94, report of 1st July 1997.
- 24.
By a decision of 21st May 1996.
- 25.
Following X v. the UK, and prior to the case of Sutherland, the Commission had rejected some three similar (but by no means identical, as far as factual circumstances were concerned) applications, as being manifestly ill-founded: Johnson v. the United Kingdom, n. 10389/83, decision of 17th July 1986; Zukrigl vs Austria, n. 17279/90, decision of 13th May 1992; H.F. v. Austria, n. 22646/93, decision of 26th June 1995.
- 26.
The conclusion was adopted by a majority of 14 votes to 4. To the report are annexed one concurrent opinion (which focuses on the difference of treatment between male and female homosexuals) and three dissenting opinions. The minority members essentially questioned the accuracy of the assumption that there was a common standard among the majority of the member States; they stressed the importance of the margin of appreciation and the better ability of a national Parliament to determine what best suits the society it democratically represents.
- 27.
N. 9369/81, decision on admissibility of 3rd May 1983.
- 28.
See, e.g., C. and L.M. v. the United Kingdom, n. 14753/89, decision on admissibility of 9th October 1989; Kerkhoven and Hinker v. the Netherlands, n. 15666/89, decision on admissibility of 19th May 1992.
- 29.
See, e.g., S. v. the United Kingdom, n. 11716/85, decision on admissibility of 14th May 1986.
- 30.
Mata Estevez v. Spain, n. 56501/00, decision on admissibility of 10th May 2001: “As regards establishing whether the decision in question concerns the sphere of ‘family life’ within the meaning of Article 8 § 1 of the Convention, the Court reiterates that, according to the established case-law of the Convention institutions, long-term homosexual relationships between two men do not fall within the scope of the right to respect for family life protected by Article 8 of the Convention […]”.
- 31.
N. 40016/98, judgment of 24th July 2003.
- 32.
N. 37060/06, judgment of 28th September 2010.
- 33.
“The Court does not find it necessary to determine the notions of ‘private life’ or ‘family life’ because, in any event, the applicant’s complaint relates to the manner in which the alleged difference in treatment adversely affected the enjoyment of his right to respect for his home guaranteed under Article 8 of the Convention […]” (Karner v. Austria, para. 33).
- 34.
“[…] having regard to its conclusion that the case in any event falls within the ambit of Article 1 of Protocol No. 1 to which the Court considers that it most naturally belongs, the Court does not find it necessary to decide whether the facts of the case, which are virtually contemporaneous with those in the Mata Estevez case itself, also fall within the ambit of Article 8 of the Convention in its family life aspect. Nor does it find it necessary to decide whether the case falls within the ambit of that Article in its private life aspect” (J.M. v. the United Kingdom, para. 50). It is worth noting that the judgment fell on 28th September 2010, 3 months after the Schalk and Kopf judgment which had just given a sharp turn to the previous case-law.
- 35.
Schalk and Kopf, paras 90–95, where the Court, inter alia, finds that I would be “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”. This finding was reiterated, shortly afterwards, in the case of P.B. and J.S. v. Austria, n. 18984/02, judgment of 22nd July 2010, and is now to be taken as a well-established principle. On this issue, see Scherpe (2013).
- 36.
Contra, Levinet, in Sudre et al. (2009) p. 567; it is however disputable whether the example given by the A. purports his opinion.
- 37.
See, e.g., Üner v. the Netherlands, n. 46410/99, judgment of 18th October 2006 (Grand Chamber). For further references, Gouttenoire, in Sudre et al. ( 2009), pp. 532–533.
- 38.
For an example of the role that the acknowledgment of “family life” between same-sex partners (and their relatives) may play in the Court’s approach, see X. v. Austria, para. 127. The judgment will be discussed below, in this chapter.
- 39.
According to a well-established Strasbourg case-law, a de facto marital life may constitute a family for the purposes of Article 8 (see, among others, Johnston v. Ireland, n. 9697/82, judgment of 18th December 1986, Keegan v. Ireland, n. 16969/90, judgment of 26th May 1994); but in all cases adjudicated up to date the couples had given birth to children, and the case-law offered no example of “family life” protection actually afforded to a childless de facto couple.
- 40.
S. v. the United Kingdom, n. 11716/85, decision of 14th May 1986. The applicant also complained about unlawful interference with her rights under Art. 1 of Protocol n. 1, but the Commission quite reasonably found that she had no contractual right over the house in question, which could therefore hardly be considered as a “possession” within the meaning of that Art. Finally, she also maintained that no effective remedies were available under domestic law, but the contention was found to be manifestly contradicted by the very fact that she had been able to bring appeal proceedings against the eviction order.
- 41.
Ibidem, para. 4.
- 42.
Ibidem, para. 4, in fine.
- 43.
Ibidem, para. 7.
- 44.
N. 28318/95, decision of 15th May 1996.
- 45.
Karner v. Austria. See also Kozak v. Poland, n. 13102/02, judgment of 2nd March 2010.
- 46.
Protocol N. 11 entered into force on 1st November 1998.
- 47.
Karner v. Austria, para. 37.
- 48.
Karner v. Austria, paras 40–41.
- 49.
Notwithstanding the crucial role lent (perhaps disputably) by the Court to the State authorities, which triggered the applicability of Art. 1 of Protocol No. 1, this is also true for the J.M. case, which concerned the obligation of an absent parent to contribute to the children’s upbringing, and the corresponding rights of the children themselves (to obtain maintenance from their parents) and of the other parent (to share with the applicant the corresponding financial burden).
- 50.
N. 4479/06, decision on admissibility of 4th November 2008.
- 51.
N. 13378/05, judgment of 28th April 2008.
- 52.
Shackell v. the United Kingdom, n. 45851/99, decision on admissibility of 27th April 2000, with further references to the Commission’s case-law.
- 53.
Ibidem, paras 62–63.
- 54.
In Shackell, the complaint, analogous to that of Mr. Courten, concerned the refusal to grant widow’s benefits to an unmarried lady whose late (male) companion had died after 17 years of common life more uxorio. No question was raised in relation to alternative forms of “registration” of couples and the applicant only claimed to be discriminated vis-à-vis a widow. The claim was dismissed on the grounds that “marriage remains an institution that is widely accepted as conferring a particular status on those who enter it” and that “the promotion of marriage, by way of limited benefits for surviving spouses, cannot be said to exceed the margin of appreciation afforded to the respondent Government”.
- 55.
N. 19010/07, judgment of 19th February 2013 (Grand Chamber).
- 56.
It should be noted that, in Austrian law, registered partnership is open to same-sex partners only.
- 57.
Fretté v. France, n. 36515/97, judgment of 26th February 2002.
- 58.
E.B. v. France, n. 43546/02, judgment of 22nd January 2008 (Grand Chamber).
- 59.
Gas and Dubois v. France, n. 25951/07, judgment of 15th March 2012.
- 60.
Extensive reference is made, in these judgments, to an older precedent, Salgueiro da Silva Mouta v. Portugal, n. 33290/96, judgment of 21st December 1999. The facts of that case, however, were significantly different, because they concerned the refusal, by the Portuguese authorities, to grant custody of a child to its biological father, who was separated from the mother, on the sole ground of his homosexuality.
- 61.
In French law, individuals and couples who plan to adopt a child must, as a general rule (and save some exceptions), undergo an administrative enquiry aimed at verifying their suitability (psychological, emotional, economical, etc.) as prospective adoptive parents. The positive outcome of this enquiry is a prerequisite for subsequently applying for adoption of a specific child. The administrative decision on the preliminary authorization can be challenged before the administrative Courts.
- 62.
Fretté v. France, paras 32–33.
- 63.
Ibidem, para. 42, in fine: “[…] the national authorities […] were legitimately and reasonably entitled to consider that the right to be able to adopt on which the applicant relied under Article 343-1 of the Civil Code was limited by the interests of children eligible for adoption, notwithstanding the applicant’s legitimate aspirations and without calling his personal choices into question. If account is taken of the broad margin of appreciation to be left to States in this area and the need to protect children’s best interests to achieve the desired balance, the refusal to authorise adoption did not infringe the principle of proportionality”.
- 64.
As was rightly pointed out by Judge Costa, joined by Judges Türmen, Ugrekhelidze and Jočienė, in the dissenting opinion appended to the judgment, despite the unconvincing efforts made by the Court to distinguish E.B. from Fretté, the relevant factors were substantially similar in both cases, and the judgment of 2008 is in fact, as far as the merits are concerned, an overruling of the previous case-law. It might be added that, insofar as some factual differences between the two cases actually did exist, the majority of these should have weighed in favor of confirming, rather than overturning, the conclusions reached in Fretté (para. 71). At any rate, it is significant that the Grand Chamber itself later acknowledged that E.B. had actually overturned Fretté: see X. v. Austria, para. 103.
- 65.
E.B. v. France, paras 41–46.
- 66.
Ibidem, paras 47–48.
- 67.
Ibidem, para. 49. A conclusion, indeed, on which, just a few lines before, the Court had deemed useless to dwell. But the main flaw in the reasoning lies on the use that the Court makes of its case-law on the applicability of Art. 14. The undisputable fact that French law treats equally couples and single persons as regards the possibility to adopt children does not entail, in itself, any legal definition of that “possibility”: is it a right or a mere privilege? Admittedly, no right to adopt is provided either by the Convention or by the national law: the Grand Chamber itself acknowledges this in the judgment. It follows that none of the alternative preconditions for applying Art. 14 is met.
- 68.
Ibidem, para. 72. Other reasons given by the experts and/or relied on by the authorities (such as the psychologically dubious motivations of the applicant) are completely overlooked by the judgment.
- 69.
Ibidem, para. 73.
- 70.
Ibidem, para. 75.
- 71.
Ibidem, para. 76.
- 72.
Ibidem, para. 78.
- 73.
Ibidem, para. 80. Judges Loucaides and Mularoni, in their dissenting opinions, criticized the “contamination theory” followed by the majority. They pointed out that, at least in French administrative law (but one would say that this is a general principle that stems from sheer logic) it is enough for one reason given by an authority to be legal and well-founded, in order to have the decision stand, notwithstanding any concurrent additional reason that might, instead, be wrong or unlawful.
- 74.
Ibidem, para. 82.
- 75.
See the findings of the domestic Courts as quoted and translated in ibidem, para. 25.
- 76.
E.B. v. France, paras 88–89. It should be noted that the notion of ‘lifestyle’ is much broader than that of sexual orientation and encompasses, for instance, the attitude of ‘rejection’ of men (which is not an inescapable consequence of feminine homosexuality and goes much further than the mere desire not to have sex with men), or the choice to live in a stable relationship (whether homosexual or not) without considering oneself as part of a couple (an attitude which might mean, for instance, a sexual promiscuity which might well be deemed unsuitable for the growth of a child also among heterosexuals).
- 77.
In French law, there are two types of adoption: “full adoption” and “simple adoption”. Full adoption replaces entirely the relationship between the child (who must be still minor of age) and the family of origin, while “simple adoption” (which can also concern adult children) only creates an additional legal tie, without severing the original one. Nevertheless, if the adoptee is a minor, “simple adoption” results in removing all rights and duties associated with parental responsibility from the biological parent and vesting them in the adoptive one. The sole exception to this rule is provided by Art. 365 of the French Civil Code, which allows joint parental responsibility and, if the biological parent agrees, joint exercise of such responsibility, only if the adoptive parent is the spouse of the biological one.
- 78.
In Gas and Dubois v. France, para. 19, Art. 365 of the French Civil Code is translated as follows: “All rights associated with parental responsibility shall be vested in the adoptive parent alone, including the right to consent to the marriage of the adoptee, unless the adoptive parent is married to the adoptee’s mother or father. In this case, the adoptive parent and his or her spouse shall have joint parental responsibility, but the spouse shall continue to exercise it alone unless the couple make a joint declaration before the senior registrar of the tribunal de grande instance to the effect that parental responsibility is to be exercised jointly. […]”.
- 79.
Ibidem, paras 68–69. This finding appears to be confirmed by the judgment in Emonet v. Switzerland (n. 39051/03, judgment of 13th December 2007), where an unmarried heterosexual couple and the adult daughter of the woman complained about the automatic severing of the legal tie between the mother and the daughter as a consequence of the latter’s adoption by the mother’s partner.
- 80.
X v. Austria, para. 114: “Austrian law allows second-parent adoption by an unmarried different-sex couple. In general terms, individuals may adopt under Article 179 of the Civil Code, and nothing in Article 182(2) of the Civil Code, which regulates the effects of adoption, prevents one partner in an unmarried heterosexual couple from adopting the other partner’s child without severing the ties between that partner and the child”.
- 81.
Ibidem, para. 142: “The Court would repeat that Article 182(2) of the Civil Code contains an absolute, albeit implicit, prohibition on second-parent adoption for same-sex couples”.
- 82.
X and Y v. the United Kingdom, n. 9369/81, decision of 3rd May 1983; W.J. and D.P. v. the United Kingdom, n. 12513/86, decision of 13th July 1987; C. and L. M. v. the United Kingdom, n. 14753/89, decision of 9th October 1989.
- 83.
The decision is published in DR 32, p. 220; extracts can be found in .pdf format on the Court’s website.
- 84.
See W.J. and D.P., para. 5. In fact, this conclusion was already implicit in the finding that “the absence in United Kingdom Immigration Rules of settlement rights for non-nationals in respect of their stable, private relationships, other than family relationships, does not, of itself, disclose any appearance of a violation of Article 8 of the Convention” (para. 4).
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Crisafulli, F. (2014). Same-Sex Couples’ Rights (Other than the Right to Marry) Before the ECtHR. In: Gallo, D., Paladini, L., Pustorino, P. (eds) Same-Sex Couples before National, Supranational and International Jurisdictions. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-35434-2_18
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