Friday, 27 May 2016

European Court of Human Rights communicates complaint about inability of same-sex couples to marry in Russia

The European Court of Human Rights has communicated the case of Fedotova and Shipitko v Russia, which concerns complaints by three same-sex couples about their inability to marry in the Russian Federation.

All three couples had declared their intention to marry and applied on several occasions to local departments of the Register Office to have their marriage registered. The Register Office examined their requests and dismissed them with reference to Article 1 of the Russian Family Code, which states that the regulation of family relationships is based on “the principle of a voluntary marital union between a man and a woman”. In other words, because the couples did not consist of “a man and a woman”, their marriage applications could not be processed. All of the applicants unsuccessfully challenged the Register Office’s decisions in the domestic courts.

The Court has communicated the following questions to the parties:
1.Has there been a violation of the applicants’ right to respect for their private and family life, contrary to Article 8 of the Convention? 
In particular, were the applicants able to have access to a specific legal framework capable of providing them with official recognition of their unions comparable to that guaranteed by the State to different-sex couples? If that is not the case, in what specific ways are the applicants disadvantaged by the lack of any legal recognition of their relationship?

Should the applicants be afforded a possibility to have their relationship recognised by law? If not, what are the reasons preventing such recognition? Was the issue of legal recognition of same-sex couples widely debated in society? Would legal recognition of same-sex unions in any form impose an excessive burden on the State? The Government are asked to support their submissions by authoritative studies and statistics, if applicable.

2. Have the applicants suffered discrimination in the enjoyment of their Convention rights on the ground of their sexual orientation, contrary to Article 14 of the Convention read in conjunction with Article 8 of the Convention, in respect of their inability to enter into any type of civil union recognised by the State?
Some issues arising from the communication

No Article 12

It is interesting to note that the Court has not communicated the case under Article 12 of the Convention (right to marry). This is striking given that the applicants' complaints concern their inability to marry. It is unclear whether the omission of Article 12 from the communication is the choice of the applicants or the Court. Certainly, Ms. Fedotova and Ms. Shipitko invoked Article 12 in the domestic courts in their appeal against the decision to refuse their application to marry. However, in the Court's communication it states:
The applicants in substance complained under Article 8 of the Convention alone and under Article 14 of the Convention taken in conjunction with Article 8 of the Convention that they had been discriminated against on the grounds of their sexual orientation because they had no means of securing a legal basis for their relationship as it was impossible for them to enter into marriage. They also had no other possibility to gain legal recognition for their relationship.
It is unclear, therefore, whether the Court has omitted Article 12 from the complaint when determining its "substance", or whether the applicants themselves decided not to raise an Article 12 point. If it was the Court's decision then I would see this as further evidence that the Court regards Article 12, for all practical purposes, as inapplicable to same-sex couples (see a previous post for a broader discussion of this).

Article 8

The questions raised under Article 8 focus on whether the applicants should be given access to a "legal framework" that would provide "official recognition" of their unions "comparable" to that given to opposite-sex couples. The Court appears, therefore, to be asking whether the Russian Federation should provide same-sex couples with access to some form of "civil partnership" rather than whether they should be given access to marriage. This may seem politically sensible, given the apparent hostility in Russia toward both homosexuality and the European Court of Human Rights. However, the substance of the applicants' complaints concerns the Russian authorities' refusal to register their marriage. It is open to question, therefore, whether the Court should seemingly exclude a direct question about marriage and focus solely on the issue of a "comparable" legal framework.

The case law 
most relevant to the questions raised under Article 8 can be found in the Court's judgment in Oliari and Others v Italy. In Oliari the Court held that the Italian government had "failed to fulfil their positive obligation to ensure that the applicants [same-sex couples] have available a specific legal framework providing for the recognition and protection of their same-sex unions" (§ 185). The crucial question arising from this judgment is whether the Court will impose this positive obligation on the Russian Federation. The answer is not straightforward because the judgment in Oliari was crafted in such a way, as Judges Mahoney, Tsotsoria and Vehabović pointed out, to "limit [the] finding of the existence of a positive obligation to Italy and to ground [this in] a combination of factors not necessarily found in other Contracting States". It remains to be seen whether, as those three judges pointed out, the "limitation of a positive obligation under the Convention to local conditions is conceptually possible". If such a limitation is deemed not to be possible, then the same positive obligation found in Oliari will be imposed on the Russian Federation. The result will be that the State is under an obligation to provide same-sex couples with access to a legal framework (not marriage) that gives legal recognition to their relationships. 

Article 14

The question regarding discrimination would appear to be central to this complaint. However, in Oliari the Court would not consider the applicants' complaints under Article 14 taken in conjunction with Article 8. Arguably, if the Court had found a violation of Article 14 in Oliari this would have more definitively established that Contracting States that do not provide same-sex couples with access to any legal recognition of their relationships are discriminating against them on the grounds of sexual orientation. Had this been the case, the current complaint against the Russian Federation would have almost certainly succeeded. However, because the Court avoided addressing the Article 14 complaints in Oliari, it remains to be seen whether it will consider the lack of legal recognition of same-sex relationships in the Russian Federation to constitute "discrimination" within the terms of the Convention.

General importance of the case

There is no question that should the Court eventually uphold the complaints in this case, that this would be a watershed moment for the Convention system. A judgment in favour of the applicants would no doubt be widely condemned in Russia and would have little chance of being executed (particularly in light of legal changes relating to the status of the Court's judgments). If the Court effectively required Russia to provide same-sex couples with access to civil unions then this would probably rank alongside the most contentious judgments issued by the Court, such as the "prisoner voting" judgment against the UK. However, the Court remains uniquely placed to deliver a judgment recognising that in Russia "same-sex couples are just as capable as different-sex couples of entering into stable, committed relationships, and that they are in a relevantly similar situation to a different-sex couple as regards their need for legal recognition and protection of their relationship" (Oliari, § 165). Leaving aside the issue of compliance, such a judgement would send the significant and important message to same-sex couples in the Russian Federation that legal protection of their intimate relationships is their human right.

Friday, 13 May 2016

PhD thesis: "Relational Subjects: Family relations, law and gender in the European Court of Human Rights"

I am very pleased to today be acting as the "opponent" of Linda Hart's PhD thesis "Relational Subjects: Family relations, law and gender in the European Court of Human Rights" at the University of Helsinki.

The thesis is now available online and here is the abstract:
This study is a sociological analysis of the establishment and recognition of family relations in the case law of the European Court of Human Rights. How are close personal relations between adult couples and children and their parents recognised in the case law of the European Convention on Human Rights (ECHR)? What kinds of combinations of biological, legal, social and gendered personal relations are regarded as family life in legal disputes between individual applicants and Member States of the Council of Europe? Following Nicola Lacey, the analysis develops a notion of relational subjects framed by perspectives from feminist legal theory, relational sociology and contemporary debates on the law and politics of family formation. It also offers a sociological reading of relevant ECHR case law. Relevant judgements from 1979-2014 act as primary data, supported by relevant inadmissibility decisions and reports from 1960 onwards (90 cases in total). 
In the data, a historical shift from emphasising status (married/unmarried, male/female) towards identity (sexual orientation, gender identity, genetic origins, genealogy) in recent case law may be identified. The notion of individual rights holders is examined from a relational perspective inspired by sociological and anthropological theory and gender studies in law, emphasising the importance of life-sustaining relations of care and dependency in the spirit of feminist relational (legal and political) theory that do not always follow preconceived structures of kinship recognition. Furthermore, it is enquired whether relations between legal subjects are more fruitfully viewed as transactional or transcendental from the point of view of two differing academic schools in the field of relational sociology, one among many other general theories on the constitution of society. 
It is argued that a process of divergence between alliance (marriage, civil unions, cohabitation) and filiation (legally recognised parent-child relations) has been intensified with the emergence of same-sex marriage and civil unions in the European legal arena in recent years. Politically and legally, alliance is simpler to transform into a gender-neutral legal relation than filiation. Both gender and physical sex, as social and biologico-legal dimensions of the dichotomy of masculine/feminine, provide critical perspectives to the establishment of relations of filiation. It is argued that from a human rights perspective, a gender-sensitive approach is required in relation to questions of corporeal maternity and paternity, as complex issues such as access to knowledge of one's genetic origins and the inalienability of the human body in processes of assisted reproduction crop up in many contexts of which ECHR case law is just one arena.

Thursday, 12 May 2016

European Court of Human Rights once again rejects a complaint by a gay asylum seeker

The European Court of Human Rights has declared the complaint in A.N. v France inadmissible. This continues the Court's established approach of rejecting complaints by gay men and lesbians about Council of Europe states that seek to return them to states outside of Europe that criminalise homosexual acts. 

The applicant, A.N., is a Senegalese citizen born in 1983 who claimed asylum in France after he fled Senegal because of persecution based on his (homo)sexual orientation. He provided the French domestic authorities with evidence that he had been the subject of violence (consisting of, inter alia, a medical certificate that attested to the presence of several scars on his body, and the account of two witnesses confirming that these had resulted from an assault because of his sexual orientation). 

When the French authorities rejected the applicant's asylum application - which the French government stated was based on unverifiable, contradictory and implausible claims - the applicant complained to the Court that if returned to Senegal he would be subjected to ill-treatment in violation of Article 3. Homosexual acts are illegal in Senegal. 

The International Commission of Jurists submitted a very strong third party intervention to the Court last June, urging the Court 
to find that the existence of laws criminalizing consensual same-sex sexual conduct discloses evidence of a real risk of Article 3 prohibited treatment, thus triggering non-refoulement obligations under that provision of the Convention. In the alternative, at the very least, the Court should find that there is a high presumption that such laws engender such risk and thereby impose the burden on the State to rebut that presumption by proving conclusively the absence of such risk.
The Court's response, in summary, was that, although homosexual acts are prohibited by criminal law in Senegal, this law is not systematically enforced and, furthermore, the applicant had not adduced sufficient credible evidence to show that he would be at risk of treatment contrary to Article 3 of the Convention if returned to Senegal. 

The Court therefore declared the application inadmissible (manifestly ill founded). 

A.N. v France can now be added to the list of cases - which I detailed here - in which a gay asylum seeker has failed to gain any protection under the European Convention on Human Rights.