Yesterday, the Court's Grand Chamber issued its judgment in Vallianatos and Others v Greece, an important case about sexual orientation discrimination. I am happy to feature a guest post here by Paul Johnson of the University of York:
Vallianatos
and Others v Greece
Guest post by Paul Johnson
Yesterday (7 November 2013) the Grand Chamber of the European Court of
Human Rights held by 16-1 that the blanket exclusion of same-sex couples living
in Greece from registering a ‘civil union’ – a legal form of partnership
available to opposite-sex couples – violates rights protected by Article 14
taken in conjunction with Article 8 of the European Convention on Human Rights.
Background
The case originated in
two applications against the Hellenic Republic. The first application was made
by two Greek nationals, Mr Grigoris Vallianatos and Mr Nikolaos Mylonas, and
the second by six anonymous Greek nationals and the association ‘Synthessi –
Information, Awareness‑raising and Research’.
The applications were
originally allocated to the First Section of the Court but on 11 September 2012
a Chamber of the First Section relinquished jurisdiction in favour of the Grand
Chamber. A hearing took place on 16 January 2013.
Facts
Mr Vallianatos and Mr
Mylonas live together as a couple in Athens. The other anonymous applicants
comprise two same-sex couples who live together and a further same-sex couple
who do not cohabitate. ‘Synthessi – Information, Awareness‑raising and Research’ is
a not‑for-profit association which
provides ‘psychological and moral support to gays and lesbians’.
The applicants’
complaint relates to the law ‘Reforms concerning the family, children and
society’ (Law no. 3719/2008) which entered into force on 26 November 2008. This
law made provision in Greece for an official form of partnership, known as
‘civil unions’ (σύμφωνο συμβίωσης), which is distinct to marriage.
Section 1 of Law no.
3719/2008 states:
‘A
contract between two different-sex adults governing their life as a couple (“civil
union”) shall be entered into by means of a notarised instrument in the
presence of the parties. The contract shall be valid from the date on which a
copy of the notarised instrument is lodged with the civil registrar for the
couple’s place of residence. It shall be recorded in a special civil register.’
A civil union can therefore
only be entered into by two different-sex adults.
The applicants
complained that the fact that civil unions are available only to different-sex
couples violated their right to respect for their private and family life (under
Article 8) and amounted to unjustified discrimination between different-sex and
same-sex couples (under Article 14).
The applicants also
complained (under Article 13) that no effective remedy was available in
domestic law enabling them to assert before the domestic courts their
complaints concerning the discriminatory nature of civil unions.
Admissibility
The Greek Government
argued that the complaint was inadmissible on two grounds. First, none of the
applicants could be considered as victims (according to Article 34 of the
Convention) since they did not suffer ‘direct and immediate adverse
consequences as a result of their inability to enter into a civil union’.
Second, the applicants had not exhausted the domestic remedies (as required by
Article 35(1) of the Convention) available to them.
In respect of victim
status, the Court agreed that the legal organization ‘Synthessi–Information,
Awareness‑raising and Research’ could not
be considered as a direct or indirect ‘victim’ within the meaning of Article 34
of the Convention and therefore dismissed its complaint. This is important
insofar as it reiterates the established position taken by the Court that it will
not necessarily accord victim status to organizations campaigning on behalf of
those suffering sexual orientation (and other forms of) discrimination. In
contracting states where individual applicants fear making complaints to the
Court and who would therefore seek the protection of organizations to make
complaints on their behalf, this is always a problematic and limiting aspect of
the Convention. In respect of the other applicants – the same-sex couples – the
Court accorded them victim status under Article 34 on the basis that they are ‘directly
concerned by the situation and have a legitimate personal interest in seeing it
brought to an end’.
In respect of the
exhaustion of domestic remedies, the Court concluded that the applicants had no
effective domestic remedy in practice and in law available to them. The Court
stated that the Government had not produced any examples of past court rulings
capable of demonstrating convincingly that the applicants could have sought a
domestic legal remedy for their complaints.
Accordingly, the Court
deemed admissible the complaints brought by the same-sex couples.
Merits
Applicability of
Article 14 in conjunction with Article 8
In determining the
applicability of Article 8 to the present case the Court invoked its settled
view that sexual and intimate relationships fall within the private life limb
of Article 8. It also stated, drawing on its more recent jurisprudence, that
same-sex relationships fall within the ‘family life’ limb of Article 8. However,
in determining that all of the relationships of the applicants fell within the
ambit of family life the Court made a small but significant advancement in its
jurisprudence. Previously, in its Article 8 jurisprudence relating to same-sex
couples, the Court has accorded family life status to cohabiting couples (see: Schalk
and Kopf v Austria; P.B.
and J.S. v Austria). However, despite an objection from the Greek Government,
the Court has now extended family life to cover same-sex couples that ‘for professional
and social reasons’ do not cohabit. This is a small but significant
development. In light of this, the Court determined that Article 14 was also
applicable because, in compliance with its settled jurisprudence, Article 14 is
relevant when the facts of a complaint fall within the ambit of another
Convention right.
Compliance with
Article 14 taken in conjunction with Article 8
It is unsurprising to
find that the first line of the Court’s consideration of the compliance of the
impugned law with the Convention limits the scope of its review. The Court stated
that it is not concerned with whether there is ‘a general obligation’ to
provide same-sex couples with a form of legal recognition in domestic law. This
is unsurprising because it allows the Court to avoid having to provide any view
on whether the Convention imposes a positive obligation on a contracting state
to provide same-sex partners with legal recognition of their relationship.
Given that the majority of contracting states do not provide such recognition,
the Court was careful to demonstrate that it was concerned only with the
effects of a law already in existence.
In approaching the
question of whether the difference in treatment created by the civil union law
amounted to discrimination under the Convention the Court invoked its common
framework for considering Article 14 complaints. This requires that any
difference in treatment complained of be between persons in comparable
situations and that it have no objective and reasonable justification.
The ‘comparable
situation’ requirement has often resulted in complaints about sexual
orientation discrimination failing in the Court (for a recent example, see: Manenc
v France).
However, the Court glossed over this requirement fairly quickly be stating that
‘same-sex couples are just as capable as different-sex couples of entering into
stable committed relationships’ and are ‘in a comparable situation to
different-sex couples as regards their need for legal recognition and protection
of their relationship’. Interestingly, the authority for that view is Schalk
and Kopf v Austria in which the Court found no violation of Article 14
taken in conjunction with Article 8 in respect of a case that involved a
complaint about the absence of any legal recognition for same-sex couples. It
is somewhat ironic, therefore, that one of the Court’s most important recent
judgments in respect of sexual orientation – which established that there is no
positive obligation for contracting states to provide same-sex couples with
partnership recognition – should be used to establish analogous situation in
this way.
In respect of the
‘objective and reasonable’ test the Court cited from its previous jurisprudence
to state that ‘[d]ifferences based solely on considerations of sexual
orientation are unacceptable under the Convention’. This is welcome because the
Court does not always reiterate its previous jurisprudence in these terms. For
example, in its recent consideration of same-sex marriage the Court stated that
whilst ‘differences based on sexual orientation require particularly serious
reasons by way of justification’, ‘a wide margin is usually allowed to the
State under the Convention when it comes to general measures of economic or
social strategy’ (Schalk
and Kopf v Austria). No mention of the margin available in respect of
‘social strategy’ was made by the Court in the present case. As I have argued
elsewhere, the Court should standardize its approach and always assert the
stronger Article 14 line that is established in its jurisprudence and used in
the present case.
In respect of determining
whether the Greek law met the ‘objective and reasonable’ test – that is,
whether there was a reasonable relationship of proportionality between the law
and the aims it sought to realize – the Court focused on the defence advanced
by the Government for excluding same-sex couples from registering a civil
union. The first reason given by the Government was that the rights and
obligations created by civil unions (in terms of property status, the financial
relations within each couple and their inheritance rights) could be accessed by
same-sex couples through the formulation of a legal contract. The second reason
the Government gave was that civil unions were designed to achieve several
goals (such as protecting children born outside marriage, protecting
single-parent families, responding to the wishes of parents to raise their
children without being obliged to marry) that ultimately related to ‘strengthening
the institutions of marriage and the family in the traditional sense’.
The Court rejected the
first reason given by the Government by stating that entering into a civil
union had an ‘intrinsic value for the applicants’ that is ‘irrespective of the
legal effects, however narrow or extensive, that they would produce’. Therefore,
whilst the Court recognized that the exclusion of same-sex couples from civil
unions created no real legal
distinction, it acknowledged the importance of the social status that it
denied. The Court stated that ‘extending civil unions to same-sex couples would
allow [them] to regulate issues concerning property, maintenance and
inheritance not as private individuals entering into contracts under the
ordinary law but on the basis of the legal rules governing civil unions, thus
having their relationship officially recognised by the State’. The Court can
therefore be seen to legitimize the importance of the symbolic recognition of
same-sex partnerships by the state.
In relation to the
Government’s second defence, the Court reiterated its settled view that the ‘protection
of the family in the traditional sense is, in principle, a weighty and
legitimate reason which might justify a difference in treatment’ and added that
‘[it] goes without saying that the protection of the interests of the child is
also a legitimate aim’. In respect of the ‘traditional family’, as I have
argued elsewhere, the Court could adopt a more critical view of ‘the family’
instead of reiterating heteronormative claims about ‘tradition’. The Court has
repeatedly replayed the view that the family is traditionally a heterosexual
institution without paying any attention to the counter-view that, throughout
history, same-sex couples and their children have formed autonomous social
units. Such units, although not often previously accorded the social status of
‘family’, are not recent inventions. By constantly attributing the status of
‘traditional’ to the heterosexual family, the Court reiterates a social norm
against which other family forms are compared and against which Convention rights
are adjudicated. In this case, however, the Court did add, relying on its ‘living
instrument’ doctrine, that a state’s choice of means to protect the traditional
family must ‘necessarily take into account developments in society and changes
in the perception of social and civil-status issues and relationships,
including the fact that there is not just one way or one choice when it comes
to leading one’s family or private life’. It also reiterated its settled view
that a difference in treatment based on sexual orientation must not simply be
‘suitable’ in achieving the aim of protecting the traditional family but must
be ‘necessary’.
In considering whether
excluding same-sex couples from civil unions was necessary, the Court focused
on the Government’s claims that the law was proportionate in meeting the aim of
protecting children (in respect of protecting children born outside marriage
and protecting single-parent families). The Court questioned the relevance of
these aims but stated that, even if those objectives were the intention of the
civil union law, ‘the fact remains that [the law] excluded same-sex couples
while allowing different-sex couples, whether or not they had children, to
regulate numerous aspects of their relationship’. The fact that the ‘Government’s
arguments focus on the situation of different-sex couples with children,
without justifying the difference in treatment arising out of the legislation
in question between same-sex and different-sex couples who are not parents’ was
ultimately fatal to the Government’s defence. It meant that the Government’s argument
– that the law was designed to sustain the ‘traditional family’ in order to
protect children – was weakened because civil unions are available to
opposite-sex couples irrespective of whether they have children. The Court
furthermore stated that even if the law was pursuing the legitimate aim of
protecting children born outside of marriage it was not necessary to exclude
same-sex couples from its scope. ‘It would not have been impossible’, the Court
stated, ‘for the legislature to include some provisions dealing specifically
with children born outside marriage, while at the same time extending to
same-sex couples the general possibility of entering into a civil union’.
An interesting feature
of the Court’s consideration of the necessity of excluding same-sex couples
from civil unions is its statement that ‘same-sex couples […] have a particular
interest in entering into a civil union since it would afford them, unlike
different-sex couples, the sole basis in Greek law on which to have their
relationship legally recognised’. Although this is a welcome statement – because
it gives credence to the fact that many (perhaps most) same-sex couples want
the opportunity to gain legal recognition for their partnerships – I am not
convinced it is wholly relevant to a consideration of proportionality. In
considering whether the measure taken (the civil union law) was necessary to
meet the stated aim, the interest of same-sex couples does not seem of central
relevance. If the desire of same-sex couples to gain relationship recognition is
key to a consideration of the proportionality of laws that deny it to them,
then the Court might like to revisit its Article 14 decision in Schalk
and Kopf v Austria and, more generally, consider its position on
same-sex marriage.
A further interesting
feature of the Court’s review is its discussion of European consensus on
partnership rights. The Court 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’. In light of this, the Court stated that ‘the trend emerging
in […] member States is clear: of the nineteen States which authorise some form
of registered partnership other than marriage, Lithuania and Greece are the
only ones to reserve it exclusively to different-sex couples’. The Court,
therefore, observes that Lithuania and Greece are out-of-step with the other
seventeen states that have an alternative system to marriage for recognizing
relationships and make this available to same-sex couples. However, as if to
further justify the relevance of this ‘clear trend’ to its judgment, the Court
states:
‘In other
words, with two exceptions, Council of Europe member States, when they opt to
enact legislation introducing a new system of registered partnership as an
alternative to marriage for unmarried couples, include same-sex couples in its
scope’.
This statement, as I
read it, is factually problematic because some member states among the seventeen
said to constitute the ‘clear trend’ (that is the states, excluding Greece and
Lithuania, that have civil partnership legislation that extends to same-sex
couples) did not enact civil partnership legislation as ‘an alternative to
marriage for unmarried couples’. In the United Kingdom, for example, because
opposite-sex couples are excluded from registering a civil partnership (and
have no alternative to marriage) the Civil Partnership Act 2004 cannot be
described as ‘a new system of registered partnership as an alternative to
marriage for unmarried couples’ that was designed to ‘include same-sex couples
in its scope’. The Court seems to suggest that there is a ‘trend’ in Europe for
introducing legislation to make available to all unmarried couples an alternative system of registered
partnership and that Greece and Lithuania are out of step with this. But the
trend is not as simple as this as not all contracting states that enacted civil
partnership legislation made it available to all married couples (as in the
United Kingdom) and, therefore, those states are not pursuing the objective implied
by the Court. In the case of the United Kingdom, for example, the ambition of
the Civil Partnership Act 2004 was not to offer ‘unmarried couples’ an
alternative system to marriage but to offer same-sex couples a system of
partnership registration that was not marriage. In addition to this, opponents
of same-sex partnership rights will point out that Greece is not out-of-step in
withholding partnership rights to same-sex couples and, on the contrary, is in
line with the majority of other contracting states. Therefore, the Court’s
consensus analysis as a basis for supporting its judgment bears (as is often
the case) some additional scrutiny. This is especially so since the consensus
argument of the majority is invoked by Judges Casadevall, Ziemele, Jočienė and
Sicilianos in their joint concurring opinion to justify their decision in this
case as opposed to their dissenting position taken in X and Others v. Austria.
A
good judgment?
Clearly, for those
interested in enhancing sexual orientation legal equality, this is a positive
judgment. In upholding the applicants’ complaints the Court has established the
foundation for a change in Greek law that will ultimately result in some legal
recognition for same-sex couples (the exact terms of the recognition will be
negotiated with the Committee of Ministers during the execution of the
judgment). The judgment also means that a similar-facts complaint from a
Lithuanian same-sex couple will almost certainly be successful. For same-sex
couples in 2 of the 47 contracting states, this is therefore good news.
But the judgment
should also be seen as limited. In typical Strasbourg fashion, it offers the
most conservative and limited step forward in terms of same-sex partnership
rights. The judgment cannot be read as introducing any positive obligation for
contracting states to give same-sex couples access to legal forms of partnership
recognition. In dealing only with discrimination created by the introduction of
a civil partnership law excluding same-sex couples, the judgment not only
avoids dealing with the lack of same-sex partnership rights in contracting
states generally but also could, unintentionally, sustain legal inequalities.
The contracting states that do not grant same-sex couples partnership rights –
the majority of states in the Council of Europe – now know that if they
introduce a legal alternative to marriage for different-sex couples they cannot
exclude same-sex couples from it. Such states therefore know to ‘think twice’
about the consequences of making a legal alternative to marriage available.
Ultimately, then, this
judgment represents another small step towards realizing full and equal
protection for gay men and lesbians under the Convention.