European courts issued three significant decisions affecting the rights of LGBT people in Europe on November 7, 2013. In Minister for Immigration and Asylum v. X, Y & Z (Joined Cases C-199/12 to C-201/12), the European Court of Justice in Luxembourg, which is the highest court on questions of European Union law, ruled favorably on the right of lesbian and gay people to seek asylum in Europe based on fear of persecution of gay people in their home countries. In Vallianatos v. Greece (Applications Nos. 29381/09 and 32684/09), a Grand Chamber of the European Court of Human Rights in Strasbourg, which has the final word on interpretations of the European Convention on Human Rights, ruled that Greece had violated the Convention by adopting a civil union law that excluded same-sex couples. In E.B. v. Austria, Applications Nos. 31913/07, 37357/07, 48098/07, 48777/07 and 48779/07, a section of the Human Rights Court preliminarily ruled that Austria had violated the Convention by refusing to delete records of criminal convictions of men who had been charged with engaging in sex with teenage boys under a law that had subsequently been declared invalid and replaced with a new law adjusting the age of consent and circumstances governing such acts.
The case from the European Court of Justice was construing, in part, a Geneva Convention on refugees to which the United States is also a party, as are many other countries outside of Europe. The Dutch government had, somewhat surprisingly in light of the status achieved by gay people under Dutch law, rejected asylum claims from gay people from Sierra Leone, Uganda and Senegal, all African nations in which homosexual acts carry significant penal sanctions and there is pervasive social disapproval of homosexuality. Internal appeals resulted in a request from the Dutch appellate courts for a ruling by the European Court of Justice on the circumstances under which gay people from outside of Europe can seek refugee status in Europe under the Geneva Convention and European laws.
The Court’s opinion embraced ideas that will be familiar to those acquainted with the developing case law on these questions in the United States. As a threshold matter, the Court concluded that gay people “must be regarded as forming a particular social group,” a necessary finding in order to apply the refugee protections. If members of a particular group are subject to persecution because of such membership in a particular country, they may be entitled to a grant of asylum by a country that is bound by the Geneva Conventions and relevant European law. The fact that homosexual acts are a crime is not dispositive of this question, but “a term of imprisonment which sanctions homosexual acts and which is actually applied in the country of origin which adopted such legislation must be regarded as being a punishment which is disproportionate or discriminatory and thus constitutes an act of persecution,” the Court said. Further, “When assessing an application for refugee status, the competent authorities cannot reasonably expect, in order to avoid the risk of persecution, the applicant for asylum to conceal his homosexuality in his country of origin or to exercise reserve in the expression of his sexual orientation.” In other words, if an “out” gay person would likely be targeted for persecution in the country of origin, he or she may qualify for asylum.
These were apparently rulings of first impression for the Court, and are binding throughout the European Union. Thus, as a practical matter, the ruling signals that LGBT people from countries in Africa, the Middle East, the Americas and Asia that may impose heavy criminal penalties for homosexual acts are likely to prevail on claims for refugee status if they can make their way to a European Union country, and their case will be strengthened if they can show that they had already been targeted for persecution in their home country.
The European Court of Human Rights’ decision in the challenge to the Greek civil union law turned heavily on the progress that LGBT people have made in achieving legal recognition for their relationships in countries that are signatory to the Convention on Human Rights, because the Court takes note of such trends in deciding whether the Convention’s broadly worded protection for family life and requirements for equal treatment have been violated. The plaintiffs relied on a 2010 decision by the Court in Schalk and Kopf v. Austria, in which the Court had acknowledged that a cohabiting same-sex couple living in a “de facto partnership” came within the scope of family life protected by the Convention. Thus, the government of Greece was in the position of having to justify a deliberate decision it made when establishing its new civil union status in 2008 for excluding same-sex couples.
The idea of civil unions was embraced because of the increasing phenomenon of different sex couples living together without marrying, and frequently having children within the context of such relationships. The government decided that it would be useful to create a status less formal and structured than marriage that would be available to such couples, partly to protect the interests of their children, but also to protect the interest of surviving partners to inherit and to address other property interests. At the time the new law was being debated, there was considerable discussion about the decision to omit same-sex couples, which was opposed by the National Human Rights Commission and the Scientific Council of Parliament, but the Minister of Justice stated that “society today was not yet ready to accept cohabitation between same-sex couples.” The legislature proceeded to adopt the measure as proposed by the government, despite warnings that it might be held to violate Greece’s obligations under the Convention. In defending its action before the Court, the government argued that same-sex couples could achieve many of the same rights bestowed on civil union partners through private contracting, but the plaintiffs argued that not all of these could be achieved and there were also intangible aspects of legal recognition.
In order for a law to violate the Contention’s provision on discrimination, the Court would first have to determine whether the plaintiffs’ “situation is comparable to that of different-sex couples wishing to enter into a civil union.” As to that, “The Court reiterates that same-sex couples are just as capable as different-sex couples of entering into stable committed relationships. It therefore considers that the applicants are in a comparable situation to different-sex couples as regards their need for legal recognition and protection of their relationship.” Rejecting the government’s “private contracting” argument, the Court said, “even if it were to be considered valid, it does not take account of the fact that the civil partnerships provided for by [the Greek law] as an officially recognized alternative to marriage have an intrinsic value for the applicants irrespective of the legal effects, however narrow or extensive, that they would produce.” Further, “Same-sex couples sharing their lives have the same needs in terms of mutual support and assistance as different-sex couples. Accordingly, the option of entering into a civil union would afford the former the only opportunity available to them under Greek law of formalizing their relationship by conferring on it a legal status recognized by the State. The Court notes that extending civil unions to same-sex couples would allow the latter 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 recognized by the State.”
As to Greece’s argument that its motivation in adopting civil unions involved protecting children, the Court pointed out that same-sex couples also raise children who need the same protection. “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 questions between same-sex and different-sex couples who are not parents,” it also observed. The Court also pointed out that the explanatory report issued by the legislature “offers no insight into the legislature’s decision to limit civil unions to different-sex couples.”
Perhaps most significantly, the Greek law’s exclusion of same-sex couples made it a significant outlier from the emerging trend in Europe towards legal recognition for same-sex couples. The Court observed that nine member states allow same-sex marriages, and seventeen member states “authorize some form of civil partnership for same-sex couples. As to the specific issue raised by the present case,” continued the Court, “the Court considers that the trend emerging in the legal systems of the Council of Europe member States is clear: of the nineteen States which authorize 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 also noted resolutions by the European Parliament calling on member states to extend legal recognition to same-sex couples.
“The fact that, at the end of a gradual evolution, a country finds itself in an isolated position as regards one aspect of its legislation does not necessarily imply that that aspect conflicts with the Convention,” the Court wrote. “Nevertheless, in the view of the foregoing, the Court considers that the Government have not offered convincing and weighty reasons capable of justifying the exclusion of same-sex couples from the scope of [the civil union law],” and thus found a violation of the Convention, and ordered the government to pay damages to the plaintiffs for the deprivation of their rights, rejecting the Greek government’s argument that a declaration of rights would be “sufficient redress for the non-pecuniary damage sustained by the applicants.” The plaintiffs were awarded 5,000 Euros each as compensation, and Greece was also taxed with the Plaintiffs’ litigation costs.
In E.B. v. Austria, the Human Rights Court considered the refusal by Austrian authorities to “delete the criminal convictions from [the applicants’] criminal records, even though the offence in question had been abolished.” Each of the five applicants had been convicted of engaging in “homosexual acts with consenting adolescents within the age bracket of 14 to 18.” The Constitutional Court of Austria found the relevant criminal law provision to be unconstitutional in 2002, largely on grounds that the provision in question applied only to men having sex with boys, there being no parallel application to girls. Subsequently, Austria repealed the provision in question, adopting a new law revising the age of consent downward and adjusting the circumstances under which criminal penalties would apply to sexual acts involving teenagers, turning on issues such as the maturity of the teen, among other factors. However, the new law did not provide for adjusting the status of persons who had been convicted under the old law, and Austrian authorities rejected attempts by the plaintiffs to have their convictions reconsidered or their records corrected.
The Court found that “the storing by a public authority of information relating to an individual’s private life amounts to an interference within the meaning of Article 8, and that the protection of personal data is of fundamental importance to a person’s enjoyment of his or her right to respect for private and family life, as guaranteed by Article 8 of the Convention.” Noting that criminal laws get revised from time to time, the court observed that in the normal event of such revisions, there would be no obligation to adjust or expunge criminal records just because of such legislative changes. “The situation is different, however, as regards convictions under Article 209 of the Criminal Code,” said the Court, because the legislature had repealed and replaced the provision after the Constitutional Court found it to be unconstitutional. Thus, the new law was adopted “not as part of a general process to adapt the Criminal Code to respond to the needs of a changing society, but to eliminate a provision that was in contradiction to the Federal Constitution.”
“Since keeping an Article 209 conviction on someone’s criminal record may have particularly serious consequences for the person concerned,” wrote the Court, “the legislator, when amending the relevant legal provision in order to bring it into conformity with modern standards of equality between men and women, should have provided for appropriate measures, such as introducing exceptions to the general rule. The Government, however, have not provided any explanation as to the purpose of leaving unamended the provision on maintaining convictions on the criminal record,” so the Court concluded that Article 8 was violated. The Court awarded the applicants damages of 5,000 Euros each, and also awarded litigation costs. Because this is a ruling by one section of the Court, it is subject to appeal by the Austrian government.